Fisher and Comcare (Compensation) - [2023] AATA 1883

Fisher and Comcare (Compensation) [2023] AATA 1883 (29 June 2023)
Division:GENERAL DIVISION
File Number(s): 2020/1291, 2021/0283
Re:Francesca Fisher
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:A G Melick AO SC, Deputy President
Date:29 June 2023
Place:Hobart

The decisions under review are affirmed
...[sgn].....................................................................
A G Melick AO SC, Deputy President
Catchwords
Workers’ Compensation (Cth) — Injury — Disease — Whether injury arose out of or during the course of employment — Whether injury arising out of or during the course of employment aggravated an underlying condition — inconsistent evidence — pre-existing condition — decisions under review affirmed.
Legislation
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Cases
Adams and Comcare [2022] AATA 3404
Commonwealth and Beattie [1981] FCA 88
Ellison v Comcare [2022] FCA 335
Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 624
May v Military Rehabilitation and Compensation Commission (2015) 322 ALR 330
Military Rehabilitation and Compensation Commission v May [2016] HCA 19; (2016) 257 CLR 468
Miller and Comcare [2012] AATA 715
Tippett v Australian Postal Corporation (1998) 27 AAR 40
Wuth and Comcare [2022] FCAFC 42
REASONS FOR DECISION
A G Melick AO SC, Deputy President
29 June 2023
INTRODUCTION A G MELICK AO SC, DEPUTY PRESIDENT

The Applicant applied to the Administrative Appeals Tribunal (the Tribunal) for a review of two decisions. Both applications were heard together on 9, 10 and 27 September 2021.
The first reviewable decision dated 15 November 2017 is a Non-Economic Loss determination. (NEL Application 2020/1291)
That decision affirmed a primary determination dated 15 July 2016 which determined that the Applicant suffered a total permanent impairment of 28% for “aggravation of spinal stenosis cervical region”, but determined the Applicant was not entitled to any compensation under s 27 of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act), in respect of “non-economic loss”.
The delegated Review Officer found that the symptoms experienced by the Applicant related to a pre-existing non-compensable condition.
The second reviewable decision is a No Present Liability determination dated 10 December 2020. (NPL Application 2021/0283)
That decision affirmed the primary determination dated 2 November 2020 which determined that the Applicant had no present entitlement to compensation under section 16, “for incapacity benefits under sections 19 (medical expenses) and 20 (incapacity when in receipt of a superannuation pension) and household services under section 29” of the SRC Act, in respect to the accepted conditions of “aggravation of spinal stenosis in cervical region” and “aggravation of generalised anxiety disorder”.
The designated Review Officer was satisfied that the Applicant did not presently suffer from the effects of either of her accepted conditions and was therefore not entitled to medical expenses, incapacity payments and household services pursuant to the above-mentioned sections of the SRC Act.
The facts and evidence in this case were voluminous and complicated. The Applicant was self-represented and extremely thorough which caused, at times, some potentially confusing duplication of materials.
Before dealing with the medical evidence,…

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 Fisher and Comcare (Compensation)

Details

AGLC: Fisher and Comcare (Compensation) [2023] AATA 1883
Case: [2023] AATA 1883
Decision Date: 29 June 2023

CaseChat Overview and Summary

This matter concerned an appeal by Mrs Fisher against a decision by Comcare. The dispute centred on whether Mrs Fisher had sustained an injury, specifically an aggravation of a pre-existing condition, arising out of or during the course of her employment with Comcare. The appeal was heard by A G Melick AO SC, Deputy President.

The primary legal issues before the Tribunal were whether Mrs Fisher's cervical spine condition constituted an "injury" for the purposes of the relevant legislation, and if so, whether that injury arose out of or during the course of her employment. This involved determining whether a specific incident, referred to as "lift incident two," or her general duties at work had caused or aggravated an underlying degenerative condition in her cervical spine.

The Tribunal considered conflicting medical evidence. Dr Bruce Taylor, a neurologist, diagnosed an acute C7 radiculopathy following the incident in January 2001, noting that while degeneration of the cervical spine was a normal phenomenon for her age, the injury had not left her with significant disability but rather a predisposition to worsening symptoms with overuse. Dr Bakker, Mrs Fisher's general practitioner, recorded significant pain prior to "lift incident two" and noted a deterioration in her neck pain over time, with clinical entries indicating persistent pain radiating down her arms and increasing neck pain. Dr Bakker's letters to Comcare stated that Mrs Fisher sustained an injury at work due to a lift malfunction, resulting in daily cervical spine pain with radiation into both arms, and that her duties contributed to forward head flexion and associated pain. The Tribunal affirmed the decisions under review.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

His wife doesn't sleep through the night even though she goes to bed exhausted and falls asleep straight away.Medical Evidence In addition to the oral evidence provided, I have also considered the reported medical evidence provided to the Tribunal. I will set out relevant parts of the reports now. Aggravation of spinal stenosis in the cervical region Dr Bruce Taylor (neurologist) Dr Taylor provided a report dated 6 January 2003, he noted that he had seen the Applicant on ten occasions since 16 February 2000 when she presented with bilateral arm pain. Dr Taylor wrote that the most accurate diagnosis for the injury on 31 January 2001 was an acute C7 radiculopathy. He continued that he did not know if anything particularly precipitates or contributes to the development of radiculopathy except for sudden unexpected movement, stress of the neck, or repetitive overuse. The report also notes that the Applicant has some degeneration of the cervical spine which would be considered a normal phenomenon “in a lady of her age” and that the injury of January 2001 has not left her with “any significant disability”, rather a residual weakness “which can result in recurrence or worsening of her symptoms with overuse”. Dr Taylor concluded that Mrs Fisher will require further treatment as time goes by “as she has certanitly has a predisposition to develop significant worsening of the condition with incorrect use or overuse of the arm”. Dr Bakker (General Practitioner) Clinical notes from Dr Bakker provide that the Applicant suffered significant pain prior to lift incident two however there is no clear link between the persistent symptoms and the lift incident. Twelve months prior to lift incident two Dr Bakker recorded “neck is worse and TOTALLY is against having neck surgery”.[13] [13] Exhibit 26, page 28. The records indicate that significant health problems arose after lift incident two, including dental issues, lower back pain, sciatica, suspected bilateral carpal tunnel syndrome and wrist issues that led to the fusion in her right wrist.[14] [14] Exhibit 4, Exhibit 66, page 47. In a clinical entry dated 27 April 2010, Dr Bakker noted that the Applicant had seen Dr Paton in relation to pain relief and that there were problems with the last epidural being technically difficult.[15] Mrs Fisher was experiencing constant pain going down the arm and had been constantly taking Norspan patches but now wanted Panadeine Forte.[15] Exhibit 26, page 24 On 27 July 2010 Dr Bakker reported to Dr Paton that the Applicant had deteriorated in the past twelve months with increasing neck pain.[16] [16] Exhibit 33, page 10. In a letter dated 15 May 2013, addressed to Comcare, Dr Bakker wrote that Mrs Fisher sustained an injury at work when a lift malfunctioned (lift incident two), and as a consequence she is now suffering daily pain of her cervical spine with radiation into both arms. Dr Bakker provided another letter to Comcare, dated 28 July 2016 that describes Mrs Fisher as presenting with symptoms of pain in her cervical spine with forward head flexion whilst at work, as a result of her duties.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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