Ellison v Comcare

Case [2022] FCA 95

FEDERAL COURT OF AUSTRALIA

Ellison v Comcare [2022] FCA 95

File number: VID 284 of 2020
Judgment of: MURPHY J
Date of judgment: 14 February 2022
Catchwords: WORKERS’ COMPENSATION – whether the Administrative Appeals Tribunal erred in determining that it had no jurisdiction to consider a claim for compensation under ss 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) – whether the materials before Comcare in the reconsideration application raised the asserted claim for compensation – appeal allowed – application remitted to the Tribunal for determination according to law
Legislation:

Administrative Appeals Tribunal Act 1975 (Cth) ss 43(1), 44

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4(1), 5A, 5B, 14, 16, 19, 29, 53, 54, 60, 61, 62, 63, 64

Veterans’ Entitlements Act 1986 (Cth) s 120

Cases cited:

Abrahams v Comcare [2006] FCA 1829; 93 ALD 147

Australian Postal Corporation v Hughes [2009] FCA 1057; 111 ALD 579

Benjamin v Repatriation Commission [2001] FCA 1879; 70 ALD 622

Bushell v Repatriation Commission [1992] HCA 47; 175 CLR 408

Chetcuti v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 98

Comcare Australia v O'Dea [1997] FCA 1409

Comcare v Muir [2016] FCA 346; 150 ALD 321

Comcare v Power [2015] FCA 1502; 238 FCR 187

Ellison v Comcare [2020] AATA 698

Farrell v Comcare [2015] FCA 1337; 148 ALD 527

Frosch v Comcare [2004] FCA 1642

Haberfield v Department of Veterans Affairs as Delegate for Comcare [2002] FCA 1579; 121 FCR 233

Kennedy v Comcare [2014] FCA 82

Leach v Comcare [2021] FCAFC 134

Lees v Comcare [1999] FCA 753; 56 ALD 84

Lodkowski v Comcare [1998] FCA 158; 53 ALD 371

McDonald v Director-General of Social Security [1984] FCA 59; 1 FCR 354

Munswamy v Australian Postal Corporation [2015] FCA 678

Pelgrave v Comcare Australia [2002] FCA 1025

Re Durham and TNT Australia Pty Ltd [2011] AATA 802; 124 ALD 136

Re Muir and Comcare [2015] AATA 612

Reitano v Commonwealth of Australia [1985] FCA 657

Salisbury v Australian Iron and Steel Ltd [1943] WCR (NSW) 97; 44 SR (NSW) 157

Scott vCopenhagen Reinsurance Co (UK) Ltd [2003] EWCA Civ 688; 2 All ER (Comm) 190

Sellick v Australian Postal Corporation [2009] FCAFC 146; 113 ALD 58

Szabo v Comcare [2011] AATA 114

Szabo v Comcare [2012] FCA 28; 126 ALD 469

Szabo v Comcare [2012] FCAFC 129

Telstra Corporation Ltd v Hannaford [2006] FCAFC 87; 151 FCR 253

Teubner v Humble [1963] HCA 11; 108 CLR 491

Division: General Division
Registry: Victoria
National Practice Area: Administrative and Constitutional Law and Human Rights
Number of paragraphs: 146
Date of hearing: 30 September 2021
Counsel for the Applicant: Mr P Hanks QC and Mr M Carey
Solicitor for the Applicant: Slater & Gordon
Counsel for the Respondent: Ms C Dowsett
Solicitor for the Respondent: Moray & Agnew

ORDERS

VID 284 of 2020
BETWEEN:

DAVID ELLISON

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AGLC
Ellison v Comcare [2022] FCA 95
Case
[2022] FCA 95
Decision Date

CaseChat Overview and Summary

In the case of Ellison v Comcare, Mr Ellison, a former Marine Tactical Officer for Customs, sought compensation for a lower back injury he sustained during a training exercise in 2009. The dispute centred on whether the Administrative Appeals Tribunal (AAT) correctly determined that it lacked jurisdiction to review the decision of Comcare, which had declined to pay ongoing medical expenses and incapacity payments under sections 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth). The Federal Court was tasked with determining whether the AAT erred in affirming the reconsideration decision of Comcare.

