Ellison and Comcare (Compensation)

Case [2020] AATA 698

Ellison and Comcare (Compensation) [2020] AATA 698 (2 April 2020)

Division:GENERAL DIVISION

File Number:          2018/3084

Re:  DAVID ELLISON          

APPLICANT

COMCAREAnd  

RESPONDENT

DECISION

Tribunal:Member K. Parker

Date:2 April 2020

Place:Melbourne

The Tribunal affirms the decision under review.

.................[sgd]................................

Member K. Parker

Catchwords

WORKERS’ COMPENSATION – “ceased effects” determination – claim for payment of medical expenses and incapacity payments under s 16 and s 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) – applicant suffered from an underlying degenerative lumbar spine disease prior to 2009 – claim made by applicant for back injury suffered as a result of a specific incident on 21 April 2009 – Comcare accepted liability under s 14 for “lumbar sprain” – Comcare misdescribed compensable injury – Tribunal found that compensable injury was an aggravation of applicant’s underlying disease – effects of compensable injury ceased to exist as from 11 January 2018 to the present time and at the present time – ongoing symptoms after 11 January 2018 arose from effects of applicant’s underlying disease – non-binding observation made that underlying disease was contributed to, to a significant degree, by the general nature and conditions of applicant’s employment with the employer from 2002 to 2009 – scope of applicant’s claim did not extend to this injury – Tribunal did not have jurisdiction to make decision awarding payment of compensation under s 16 or s 19 to applicant in respect of ongoing effects of the underlying disease after 11 January 2018 – applicant at liberty to make further claim in respect of underlying degenerative disease – decision affirmed

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)

Safety, Rehabilitation and Compensation Act 1988 (Cth), s 4, 5A, 5B, 6, 14, 16, 19, 54.

Cases

Abrahams v Comcare (2006) 93 ALD 147
Australian Postal Corporation v Trevor Arthur Nadge [1994] FCA 1163
Brackenreg v Comcare (2010) 187 FCR 2092009
Canale v Commissioner of Main Roads (1982) 1 WCR (WA) 163
Comcare v Muir (2016) 150 ALD 321
Comcare v Power (2015) 238 FCR 187
Cory Brothers & Co Ltd v Hughes [1911] 2 KB 738
Re Durham and TNT Australia Pty Ltd (2011) 124 ALD 136
F&T Grassi Pty Ltd v Ellendale Estate Pty Ltd [1985] WAR 294
Lang v Comcare (2007) 94 ALD 141
McDonald v Director-General of Social Security (1984) 1 FCR 354
Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468
Phillips v The Commonwealth [1964] 110 CLR 347
Reitano v Commonwealth of Australia (1985) 9 ALN N201
Salisbury v Australian Iron and Steel Ltd (1943) 44 SR (NSW) 157
Szabo v Comcare [2012] FCAFC 129
Telstra Corporation Ltd v Hannaford (2006) 151 FCR 253
The Commonwealth v Muratore [1978] 141 CLR 296

REASONS FOR DECISION

Member K. Parker

2 April 2020

  1. This application is about whether the Applicant, Mr David Ellison, is entitled to receive incapacity payments and payment of medical expenses under ss 19 and 16 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act)…

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Details
AGLC
Ellison and Comcare (Compensation) [2020] AATA 698
Case
[2020] AATA 698
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal by Mr Ellison against a decision by Comcare affirming its determination that it had no present liability to pay compensation for a compensable injury from 11 January 2018 onwards. Mr Ellison had lodged a claim for medical expenses and incapacity payments under sections 16 and 19 of the *Safety, Rehabilitation and Compensation Act 1988* (Cth). The dispute centred on whether Comcare had misdescribed the compensable injury and whether the effects of that injury had ceased by 11 January 2018, with subsequent symptoms arising from an underlying degenerative lumbar spine disease. The Administrative Appeals Tribunal was required to determine these issues.

The Tribunal was tasked with determining whether Comcare had misdescribed the diagnosis of the compensable injury sustained by Mr Ellison on 21 April 2009. Furthermore, it needed to ascertain whether the effects of this compensable injury had ceased to exist from 11 January 2018 to the present. If the effects of the compensable injury had ceased, the Tribunal also had to consider whether the conditions for entitlement to compensation under sections 16 and 19 of the Act were met during that period, specifically whether claimed medical treatment was reasonable and the amounts appropriate, and whether Mr Ellison was incapacitated for work as a result of the injury.

