Frew and Comcare (Compensation)

Frew and Comcare (Compensation) [2018] AATA 3647 (27 September 2018)
Division:GENERAL DIVISION
File Number 2015/6772 and 2016/2380
Re:David Frew
APPLICANT

ComcareAnd
RESPONDENT

DECISION
Tribunal:Dr Damien Cremean, Senior Member
Date:27 September 2018
Place:Melbourne

(1) In relation to application number 2015/6772, the Tribunal affirms the decision under review.
(2) In relation to application number 2016/2380, the Tribunal affirms the decision under review.
.............................[sgd]...............................
Dr Damien Cremean, Senior Member

Catchwords
COMPENSATION – long employment history – compensable injury to back – back surgery – whether painful back due still to such injury – if so, whether myotherapy expenses and household expenses payable – decisions denying benefits affirmed
Legislation
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 16, 20 and 29.
REASONS FOR DECISION
Dr Damien Cremean, Senior Member
27 September 2018

There are two applications to be determined by the Tribunal, 2015/6772 and 2016/2380, and in both the Applicant is Mr David Frew.
In application number 2015/6772, Mr Frew seeks review of a determination made by the Respondent on 30 September 2015 (affirmed on 11 December 2015), that compensation under section 16 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (‘the Act’) is not payable to him for myotherapy.
In application number 2016/2380, Mr Frew seeks review of a determination made by the Respondent on 9 March 2016 (affirmed on 15 April 2016), which found that he had no present entitlement to medical expenses, incapacity payments and household services under sections 16, 20 and 29 of the Act respectively.
Relevant Legislation
Section 16 of the Act outlines the provision of compensation in respect of medical expenses etc. Subsection one relevantly provides that:
(1) Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.
Section 20 provides for compensation for injuries which have resulted in incapacity:
(1) Compensation payable to an employee who is incapacitated for work as a result of an injury is determined in accordance with this section if:
(a) the employee is retired from his or her employment (whether the employee retired voluntarily or was compulsorily retired); and
(b) the employee receives a pension under a superannuation scheme as a result of the employee’s retirement.
(2) Comcare is liable to pay compensation to the employee, in respect of the injury, in accordance with this section for each week after the date of the retirement during which the employee is incapacitated.
Finally, section 29 details compensation that is payable for household services and attendant care services obtained as a result of a non-catastrophic injury:
(1) Subject to subsection (5), where, as a result of an injury (other than a catastrophic injury) to an employee, the employee obtains household services that he or she reasonably requires, Comcare is liable to pay compensation of such amount per week as Comcare considers reasonable in the circumstances, being not less than 50% of the amount per week paid or payable by the employee for those services nor more than $200.
(2) Without limiting the matters that Comcare may take into account in determining the household services that are reasonably required in a particular case, Comcare shall, in making such a determination, have regard to the following matters:
(a) the extent to which household services were provided by the employee before the date of the injury and the extent to which he or she is able to provide those services after that date;
(b) the number of persons living with the employee as members of his or her household, their ages and their need for household services;
(c) the extent to which household services were provided by the persons referred to in paragraph (b) before the injury;
(d) the extent to which the persons referred to in paragraph (b), or any other members of the employee's family, might reasonably be expected to provide household services for themselves and for the employee after the injury;
(e) the need to avoid substantial disruption to the employment or other activities of the persons referred to in paragraph (b).
Note: In relation to paragraph (2)(d), see also subsection 4(2).
Hearing
The hearing of this matter was held on 27 and 28 November 2017. The Respondent was represented by Ms Cathy Dowsett of Counsel, instructed by Lehmann Snell Lawyers.
Mr Frew represented himself at the hearing. He gave oral evidence and was cross‑examined by counsel for the Respondent. The Applicant filed a Statement of Facts Issues and Contentions, dated 30 August 2017, detailing his case in both proceedings. Mr Frew also provided the Tribunal with a list of cases. However, he did not explain how and why those cases on the list are relevant.
