Flahive and Comcare
[2007] AATA 1703
•15 August 2007
Administrative Appeals Tribunal
REASONS FOR DECISION [2007] AATA 1703
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W 200600134, W 200600192
| GENERAL ADMINISTRATIVE DIVISION | ) | ||
| Re | JOHN FLAHIVE | ||
Applicant
| And | COMCARE |
Respondent
| Tribunal | Deputy President S D Hotop Dr P A Staer, Member |
Date15 August 2007
Date of Written Reasons 24 August 2007
Place Perth
At the conclusion of the hearing of these applications on 15 August 2007, the terms of the decision intended to be made and the reasons for that decision were stated orally by the Tribunal.
On 22 August 2007, the respondent requested the Tribunal to furnish to it a statement in writing of the Tribunal’s reasons for its decision.
The oral reasons for decision have been transcribed by Auscript Australasia Pty Ltd.
An edited copy of the transcript of those reasons is attached and is forwarded to the applicant and to the respondent as the reasons for the Tribunal’s decision.
.........[Sgd S D Hotop]..........
Deputy President
I certify that the 4 preceding paragraphs are a true copy of the reasons for the decision herein of
Signed: .......[Sgd Y Maker].......
Associate
Date of Hearing 15 August 2007
Date of Decision 15 August 2007
Date of Written Reasons 24 August 2007
Representative for the Applicant Self-representedSolicitor for the Respondent Brett Ablong
Dibbs Abbott Stillman
ORAL REASONS FOR DECISION (edited)
ADMINISTRATIVE APPEALS TRIBUNAL
DEPUTY PRESIDENT S D HOTOP and DR P A STAER, MEMBER
Re JOHN FLAHIVE and COMCARE – Matter No W200600134
PERTH, 15 AUGUST 2007
THE D.PRESIDENT: We’ve considered the evidence and the submissions that have been presented to us today and we feel in the position to announce our decision now. I shall do that right at the outset and then I will briefly indicate orally our reasons for arriving at the decision to which we have come. I will also ask Dr Staer to elaborate on the medical issues that have arisen for the determination in this case. To announce our decision up front, the decision is that we affirm both of the reviewable decisions that are before us today.
Briefly, our reasons are as follows.
The applicant, Mr Flahive, has 4 compensable conditions, that is to say, conditions which have been accepted as compensable under the Safety, Rehabilitation and Compensation Act 1988. They are noise effects, inner ear (left); torn meniscus, left knee; noise effects, inner ear (right), with a psychiatric sequela of major depressive disorder of moderate severity; and acoustic trauma syndrome/major depressive disorder. The issues before us today do not directly concern any of those compensable conditions. Rather, they concern conditions which have been described as chest infection or a lung condition, pneumonia, conditions of those kinds, which the applicant has, apparently, suffered, certainly, since 23 December 2005 when he had a fall. The question which generally arises for our determination is whether any of those conditions are related to any of his accepted compensable conditions; following on from that, whether Comcare is also liable to pay compensation under the Safety, Rehabilitation and Compensation Act to Mr Flahive in respect of those more recently contracted conditions of chest infection, lung condition and pneumonia. Associated with that issue, of course, is the issue of whether Comcare is liable to pay Mr Flahive compensation for the cost of reasonable medical treatment obtained in relation to those conditions.
There are two reviewable decisions before us. One dated 28 April 2006 which relates specifically to medical expenses, and the other dated 29 June 2006 which relates to the fundamental question of liability under section 14 of the Safety Rehabilitation and Compensation Act in respect of these chest, lung, pneumonia conditions. Also related to that is an issue of reasonable medical expenses.
I will take the second of those reviewable decisions first, if only because that is the one that relates to, what I described a minute ago as, the fundamental question in this case, and that is the question of liability under section 14 of the Act in respect of the chest, lung, pneumonia conditions. The respondent has submitted that there is no liability to pay compensation to Mr Flahive in relation to those conditions, essentially on two grounds. The first being that no valid or proper claim, under section 54 of the Act, has ever been lodged with Comcare by Mr Flahive in respect of those conditions. Secondly, on a medical basis, there is simply no causative relationship between any of those conditions and Mr Flahive’s Commonwealth employment or, indeed, any of the accepted compensable conditions from which he suffers.