The primary legal issue was whether the materials before Comcare in the reconsideration application raised a legitimate claim for compensation. Specifically, the court had to decide if the requirement for medical treatment and incapacity payments were due to the injury sustained in April 2009 or if they were related to degenerative changes consistent with the aging process. The court needed to ascertain whether the AAT had properly applied the law in affirming Comcare's decision.

The court held that the AAT erred by not considering whether the materials before Comcare raised a legitimate claim for compensation. The court found that the AAT failed to address whether the medical evidence indicated that the requirement for medical treatment and incapacity was related to the compensable injury in 2009 or due to degenerative changes. The court emphasised that the AAT should have considered the medical evidence in determining whether the claim was legitimate. Consequently, the court set aside the AAT's decision and remitted the matter back to the AAT for determination according to law. The court also ordered that unless either party opposed the costs order within seven days, the respondent was to pay the applicant's costs of the proceeding on a party-party basis.

Orders

Orders of the court

1. The decision of the Administrative Appeals Tribunal made on 2 April 2020 to affirm the decision under review be set aside, and the Applicant’s claim be remitted to the Tribunal to be determined according to law.

2. Unless, within seven days from the date of this order either party files and serves short written submissions (not more than three pages) opposing the order, the Respondent is ordered to pay the Applicant’s costs of and incidental to this proceeding on a party-party basis, to be agreed and if not agreed to be assessed by a Registrar on a lump sum basis.

3. In the event that within seven days a party makes submissions in opposition to the costs order proposed in Order 2, the other party shall within seven days thereafter file responding short written submissions (not more than three pages). The issue of costs will then be determined on the papers.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

The “reviewable decision” before the Tribunal in the present case was the reconsideration decision dated 6 April 2018.THE FACTUAL AND PROCEDURAL BACKGROUND The factual and procedural background here set out is uncontentious in the appeal, but that does not necessarily mean it will be uncontentious upon the Tribunal hearing the remitted application. The background is drawn from the Tribunal’s reasons, the documents before the Tribunal and the evidence before the Court. At all material times Mr Ellison was employed by Customs as a Marine Tactical Officer, having commenced in 2002. On 21 April 2009 Mr Ellison claimed to have hurt his lower back while participating in a “Use of Force” group training exercise held in Canberra as part of his employment with Customs, which exercise involved the participants “tagging” each other within a confined space. When there was a break in the exercise, Mr Ellison said he had to lie down on the floor due to the pain in his back. In the Injury Information Form he completed that day, Mr Ellison described the claimed injury as “substantial pain in lower back” suffered at 8.50am on 21 April 2009 when he was undertaking a “warm up exercise involving rapid running and manoeuvring in [a] small area.” The Incident Report which was also completed that day described the injury and circumstances of injury in similar terms. The following day Mr Ellison consulted Dr John Broderick, a general practitioner practising in Canberra, who prescribed anti-inflammatories and pain-relieving medication, and issued him with a medical certificate. The medical certificate stated that Mr Ellison suffered from a “musculo ligamentous strain lumbo-sacral spine”. After the incident Mr Ellison remained in Canberra for three days before driving to his home in Bairnsdale, Victoria. Upon arriving home, Mr Ellison saw his usual general practitioner, Dr Philip Sewell, who issued him with further medical certificates and continued to treat him over some years. Mr Ellison said that over the following few months his back “felt better to a degree”, but he said “it was never right”. Initially, Mr Ellison was incapacitated for work as a result of his injury from 21 April 2009 to 19 July 2009, but by reason of his roster he did not actually return to work until 8 August 2009.The compensation claim On 2 June 2009 Mr Ellison lodged a claim for workers compensation pursuant to s 54 of the SRC Act on the prescribed Claim Form, attaching a medical certificate as required. Mr Ellison completed Part 1 of the Claim Form as required.(a)Question 10 asked:For what injury or illness are you claiming workers’ compensation?Quote the precise diagnosis as stated on a medical certificate. For example: diagnosed conditions are: disc prolapse, strained cruciate ligament and anxiety disorder, and they are not, back pain, sore knee and stress.Mr Ellison answered:Muscle, soft tissue and disc damage. “Musculo ligamentous strain of lower back.”(b)Question 12 asked:When were you injured or when did you first notice you were ill?Give approximate time if exact time is not known.Mr Ellison answered 21 April 2009 at 9.00 am.(c)Question 16 asked:Have you ever had a similar symptom, injury or illness, work-related or otherwise?Mr Ellison ticked the box marked “yes” and answered:Soreness and stiffness to lower back. 2-3 times in the last 5 years.(d)Question 24 asked:What were you doing at the time you were injured or contracted your illness?i.e: What started the chain of events that led to your injury or illness?Mr Ellison answered:Completing morning warm-up for first lesson of the day, which involved rapid zig zag running movements.(e)Question 25 asked:What action, exposure or event happened to cause your injury or illness?For example: I slipped on the floor, I lifted a box.Mr Ellison answered:Stretching, zig zag running or lunges.(f)Question 26 asked:What actually injured you, or made you ill?For example: a car, the floor, a computer keyboard, a person, a stairway, a box.Mr Ellison answered, “one of the above”, referencing his answer to question 25.The determination to accept liability