Furthermore, Mr Frew supplied extensive documentation relating to various matters including: Acute Back Pain Management and Lumbar Microdiscectomy – Information Sheet from St Vincent’s Hospital and Lumbar Spine Surgery from the Royal Australian College of Surgeons. Again, Mr Frew did not indicate how all these various materials were to be considered by the Tribunal. The Tribunal acknowledges that Mr Frew is not legally trained. However, it is not for the Tribunal to go through a wealth of material to make out a party’s case for them. This is something they must do.
Mr Frew was unable to call his medical evidence of choice, specialist Neurosurgeon Mr Craig Timms. During an adjournment, he telephoned Mr Timms’ surgery and was told he was in theatre and would again be in theatre the following day. Nor did Mr Frew have an available GP to provide evidence. In recent times, he has been going to a clinic in Bendigo and does not have a regular GP. Mr Frew was however prepared to rely upon the opinion evidence of Dr Sleigh, a witness for the Respondent.
Contentions
Mr Frew contends that his workplace injury is the cause of his back injury and that he continues to suffer from the compensable injury. Therefore, he seeks to have the two reviewable decisions set aside. The Respondent relies on the opinions expressed by Dr Khurana to support its contention that the decisions under review should be affirmed.
Mr Frew considers the issues in relation to the first claim (2015/6772) to be: whether myotherapy treatment is reasonable to obtain in the circumstances; and if so, what is the appropriate amount of compensation for such treatment.
In the second claim (2016/2380), Mr Frew identifies the issues as: whether he continues to suffer from the effects of his compensable injury described as aggravation of displacement of intervertebral disc-lumbar; whether his workplace injury contributes to his symptoms to a significant degree; and whether he has a present entitlement to compensation under sections 16, 20 and 29 of the Act.
History
The Applicant commenced employment with the Department of Human Services some time during 1989. These matters arise out of workplace injuries suffered by Mr Frew on 28 December 2000 and 19 March 2007.
In the first of these in 2000, Mr Frew injured his back at work lifting a large sign; and the Respondent accepted liability for lumbar sprain.
In the second incident, Mr Frew again injured his back at work lifting a large suitcase full of prosecution briefs. Mr Frew described the suitcase as very large. He said he experienced sudden pain in his back on the left side. On 2 February 2008 the Respondent accepted liability for aggravation of displacement of intervertebral disc‑lumbar.
From the time of this incident, Mr Frew said the pain had never gone away but there are some times when it is a little easier. Following the second injury, in 2008, Mr Frew underwent back discectomy surgery at L4/5 and has attended doctors both before and since then on many occasions.
There are many medical reports on file detailing the Applicant’s conditions on various occasions of presentation. I have considered each and all of them but note that many were prepared long ago and do not relate to the question of whether Mr Frew still suffers from a compensable injury.
Mr Frew is 54 years of age and lives on a property of about 10 acres at Faraday in Victoria with his wife and young son. He does not work; he said he is now compulsorily retired. At the time of his injuries, Mr Frew was working with the Department of Human Services in the Comcare fraud area. He had also been a union official. He stopped working in about May 2008. He had started out work as a postal officer, after a period of unemployment after leaving school.
Evidence of the Applicant
In the course of giving evidence, Mr Frew spoke of his pain symptoms. He mentioned being restricted when bending over due to the pain he suffers. The Applicant indicated that the pain is mainly in his lower left back and left leg, down into his big toe. He described the pain as a throbbing pain. Mr Frew said he takes Panadeine or Panadeine Forte for the pain, but he may take other medications also. He has difficulty sleeping due to pain. Mr Frew described himself as a rotisserie in bed because he is constantly turning backwards and forwards.
The Applicant attributes his pain to his 2007 compensable injury in particular, rather than to his earlier injury in 2000. He says his workplace injury on that occasion still contributes to his condition and does so to a significant degree.
Mr Frew continues to suffer pain, and in evidence said he has also developed a painful condition in his arm. He gave evidence that he disagrees with the notion that the pain he experiences is in his mind rather than being physically based. He said he disagreed absolutely and he referred to the six screws in my back.