The Tribunal found that Comcare had indeed misdescribed the compensable injury, which it determined to be an aggravation of Mr Ellison's underlying degenerative lumbar spine disease, rather than a simple "lumbar sprain." However, the Tribunal concluded that the effects of this specific compensable injury had ceased to exist as from 11 January 2018. It reasoned that any ongoing symptoms experienced by Mr Ellison after this date arose from the effects of his pre-existing underlying degenerative disease, not the aggravation caused by the 2009 incident. The Tribunal noted, without binding effect, that the underlying disease may have been significantly contributed to by the general conditions of his employment between 2002 and 2009. Crucially, the scope of Mr Ellison's claim did not extend to this underlying disease, and therefore, the Tribunal lacked jurisdiction to award compensation under sections 16 or 19 for its ongoing effects after 11 January 2018. The Tribunal affirmed Comcare's decision, while also observing that Mr Ellison was at liberty to make a further claim specifically in respect of his underlying degenerative disease.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Mr Ellison acquired and commenced operating an arbory business in March 2019, in which he employs one arborist and two labourers to carry out the manual work.EVIDENCERadiological findings2009 On 9 May 2009, an X-ray was performed on Mr Ellison’s lumbar spine. The radiologist concluded, “The lumbar spine is normal. The SI joints are normal”. On 17 June 2009, a CT scan was performed on Mr Ellison’s lumbosacral spine. The radiologist made the following findings:[25]A focus of trabecular coarsening and fairly well defined transition zone is noted right posteriorly at L3 vertebra extending to the pedicle, measuring 24 x 16 x 12mm, likely a haemangioma. Vertebral body heights are maintained. Slight narrowing at L5/S1 disc space associated with postero-lateral osteophytosis, on the left slightly impinging on the exiting L5 nerve root. Adjacent vertebral sclerosis, slight annular disc bulging partially effacing the anterior epidural fat space. Facet joint prominence is mild.L4/5 annular disc bulging slightly bows the anterior theca with mild central canal stenosis, sparing the exiting nerve roots.[25] Refer to T-Documents T9/29.2011 A further CT scan was performed on Mr Ellison’s back on 11 February 2011 and reported as showing:[26]L5-S1 disc desiccation with left sided lateral osteophyte which is contacting the exiting left L5 root. Diffuse annular bulge L4-5 disc. [26] Refer to T-Documents T11/34 and T13/36. On 19 May 2011, a MRI scan was taken of Mr Ellison’s lumbar spine. The radiologist concluded as follows:[27]?haemangioma,?focal fibrous dysplasia right L3 pedicle exteniing(sic) into the adjacent body. Radial tear and dorsal bulge L4-5 disc contacting the right L5 nerve and dorsal left eccentric caudal protrusion L5/S1 disc indenting the left S1 nerve. A bone scan may be considered. [27] Refer to T-Documents T17/40. The following day, an X-ray was performed on Mr Ellison’s back and the radiologist concluded as follows:[28]Lumbar vertebral body heights are maintained. Disc spaces are normal. Facet joints are normal. Spinal canal dimensions are exit foramina are not compromised.[28] Refer to T-Documents T18/41 and T30/54. On 13 July 2011, a further CT scan was performed on Mr Ellison’s lumbar spine and the radiologist made the following findings:[29]Lytic area noted through L3 posterior body extending into the right pedicle. non expansile. No cortical break Vertebral height is preserved.Comparison made with the previous CT dated 17/06/2009.Rest of the lumbar vertebrae appear normal. Minimal spondylotic change is noted at L5-S1 level. Disc height is preserved. Facet joints are normal. SI joints are normal.CONCLUSION:Appearances have remained stable with no further progression.Features are consistent with benign lesion such as haemangiomata.[29] Refer to T-Documents T20/43 and T31/55. On 15 July 2011, a whole-body bone scan was performed which showed mild facet joint disease present in the left side of L2/3 and at the lumbosacral junction. The “tracer activity” was normal throughout the remainder of the lumbar spine.[30][30] Refer to T-Documents T21/44 and T28/52.2015

Decision

Reasons for decision

The decision under review in this application is the decision of Comcare dated 6 April 2018[2] affirming its primary determination dated 11 January 2018[3] that it had no present liability to pay such compensation to Mr Ellison in respect of the Compensable Injury with effect on, and from, 11 January 2018 (Decision Under Review).[2] Refer to T-Documents T159.[3] Refer to T-Documents T137. Comcare lodged a set of documents under s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) which the Tribunal will refer to as the T-Documents. Mr Ellison lodged a witness statement made by him on 21 May 2019 (Mr Ellison’s Statement). Additional medical reports were lodged with the Tribunal by both parties. Mr Ellison lodged a statement of facts, issues and contentions in May 2019 (Mr Ellison’s SFIC). Comcare lodged a statement of facts, issues and contentions in June 2019 (Comcare’s SFIC). Mr Ellison lodged an outline of submissions in July 2019 (Mr Ellison’s Outline of Submissions). Further short submissions were made by Mr Ellison in February 2020 following requests for further information made by the Tribunal. At the hearing, oral evidence was given by Mr Ellison; his treating orthopaedic surgeon, Mr Royston Carey;[4] and two consultant orthopaedic surgeons, Mr John O’Brien andMr Iain Kelman. The Tribunal also had access to Mr Ellison’s medical records held by Bairnsdale Medical Group, Dr Philip Sewell, treating general practitioner, and Dr Carey, following their production under summonses. [4] The Tribunal will refer to Mr Royston Carey as Dr Carey in these Reasons for Decision to avoid confusion with references elsewhere to Mr Mark Carey (Mr Carey) who was counsel for Mr Ellison in this application. Upon careful consideration of the evidence before the Tribunal and the oral and written submissions made by the legal representatives of both parties, the Tribunal has decided to affirm the Decision Under Review for the reasons set out below.ISSUES The issues that arise for determination by the Tribunal are: (a)whether Comcare misdescribed the diagnosis for the Compensable Injury when it accepted Mr Ellison’s claim for compensation in respect of the injury he suffered as a result of a specific incident on 21 April 2009;(b)whether the effects of the Compensable Injury had ceased to exist as from 11 January 2018 until the present time and at the present time; and (c)if so, whether the other entitling circumstances that would give rise to an entitlement by Mr Ellison to be paid compensation under ss 16 and 19 of the Act (arising from the wording of those respective provisions), existed during this period, namely: (i)in the case of s 16, whether the claimed medical treatment was reasonable for Mr Ellison to obtain in the circumstances and whether the amount of compensation was appropriate in respect of those medical expenses; and (ii)in the case of s 19, whether Mr Ellison was “incapacitated for work” as a result of the injury.RELEVANT LEGISLATION

Ratio Decidendi

Legal Principle Established

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