Evidence

Evidence Before The Court

The Tribunal’s decision may be summarised as follows:(a)under the heading “Relevant Legislation” (at [8]-[14]) the Tribunal set out the applicable provisions of the SRC Act;(b)under the heading “Background” (at [15]-[35]) the Tribunal summarised Mr Ellison’s work history, including the physically demanding work which he undertook with Customs; and noted the injury he suffered in the 2009 Workplace Incident. It summarised the evidence as to Mr Ellison’s condition and treatment and noted that as a result of his low back condition Mr Ellison ceased working for Customs in May 2015;(c)under the heading “Evidence”, the Tribunal summarised the various radiological findings in relation to Mr Ellison’s low back condition (at [36]-[44]) being the results of x-rays, CT scans and MRIs performed in relation to Mr Ellison’s lumbar spine from 2009 to 2015;(d)also under the heading “Evidence” (at [45]-[124]), the Tribunal recounted or summarised “Mr Ellison’s evidence”:(i)that he did not have “any ongoing back pain” prior to the 2009 Workplace Incident, and that following that incident he was in “continuing pain to different degrees and [his] movements were restricted depending on the activities [he] had undertaken that day”, and since the incident he had been in “constant pain and had restricted movement” (at [45]-[46]);(ii)regarding incidents of low back pain he suffered, as recorded in the clinical notes of treating doctors, which preceded the 2009 Workplace Incident, described as the “2003 NZ cramped driving event”, the “2004 beach rugby tackle event” and the “2004 lifting trailer event” (at [47]-[54]);(iii)regarding the details of the Claim Form he lodged after the 2009 Workplace Incident (at [55]-[56]);(iv)regarding the history of medical certificates he had provided and the medical treatment he had received since the 2009 Workplace Incident (at [57]-[73]);(v)as to his periods of absence from work after the 2009 Workplace Incident (at [74]-[80]);(vi)regarding the extent of any improvement in his back condition after the 2009 Workplace Incident (at [81]-[83]);(vii)regarding incidents of low back pain he suffered after the 2009 Workplace Incident, as recorded in the clinical notes of treating doctors, described as the “2011 Lorne surf event”, the “2013 fun run event”, the “2013 flare up while working on a ship”, “other injuries sustained in 2013 and 2014”, the “March 2014 plane event” (which may have involved two incidents), and the “April 2014 home gym event” (at [84]-[98]);(viii)regarding the decision, in consultation with a rehabilitation consultant, for him to cease duties with Customs in May 2015 and to pursue retraining and alternative employment (at [99]-[100]);(ix)that he was able to perform maintenance work on his four-acre property which he purchased in 2010 (at [101]-[103]);(x)that he took over ownership of an established arbory (tree lopping) business in March 2019, and his work in that business which was restricted to administration, quotes, maintenance organisation, and sometimes “a bit of light raking” (at [104]-[114]);(xi)that he had been involved in building a kit plane on his property as a hobby between 2008 and 2016 (at [115]);(xii)as to his activities when he worked as a police officer prior to commencing his work for Customs and any injuries he had during that period (at [116]-[118]);(xiii)regarding the physically demanding duties he undertook in working for Customs as a Marine Tactical Officer (at [119]-[121]); (xiv)that he regarded the 2009 Workplace Incident as part of “a bigger incident” over the preceding years from the physically demanding nature of the work he undertook with Customs. He described the incident as the “catalyst” for the varying pain he has experienced since then (at [122]-[123]); and(xv)that he had not had any surgery since 2016, and since then had been managing his pain through exercise and knowledge and was not attending a physiotherapist (at [124]).None of those matters are contentious in the appeal herein.Summary of the medical evidence