Taking the issue in relation to the claim under section 54 first, we accept the respondent’s submission that Mr Flahive has not lodged a valid or proper claim in accordance with section 54 in respect of any of those conditions, they being his chest, lung or pneumonia conditions. For that reason alone compensation is not payable to him under the Act in respect of any of those conditions.
Section 54 sets out the requirements for a claim for compensation to be made and those requirements involve the lodgement of a claim form approved by Comcare and also a certificate by a legal qualified medical practitioner in accordance with the form approved by Comcare for that purpose. That is in subsection (2). Subsection (3) goes on to say:
Where a written claim… is given to a relevant authority under paragraph (2)(a) and the claim is not accompanied by a certificate of the kind referred to in paragraph (2)(b) ‑ ‑ ‑
that is to say, the medical certificate…
‑ ‑ ‑ the claim shall be taken not to have been made until such a certificate is given to that authority.
Subsection (5) goes on to say:
Strict compliance with an approved form referred to in subsection (2) is not required and substantial compliance is sufficient.
It can be seen from that section that two forms – two different forms – are referred to and are required to be lodged. The first is the Comcare claim form. The second is the accompanying medical certificate form. Both were tendered in evidence and, of course, we have the evidence before us in relation to the documentation which Mr Flahive did supply to Comcare in relation to the relevant conditions.
It is arguable whether he has sufficiently or, at least, substantially complied with the Comcare claim form. He did, after all, lodge with Comcare various notification and incident report forms and, of course, they were accompanied by various emails in relation to the incident in relation to which he sought compensation – or, at least, following which he sought compensation. So it may well be that what he did by way of lodging documentation might be enough to amount to substantial compliance with the Comcare claim form – although, as I say, that is a debatable point.
What we are certain about, however, is that he has not substantially complied with the other requirement, and that is to provide the requisite medical certificate. The Comcare medical certificate form was exhibit R2 and that form is quite a detailed form and it requires the medical practitioner to, amongst other things, describe the injury, the date of the injury, and express an opinion on causation, treatment and contributing or pre-existing factors, if any. So a lot of information is required in that form. The only medical certificates that are before us in evidence that relate to any of the relevant conditions were forms, one of which was provided by Dr Nikellys on 19 January 2006. That, merely, refers to a recent fall; it doesn’t go into any detail regarding any additional injuries that have arisen or may or may not have arisen out of that fall. It just simply contains a bare reference to a recent fall. It also refers to the accepted compensable condition of the knee condition. The other medical certificate was one that was provided by Dr Wolman on 8 March 2006, and in that medical certificate he referred to pneumonia but the only reason, so it seems, for referring to pneumonia was to explain that because of the pneumonia condition Mr Flahive would not be fit for the following two weeks to undertake his swimming exercise program. No information was given in relation to any possible connection between pneumonia and any compensable condition or any medication or medical treatment for any such compensable medical condition. Neither of those certificates amounts to substantial compliance with the requirement in section 54 subsection (2) paragraph (b), read with subsection (3) of section 54 of the Act.
So for that reason we find that Mr Flahive has not at any time made a valid claim for compensation in accordance with section 54 in respect of any chest infection, condition, lung condition or pneumonia condition. As I said before, that finding is sufficient in itself for us to then find that Comcare, the respondent, is not liable to pay compensation under the Safety, Rehabilitation Compensation Act to Mr Flahive in respect of any of those conditions.
However, we will also consider the medical question and whether there is any causative relationship between Mr Flahive’s chest, lung, or pneumonia conditions and any of his accepted compensable conditions, which I have mentioned at the outset, or any causative relationship between his chest etcetera conditions and any medical treatment which he has undertaken for any of his compensable conditions. We answer that question in the negative.
On the evidence before us and, in particular, the evidence of Dr Wolman, both in his reports that are before us and also in his oral evidence, and also the report of Dr Nikellys which is also before us, dated 8 November 2006, we are not satisfied on the balance of probabilities that there is any causative relationship between Mr Flahive’s chest, lung, or pneumonia conditions and any of his accepted compensable conditions, or any medical treatment which he has undertaken in respect of those conditions.