Mr Frew says he is fatigued and still cannot work. He relies on others. For example, others mow his lawns for him on his large property.
As noted above, for his pain, the Applicant said he takes significant pain medication. He indicated in evidence that he has something of a stockpile of medications he can take including Endone and Panadeine Forte. The Tribunal does not doubt that Mr Frew feels widespread pain for which he takes medication for relief. Nor does it doubt that his condition, in one way or another, prevents him working.
The concern however, is whether the Applicant’s condition may still be related to his compensable injury having regard to the terms of s 16 of the Act. That is to say, in particular, whether the Tribunal may be satisfied that Mr Frew still suffers from an injury for which the Respondent remains liable to pay compensation.
Based on all the evidence, including especially the medical evidence, the Tribunal is not reasonably satisfied that Mr Frew’s condition, despite its disabling effects brought on by pain, continues to be within the purview of the Act.
Medical Evidence
As previously acknowledged, there are numerous medical reports on file going back over the years to 2007, which have been considered by the Tribunal. There is a very detailed history of the various medical consultations set out in a report of Dr G Khurana, consultant neurosurgeon, dated 10 August 2015.
Mr Craig Timms
A letter dated 27 January 2016, by Mr Timms (who the Applicant had wished to call) states that; a lot of younger people can still have quite a significant amount of pain from the lumber instrumentation itself and particularly after the spine is fused and I suspect that that might be the cause of David’s pain. Mr Timms suggests a further procedure to remove the lumber instrumentation and just to check the exiting nerve roots.
This statement does not seem to directly support a view that Mr Frew’s pain is due to his injury as such, as opposed to the surgical treatment he has undergone for it. It appears to attribute Mr Frew’s problems to the surgery itself. However, as noted previously, Mr Timms was not called by Mr Frew for one reason or another. It would have been useful to actually hear from him, but the Tribunal was not given this opportunity.
Dr Kevin Sleigh
Mr Frew, as noted above, was content to rely upon the report of Dr Sleigh dated 3 May 2017. Dr Sleigh interviewed and examined Mr Frew on 29 March 2017 for about two and a half hours. He said: I did not find any contradiction between that casually observed and that formally examined during my assessment. This is in contrast to the opinion expressed by Dr Khurana following his examination of Mr Frew as outlined below.
Dr Sleigh expressed the overall opinion that Mr Frew’s condition is chronic. He said Mr Frew’s life is limited by his pain and that he relies on narcotic analgesics for pain relief. He described Mr Frew’s pain as chronic low back pain which is sometimes called ‘failed back surgery syndrome’. Dr Sleigh notes that the pain developed after a series of unsuccessful spinal operations. This chronic pain which the Applicant suffers, he said, makes him totally unfit for work.
It is true that Dr Sleigh is plainly of the view that Mr Frew suffers a great deal of pain. This is not in dispute, from the Tribunal’s perspective. Nor does the Tribunal dispute that Mr Frew is unable to resume work.
However, it appears that Dr Sleigh attributes the Applicant’s pain to the surgeries undergone by him, rather than his compensable injury.
If so, then Dr Sleigh’s position appears to be similar to that of Mr Timms. It therefore follows that, neither medical practitioner, both of whom were not called to give evidence, seems to support the view that Mr Frew’s condition is due to his injury in 2007, rather than some other factor, mainly the Applicant’s multiple failed spinal operations.
Dr Gautam Khurana
The above conclusion is consistent in several ways with the evidence of Dr Khurana.
Dr Khurana examined Mr Frew on 22 July 2015 and provided a report dated 10 August 2015, and a supplementary report dated 17 November 2017.
It cannot be found that Dr Khurana’s examination of Mr Frew was not adequate. There is no evidence which satisfies the Tribunal that the consultation should have been longer or undertaken in some other way.
Dr Khurana expresses a view in his supplementary report that Scheuermann’s disease is likely to be present in Mr Frew. That disease, he says is:
associated with thoracic kyphosis, wedging of thoracic vertebrae particularly in the mid-section of the thoracic spine, there is likely a constitutional growth anomaly of the vertebral [sic] body leading to wedging radiologically and structurally, and there is association of the… disease… with scoliosis.