Decision

Reasons for decision

The review officer reached the following conclusions:Given the chronological timeline and the passage of time since your injury in April 2009, and based on the specialist opinion of Dr Haynes, there is no objective evidence that a specific work injury in the past is the ongoing cause of your current back condition…Dr Haynes opined that your current presentation was due to the degenerative changes at L4/5 and L5/S1 which are consistent with the ageing process. Dr Haynes opined that any lumbar sprain [sustained in April 2009] had been superseded by degenerative changes in your lumbar spine.…Dr Haynes further opined that any incapacity to work was as a result of your degenerative back symptoms, rather than your employment injury in April 2009.It is acknowledged that you disagree with Dr Haynes’ opinion in relation to your ongoing entitlement to compensation for your compensable condition; however, Dr Haynes had the benefit of a holistic view of the evidence, is qualified to make an assessment regarding your physical condition and has an independent perspective. Dr Haynes provided a comprehensive medical assessment of you including a review of the previous medical records of independent experts and treating practitioners. Also, Dr Haynes’ opinion is the most independent contemporaneous medical evidence on your claim file. As such, I have preferred his specialist opinion over that of Dr Carey and Dr Sewell.The medical evidence indicates that the requirement for medical treatment and incapacity is related to your underlying degenerative condition and factors outside your employment (such as the possible non-compensable aggravation in 2013, alluded to in the Rehabilitation report dated 14 December 2015) rather than being due to the circumstances that gave rise to your compensable condition of lumbar sprain (unspecified) on 21 April 2009.Decision Therefore the determination dated 11 January 2018 which declined liability for medical expenses and incapacity payments under sections 16 and 19 of the SRC Act has been affirmed.(Emphasis added.)THE TRIBUNAL DECISION Mr Ellison applied to the Tribunal to review the reconsideration decision. On 2 April 2020 the Tribunal decided to affirm that decision. In its reasons for decision (at [1]) the Tribunal identified the question for decision as being whether Mr Ellison is entitled to receive incapacity payments under s 19 of the SRC Act, and payment of medical expenses under s 16, as from 11 January 2018 to the present “in respect of a lower back injury he suffered from a specific incident that took place on 21 April 2009 during a training course for which Comcare accepted liability to pay compensation under s 14 of the Act” (emphasis added), which the Tribunal defined as the “Compensable Injury”. The Tribunal defined the incident on 21 April 2009 as the “2009 Workplace Incident”. The Tribunal’s decision may be summarised as follows:(a)under the heading “Relevant Legislation” (at [8]-[14]) the Tribunal set out the applicable provisions of the SRC Act;(b)under the heading “Background” (at [15]-[35]) the Tribunal summarised Mr Ellison’s work history, including the physically demanding work which he undertook with Customs; and noted the injury he suffered in the 2009 Workplace Incident. It summarised the evidence as to Mr Ellison’s condition and treatment and noted that as a result of his low back condition Mr Ellison ceased working for Customs in