Goodricke and Comcare (Compensation)

Case [2017] AATA 1249

Goodricke and Comcare (Compensation) [2017] AATA 1249 (31 July 2017)

Division:GENERAL DIVISION

File Number(s):      2015/2982

Re:Peter Goodricke

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Deputy President Gary Humphries

Date:31 July 2017

Place:Canberra

The decision under review is affirmed.

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

Deputy President Gary Humphries

Catchwords

WORKERS COMPENSATION – pre-2007 claim under relevant Act accepted – whether claimed condition presently has a ‘continuing contribution’ from employment – test is ‘material contribution’ not ‘significant contribution’ – aggravation of chronic pain syndrome (bilateral) – Asperger’s Disorder and/or underlying personality disorder – psychological condition overlaps with physical condition – present condition caused by factors unrelated to original claim – no ongoing material contribution – decision affirmed
MEDICAL EVIDENCE – where new scientific methods or approach – Tribunal to assess decisions using current relevant scientific evidence

PRACTICE AND PROCEDURE – consent decision made by differently constituted Tribunal – Applicant sought to reopen or relitigate previously decided consent decision – whether Tribunal should exercise its discretion to relitigate in the context of these proceedings – claims of ‘economic duress’ considered – claims of jurisdictional error based on inherent unfairness considered – claims of misconduct by Applicant’s solicitors considered – no basis to permit relitigation of issue already decided – prejudice to Respondent would ensue were matter relitigated – Tribunal functus officio – request to reopen declined

Legislation

Administrative Appeals Tribunal Act 1975
Administrative Decisions (Judicial Review) Act 1977
Native Title Act 1993

Safety, Rehabilitation and Compensation Act 1988

Cases

Amaca Pty Ltd v Ellis; South Australia v Ellis; Millennium Inorganic Chemicals Ltd v Ellis (2010) 84 ALJR 226
Anderson v Australian Postal Corporation (1993) 32 ALD 138
Bogaards v McMahon (1988) 80 ALR 342
Brackenreg v Comcare [2010] FCA 724
Comcare v Power [2015] FCA 1502
Comcare v Sahu-Khan (2007) 156 FCR 536
Kovalev v Minister for Immigration and Multicultural Affairs (1999) 100 FCR 323
Matusko and Australian Postal Corporation (1995) 21 AAR 9
Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597
Montesalvo and Australian Postal Corporation [2011] AATA 319
Plumb v Comcare (1992) 39 FCR 236

Wiegand and Comcare [2014] 141 ALD 219

REASONS FOR DECISION

Deputy President Gary Humphries

31 July 2017

  1. In October 1999 Mr Peter Goodricke commenced employment with Health Services Australia (as it was then titled) (HSA) as a senior systems engineer. In that role he worked long hours, including extensive overtime, dealing with the then-pressing issue of the Y2K challenge. His work was almost exclusively keyboard-based, as a result of which he developed a medical condition in his upper limbs. The condition has been described at various points in the succeeding years as occupational overuse syndrome, RSI, fibromyalgia and chronic pain syndrome.

  2. In March 2000 Mr Goodricke lodged a claim for workers compensation for repetition strain injury in both arms. In June 2000 Comcare accepted liability for that condition, one presently described as aggravation of chronic pain syndrome (bilateral).

  3. Though he was contracted to work at HSA for three years, his employment…

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AGLC
Goodricke and Comcare (Compensation) [2017] AATA 1249
Case
[2017] AATA 1249
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal by Mr. Goodricke against a decision by Comcare regarding his workers' compensation claim. The dispute centred on whether Mr. Goodricke's current chronic pain condition, which he argued was not an aggravation of a pre-existing condition, continued to be materially contributed to by his past employment with HSA. The case was heard by Deputy Gary Humphries P.

The legal issues before the Tribunal were twofold: firstly, to determine whether Mr. Goodricke's accepted condition, chronic pain syndrome (bilateral), was presently materially contributed to by his employment with HSA, considering the aggravation of a pre-existing condition and the influence of psychological factors and unrelated causes. Secondly, the Tribunal was required to consider Mr. Goodricke's request to reopen a previous consent decision made in 2004, which had resolved earlier compensation disputes, on grounds including alleged economic duress, jurisdictional error, and misconduct by his former solicitors.

The Tribunal applied the legal principle that for a condition to be considered materially contributed to by employment, the contribution must meet an "evaluative threshold" and be "in a material degree; substantially, considerably." The Tribunal found that while Mr. Goodricke experienced chronic pain since his employment with HSA, and there was a substantial psychological overlay to his condition, the medical evidence did not establish that his employment with HSA continued to materially contribute to his condition by 31 March 2015. The Tribunal also declined to reopen the 2004 consent decision, noting that the issue of normal weekly earnings had been previously decided by consent and that Mr. Goodricke had been legally represented at that time. The Tribunal considered that relitigating the matter would cause prejudice to Comcare and that it was *functus officio* in relation to the 2004 decision.