He referred in particular to a fall which he sustained on 23 December 2005 and his argument was that that fall resulted from dizziness which in turn resulted from medication which he was taking for his compensable conditions. On the medical evidence before us, we are not satisfied on the balance of probabilities that there is any connection between his chest, lung, or pneumonia conditions and the fall that he sustained on 23 December 2005.
He also referred to the swimming program that he was undertaking at a particular aquatic centre and in particular he submitted that the only place he could have caught pneumonia was by coming into contact with a particular person, on one occasion at least, at that aquatic centre. He presented to us what amounted to, I think, a statistical argument for saying that we should be satisfied on the balance of probabilities that he contracted his pneumonia infection at the aquatic centre, if not by the act of swimming itself, by coming into contact with someone during a visit to the aquatic centre for the purpose of his swimming exercise program.
Suffice it to say that what he has put to us is certainly within the realms of possibility but we are not necessarily persuaded by what Mr Flahive put to us in the way of statistical evidence. Notwithstanding the submissions he made in relation to that, we are not prepared to go any further than to say that we accept that it is possible that he contracted the pneumonia infection on such an occasion but we are not satisfied on the balance of probabilities that he did so.
I think they are the general findings that need to be made in relation to our conclusion that Comcare is not liable under the Safety, Rehabilitation and Compensation Act to pay compensation to Mr Flahive in respect of his chest, lung, or pneumonia conditions.
For those reasons we affirm the reviewable decision that was dated 29 June 2006.
As regards the earlier reviewable decision of 28 April 2006, this related to medical expenses and the issue there was whether we are satisfied that his chest/lung/pneumonia conditions and medical treatment obtained in relation thereto are causally related to any of his compensable injuries. Essentially for the reasons that I have given in relation to the medical evidence, our answer is the same. We are not satisfied on the balance of probabilities that any of the medical treatments referred to in the reviewable decision of 28 April 2006 are causally related to any of his compensable injuries. So for that reason we find that Comcare is not liable under section 16 of the Safety, Rehabilitation and Compensation Act to pay compensation to Mr Flahive in relation to any of those medical expenses. So for that reason essentially, we also affirm the reviewable decision dated 28 April 2006.
I think, in general terms, that covers the major issues that were before us today for determination but I will now invite Dr Staer to make any comments he may wish to make in relation to the medical evidence and the medical issues.
DR STAER: Mr Flahive has made a claim for “pneumonia”. The Tribunal does not find that there has ever been a specific diagnosis of pneumonia. There was and there is evidence of some streaky scarring in the right mid lobe of the lung but this is of long-standing and could relate to past infection, but there is no definite evidence that way. The applicant brought up two arguments for the cause of his pneumonia – the first, that he caught it while swimming as part of the treatment for his compensable diseases but it was very specifically stated by Dr Wolman:
I do not believe that he had pneumonia from swimming.
That was in his written report and he affirmed that in his oral evidence to the Tribunal. In a general sense, the Tribunal would not think of a swimming place as being where you catch chest infections otherwise all swimming baths would be closed down if there was a compensable risk.
The second argument that the applicant put was that it related from a fall that he had on 23 December 2005. He did not seek medical treatment after that fall although he states that he did have significant initial pain and the pain continued. In fact, he was not seen in consultation by Dr Wolman until 11 January 2006 and no mention of the fall was made. In February, the applicant did develop a respiratory infection but again that was not specifically diagnosed as pneumonia either clinically or on X-ray.
For the fall to have contributed to a chest infection, the fall would have to have been really significant with trauma to the lung itself, and Dr Wolman stated very positively that it would have required a very significant injury to cause pulmonary contusion. For these added reasons the Tribunal finds the applicant, in its opinion, never had pneumonia, and certainly any chest problems that he currently has are not related to the fall in December 2005.
THE D.PRESIDENT: Or to the swimming.
DR STAER: Or to the swimming, yes.
THE D.PRESIDENT: All right. Well, that completes our statement of reasons. It will be recorded in a transcript, and an edited copy of that transcript will in due course be provided to both of you together with our formal decision. So we are now adjourned.
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