May 2015;(c)under the heading “Evidence”, the Tribunal summarised the various radiological findings in relation to Mr Ellison’s low back condition (at [36]-[44]) being the results of x-rays, CT scans and MRIs performed in relation to Mr Ellison’s lumbar spine from 2009 to 2015;(d)also under the heading “Evidence” (at [45]-[124]), the Tribunal recounted or summarised “Mr Ellison’s evidence”:(i)that he did not have “any ongoing back pain” prior to the 2009 Workplace Incident, and that following that incident he was in “continuing pain to different degrees and [his] movements were restricted depending on the activities [he] had undertaken that day”, and since the incident he had been in “constant pain and had restricted movement” (at [45]-[46]);(ii)regarding incidents of low back pain he suffered, as recorded in the clinical notes of treating doctors, which preceded the 2009 Workplace Incident, described as the “2003 NZ cramped driving event”, the “2004 beach rugby tackle event” and the “2004 lifting trailer event” (at [47]-[54]);(iii)regarding the details of the Claim Form he lodged after the 2009 Workplace Incident (at [55]-[56]);(iv)regarding the history of medical certificates he had provided and the medical treatment he had received since the 2009 Workplace Incident (at [57]-[73]);(v)as to his periods of absence from work after the 2009 Workplace Incident (at [74]-[80]);(vi)regarding the extent of any improvement in his back condition after the 2009 Workplace Incident (at [81]-[83]);(vii)regarding incidents of low back pain he suffered after the 2009 Workplace Incident, as recorded in the clinical notes of treating doctors, described as the “2011 Lorne surf event”, the “2013 fun run event”, the “2013 flare up while working on a ship”, “other injuries sustained in 2013 and 2014”, the “March 2014 plane event” (which may have involved two incidents), and the “April 2014 home gym event” (at [84]-[98]);(viii)regarding the decision, in consultation with a rehabilitation consultant, for him to cease duties with Customs in May 2015 and to pursue retraining and alternative employment (at [99]-[100]);(ix)that he was able to perform maintenance work on his four-acre property which he purchased in 2010 (at [101]-[103]);(x)that he took over ownership of an established arbory (tree lopping) business in March 2019, and his work in that business which was restricted to administration, quotes, maintenance organisation, and sometimes “a bit of light raking” (at [104]-[114]);(xi)that he had been involved in building a kit plane on his property as a hobby between 2008 and 2016 (at [115]);(xii)as to his activities when he worked as a police officer prior to commencing his work for Customs and any injuries he had during that period (at [116]-[118]);(xiii)regarding the physically demanding duties he undertook in working for Customs as a Marine Tactical Officer (at [119]-[121]); (xiv)that he regarded the 2009 Workplace Incident as part of “a bigger incident” over the preceding years from the physically demanding nature of the work he undertook with Customs. He described the incident as the “catalyst” for the varying pain he has experienced since then (at [122]-[123]); and(xv)that he had not had any surgery since 2016, and since then had been managing his pain through exercise and knowledge and was not attending a physiotherapist (at [124]).None of those matters are contentious in the appeal herein.Summary of the medical evidence

