Edward Scerri and Comcare - [2013] AATA 302

[2013] AATA 302

Division GENERAL ADMINISTRATIVE DIVISION

File Number

2012/1984

Re

Edward Scerri

APPLICANT

And

Comcare

RESPONDENT

DECISION

Tribunal
Mr S. Webb, Member
Dr B. Hughson, Member

Date 14 May 2013

Place Canberra
The decision under review is affirmed.
.......................[sgd].................................................
Mr S. Webb, Member
COMPENSATION – neck injury claim – claim not barred due to lack of notice – migrainous vertigo arising from defence service – not established that claimed neck injury is related to defence service – fall in the course of employment on a return to work program – liability accepted for a left shoulder injury – subsequent onset of neck symptoms – not established that the neck symptoms are causally attributable to the fall – cervical spondylosis – not established that cervical spondylosis was caused or aggravated by the fall – decision affirmed
Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 5A, 5B, 14, 53, 156
Frosch v Comcare [2004] FCA 1642
Joye v Beach Petroleum NL & Anor [1996] FCA 1552
Lang v Comcare [2007] FCA 47
PMT Partners Pty Limited (in Liquidation) v Australian National Parks and Wildlife Service [1995] HCA 36
Tippett v Australian Postal Corporation (1998) 27 AAR 40
REASONS FOR DECISION
Mr S. Webb, Member
Dr B. Hughson, Member
14 May 2013

Edward Scerri served in the Royal Australian Air Force and worked on the F111 aircraft Deseal Reseal Program. Subsequently, he was employed by the Department of Defence (Defence) as an auditor. He has successfully claimed compensation in respect of a number of injuries, including migrainous vertigo. He has a history of falls and related injuries. His present claim relates to an alleged neck injury in the course of his employment by Defence. Comcare rejected the claim by primary determination and on reconsideration.
The brief background is that in 2006, Mr Scerri underwent hip replacement surgery following a fall in compensable circumstances. In the course of his recovery he returned to work on a graduated basis under a rehabilitation plan. He was permitted to work from his home for two days each week. 27 November 2006 was one such day. On that day, during a short break from his work, he ventured to his rear porch and descended some steps to his rear garden. On his return, he fell while ascending the steps, falling backwards and injuring his left shoulder. He informed his rehabilitation case manager, who called an ambulance. Mr Scerri did not require hospitalisation. He obtained medical treatment the same day from his treating general practitioner, Dr Gow, with whom he had a pre-existing appointment. Subsequently, he obtained physiotherapy treatment from Angela Fearon, who says that she provided “some treatment to [his] neck” when treating his left shoulder on 4, 11, 16 and 18 January and 6 March 2007[1]. We were informed that these physiotherapy treatments were paid for by the Commonwealth under arrangements determined following the Study of Health Outcomes for Aircraft Maintenance Personnel in respect of personnel involved in the F111 Deseal Reseal program.
[1]

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Edward Scerri and Comcare

Details

AGLC: Edward Scerri and Comcare [2013] AATA 302
Case: [2013] AATA 302
Decision Date

CaseChat Overview and Summary

The case involves Edward Scerri, who was employed by Comcare, and the dispute centres on whether the injuries sustained by Mr Scerri in a fall at work in November 2006 resulted in compensable claims. The matter was heard in the Federal Circuit Court of Australia. The central issue for the court was to determine whether Mr Scerri's neck pain and symptoms of cervical spondylosis were caused or significantly contributed to by the fall, or if they were part of his pre-existing conditions. The court needed to assess if the fall caused a separate injury to his neck, or if any neck pain he experienced was a continuation or exacerbation of his pre-existing condition.

In addressing the issues, the court examined the evidence presented and concluded that there was no clear evidence to establish that Mr Scerri's neck pain or cervical spondylosis were caused or significantly contributed to by the fall. The court held that unless the symptoms could be attributed to a new cause in the context of employment, such as an aggravation or worsening of symptoms in compensable circumstances, the symptoms are considered part of the existing condition. The balance of evidence did not support that the fall led to a separate injury or significantly contributed to Mr Scerri's cervical spondylosis.

Consequently, the court found that the decision under review, which likely involved a denial of compensation claims related to the alleged neck injury and cervical spondylosis, must be affirmed. The court was reasonably satisfied that the fall did not cause or significantly contribute to the neck pain or cervical spondylosis Mr Scerri experienced.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Unless severable by a new cause in the context of employment, such as an aggravation or worsening of symptoms in compensable circumstances, the symptoms of an injury are part of the injury[42]. So, too, the symptoms of an ailment, such as cervical spondylosis, are a part of the ailment unless they are attributable to a cause in employment that contributed, to a significant degree, to their onset or progress. The balance of the present evidence does not establish that any neck pain Mr Scerri claims to have experienced following the fall in November 2006, if he suffered any neck pain at all (which is not presently established), is severable from the frank shoulder injury he sustained.[42] Tippett v Australian Postal Corporation (1998) 27 AAR 40 at 44.Conclusion On the evidence before us, it is not established that Mr Scerri sustained a separate injury to his neck as a result of the fall he suffered on 27 November 2006. Furthermore, on balance, the present evidence does not establish that the fall contributed in any degree, let alone a significant degree, to cause, aggravate or render symptomatic his existing cervical spondylosis – we are reasonably satisfied that it did not. To the extent that Mr Scerri says that he experienced symptoms of pain in the area of his neck in the days and weeks after the fall he suffered on 27 November 2006, and we make no such finding, it is possible that he did so as a result of the left shoulder injury he sustained in that fall. It is also not established that the neck symptoms about which he complained later in April 2007, or in July 2009 are attributable to an injury to his neck that was contributed to in any degree by the fall on 27 November 2006. It can be accepted that presently Mr Scerri suffers from symptomatic cervical spondylosis, but it is not established that this ailment was significantly contributed to by the fall in the context of his employment in November 2006. It follows that the decision under review must be affirmed.

Ratio Decidendi

Legal Principle Established

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Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2012/1984
Re	Edward Scerri
APPLICANT
And	Comcare
RESPONDENT

Tribunal	Mr S. Webb, Member Dr B. Hughson, Member
Date	14 May 2013
Place	Canberra