Of particular importance, in light of Mr Frew’s overall complaint, Dr Khurana notes that the disease is associated with thoracic and lumber pain.
Dr Khurana’s opinion is that on the day he examined Mr Frew there were several non‑physiological features at play. Accordingly, he said: it is my opinion that the symptoms exceed the signs. He further stated that:
There is no real mechanical basis for why Mr Frew cannot participate in the workforce, the lack of participation does not appear to be related to his physical state based on the examination I carried out and on comparison with the findings and comments of previous specialists.
In his oral evidence, Dr Khurana indicated that Mr Frew’s presentation on the day of assessment was non-physiological. By this he meant the Applicant’s pain is due to psychiatric causes or abnormal pain behaviour, as opposed to organic causes.
Dr Khurana went somewhat further during cross-examination in answer to a question by Mr Frew and said: with respect, Mr Frew, the way you portrayed yourself on the day of the examination was not specific to any particular pattern of disease and I … labelled it as non-physiological which is my professional independent view of that portrayal.
Nothing was advanced by Mr Frew which in the Tribunal’s view undermined Dr Khurana’s medical opinion. I regard Dr Khurana as giving expert evidence in a truthful way. I cannot see that Dr Khurana’s evidence was at all controverted or undermined and in my view it stands unchallenged.
Referring again to the views of Dr Sleigh, the Respondent argues that there are a number of non-employment related conditions which impact on Mr Frew’s current presentation. Dr Sleigh makes mention of the involvement of narcotic analgesics for pain relief in that presentation. The Tribunal is not satisfied of how they could constitute a non-employment related condition that causes the Applicant pain. Indeed, one would think it would be the reverse.
Conclusion
In all the circumstances, however, the Tribunal does not find itself reasonably satisfied that Mr Frew’s condition is or is any longer due to employment factors, either at all or to any significant degree.
The Tribunal’s view is based, in particular, on the evidence of Dr Khurana who appeared in person before the Tribunal. His evidence was that Mr Frew’s condition is due to non-employment factors. Dr Khurana mentioned that it is likely that the Applicant suffers from Scheuermann’s disease (or failed back surgery syndrome as it was termed) which is associated with thoracic and lumbar pain. This diagnosis would explain Mr Frew’s chronic back pain and would also mean that his back pain is not due to his employment injury.
Dr Khurana’s opinion is supported in several areas by the opinions of Mr Timms and Dr Sleigh. Both, while acknowledging Mr Frew’s condition, in the view of the Tribunal attribute the Applicant’s pain to the consequences of surgery and not to the work-related injury.
It is the Tribunal’s view that, on the evidence, and on the balance of probabilities, Mr Frew is no longer suffering the effects of his claimed workplace injury at all, or to any significant degree.
Accordingly, this means that Mr Frew has failed to satisfy the Tribunal that the correct or preferable decision is one that he is still entitled to compensation under s 16 of the Act.
It follows that the decision under review in application number 2016/2380 must be affirmed.
In consequence of the above finding, it follows that Mr Frew is not entitled to benefits under either s 20 or s 29 of the Act.
Had the Tribunal formed the view that Mr Frew was still suffering from his compensable injury it would not have regarded myotherapy as medical treatment under the Act or, as submitted by the Respondent, lawn mowing and home maintenance as matters which may now be reasonably required by him.
It follows that the decision under review in application number 2015/6772 must also be affirmed.

I certify that the preceding 52 (fifty two) paragraphs are a true copy of the reasons for the decision herein of Dr Damien Cremean, Senior Member
......[sgd].............................................
Associate
Dated: 27 September 2018

Date(s) of hearing: 27-28 November 2017

Date final submissions received: 7 December 2017

Applicant: In person

Counsel for the Respondent: Ms Cathy Dowsett

Solicitors for the Respondent: Lehmann Snell Lawyers

[2018] AATA 3647

27 September 2018

Key Legal Topics

Areas of Law

Employment Law

Statutory Interpretation

Legal Concepts

Causation

Remedies

Statutory Construction

Date(s) of hearing:	27-28 November 2017
Date final submissions received:	7 December 2017
Applicant:	In person
Counsel for the Respondent:	Ms Cathy Dowsett
Solicitors for the Respondent:	Lehmann Snell Lawyers