Ratio Decidendi

Legal Principle Established

On 6 April 2018 a Comcare review officer decided to affirm the determination dated 11 January 2018. The reasons for decision stated:In reviewing the determination regard has been given to all the relevant evidence contained within your claim file, the reasons for requesting a reconsideration and the relevant provisions of the SRC Act.On 2 June 2009 you submitted a claim for compensation for ‘musculo ligamentous strain of lower back’. You claimed you first noticed your symptoms on 21 April 2009 and first sought treatment with Dr John Broderick (general practitioner) on 22 April 2009. You claimed you sustained your injury when you were completing a morning warm-up. You also noted on your claim form that you had experienced similar symptoms of soreness and stiffness in your lower back two to three times in the last five years.By determination dated 20 June 2009, liability was accepted for lumbar sprain (unspecified). The determination noted that the evidence supported that your claimed condition arose out of or in the course of your employment.By determination dated 11 January 2018, liability for ongoing medical treatment and incapacity was declined. The termination was based on the opinion of Dr Philip Haynes (consultant occupational physician) who considered that your current lumbar condition was related to pre-existing degenerative changes consistent with the ageing processes and not related to the lumbar sprain injury that was sustained in the course of your employment on 21 April 2009.On 11 March 2018, you requested reconsideration of the determination dated 11 January 2018.The issue to decide in this reconsideration is whether you are entitled to compensation for medical expenses and incapacity payments in respect of lumbar sprain (unspecified). I note that you dispute the labelling of your accepted condition, however, Comcare have continued to pay compensation for your injury since 2009, irrespective of the labelling of your accepted condition, and, consequently this review is based on the medical evidence at hand.To be entitled to compensation for medical treatment and incapacity payments under sections 16 and 19 of the SRC Act, it must be satisfied that the requirement for medical treatment and incapacity payments are as a result of the injury sustained on 21 April 2009.(Emphasis added.) Various medical reports were before Comcare in the reconsideration application, which the review officer summarised in the following terms:(a)Dr Haynes’ report dated 14 November 2017:In his report dated 14 November 2017, Dr Haynes diagnosed you with disc changes at L4/5 and L5/S1 levels of the lumbar region consistent with degenerative processes. Dr Haynes opined that any lumbar sprain has been superseded by degenerative changes in the lumbar spine. Dr Haynes opined that this condition was likely to become progressively worse with ageing which occurred in all persons. Dr Haynes commented that the MRI scan investigation reports support his conclusion. Dr Haynes considered that your back condition would be in its present state whether or not you had been undertaking work activities of a Marine Tactical Officer.…Dr Haynes did not consider that your incapacity for work was contributed to by your employment, noting that your current degenerative back symptoms prevented you from the performance of your duties as a Marine Tactical Officer…Dr Haynes considered that you were fit to undertake work duties where you could stand or sit as required and avoid repetitive bending or lifting…(b)Dr Sewell’s report dated 5 December 2017:In his report dated 5 December 2017, Dr Philip Sewell (general practitioner) noted the report of Dr Haynes and agreed with Dr Haynes’ diagnosis of disc changes at L4/5 and L5/S1 levels on [sic] the lumbar region. However, he disagreed with Dr Haynes’ opinion that your current presentation was due to the ageing process. Dr Sewell considered that if it were not for the duties you performed over a period of seven years, you would not have developed the degenerative disease in your spine. Dr Sewell opined that your current condition was due to the incident in 2009 and the duties you performed over a period of seven years.…Dr Sewell agreed with Dr Haynes’ opinion that you had a capacity to work, however, due to your geographical isolation from suitable jobs and your inability to travel for long periods of time in a car, prevented you from obtaining gainful employment.(c)Reports by Dr Carey, dated 26 August 2015, 22 September 2015 and 30 January 2018:Dr Carey did not agree with Dr Haynes’ opinion that your back condition had changed from being caused by the accepted injury to that of a degenerative/constitutional/congenital condition.…Dr Carey does not provide any opinion on your capacity to work, rather he just disagreed that your condition was now degenerative and continued to opine that your current condition was as a result of the initial injury in 2009.(d)A report of Dr Craig Mills, a consultant orthopaedic surgeon engaged by Comcare, dated 30 December 2015:In his report dated 30 December 2015, Dr Craig Mills (orthopaedic surgeon) diagnosed you with two-level discal disease and two-level facet disease mostly on the left hand side and mildly degenerative facet joints on the right. Dr Mills considered that your condition was consistent with the stated cause of your injury [in April 2009].(e)A Rehabilitation Management Functional Capacity Assessment report dated 14 December 2015:The Rehab Management Functional Capacity Assessment report dated 14 December 2015, stated that you reported a gradual onset of lower back pain which you attributed to your work on a customs boat. You reported that you had experienced many episodes of back pain over a period of four years (2011-2015). You reported that you [initially] experienced a lower back ‘spasm’ while completing a warm up for a training course when based in Canberra [in 2009]. You reported that you continued to experience occasional flare ups. You reported that in 2013, you…completed a fun run when you felt a twinge in your back that caused an aggravation of your lower back injury. You reported that you attempted to return to work three or four times since this incident however you continued to experience spasms and symptom aggravation upon returning to work.