The Tribunal affirmed the reviewable decision of 15 June 2015 and declined Mr. Goodricke's request to reopen the 2004 consent determination.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Mr Goodricke made reference to some of the medical evidence touching on conditions he had suffered prior to 1999 where upper body pain was a symptom. He said that, prior to commencing with HSA in 1999, there was no condition similar to chronic pain disorder. He experienced pain from time to time, sometimes as a result of specific injuries, but this pain – though often acute – always resolved. Subsequent to his employment at HSA a chronic pain condition developed. He said that therefore the chronic pain disorder could not be described as an aggravation of an earlier, pre-existing disease. For this reason he cavilled with Comcare’s designation of his accepted condition as aggravation of chronic pain syndrome (bilateral).THE MEDICAL EVIDENCE The medical reports of more than a dozen doctors were in evidence before the Tribunal, prepared in the period since 2000. However, the Tribunal’s attention was focused on the reports of doctors written from 2013 onwards. Several of them gave testimony at the hearing.Dr David Champion, Consultant Physician in Rheumatology Dr Champion examined Mr Goodricke in April 2003, and provided a report dated 6 May 2003. He opined that Mr Goodricke presented with a history and signs of a chronic regional cervicobrachial pain syndrome with neuropathic features, also known as occupational overuse syndrome, RSI or cumulative trauma disorder. He noted that it seemed likely that Mr Goodricke was slightly predisposed to upper limb chronic pain disorders having experienced these in a very mild form intermittently since his time as a student. Dr Champion considered that the sum total of Mr Goodricke’s work activity as a senior information technology officer at HSA from October 1999 to January 2000 put him at substantially increased risk of a chronic neck and/or upper limb pain disorder. His view was that Mr Goodricke’s condition had stabilised, but that he should be cautious about returning to any role with intensive keyboarding. He considered there was no effective treatment for Mr Goodricke’s condition. At Mr Goodricke’s request Dr Champion again reviewed him and provided a further report dated 16 April 2016. There he expressed the view that Mr Goodricke’s chronic cervicobrachial pain disorder was continuing and the associated central disorder of somatosensory processing (central sensitisation) had extended. He remained of the opinion that this condition was substantially causally influenced by the nature and conditions of Mr Goodricke’s employment in 1999-2000. Dr Champion also observed that: a)Mr Goodricke reported consistent, evolving and worsening symptoms since his previous review in 2003 saying that he has had no periods of freedom from symptoms during the past 13 years, but when he has peace of mind or is enjoying or being fulfilled by his work, his symptoms diminish;b)Mr Goodricke has been assessed as having autism spectrum disorder, meaning that he tends to see the world in black and white; c)he can’t be sure of the extent to which psychological factors have augmented the pain experience, but notes that he is not aware of any appreciable change in Mr Goodricke’s psychological state between 2003 and the present; d)Mr Goodricke’s condition has been sustained and extended by the continued use of computers and also no doubt by psychological inputs which inevitably occur in the chronic pain and medico-legal context; and e)Mr Goodricke’s psychological experiences have not been any more severe than the average person would have experienced going through many years of chronic pain.

Decision

Reasons for decision

Accordingly, the reviewable decision of 15 June 2015 is affirmed.REOPENING OF THE 2004 CONSENT DECISION Mr Goodricke asked the Tribunal to review a decision it had made on 6 August 2004, in proceedings also involving Comcare, following an agreement between the parties that those proceedings should be resolved by consent (the consent determination). The request was made by Mr Goodricke at the beginning of the hearing on 12 October 2016, the issue not having been specifically flagged in these proceedings hitherto. Comcare opposed the request. Briefly, the background to the consent determination is as follows. Mr Goodricke had initiated three applications before the Tribunal for merits review arising from his accepted condition of 2000. The applications related to three decisions by Comcare regarding his ongoing entitlement to compensation, particularly claims for permanent impairment and noneconomic loss compensation under ss 24 and 27 of the Act and for incapacity payments under s 19. With respect to the last of these, the calculation of his normal weekly earnings (NWE) was a relevant issue. As of late 2003 and early 2004 Mr Goodricke was represented in this litigation by Mr Jamie Roland of Colquhoun Murphy Lawyers. Negotiations between Mr Roland and the lawyer representing Comcare, Ms Rebecca Shelley, proceeded during 2004. On 3 August 2004 a Calderbank offer of settlement was made by Ms Shelley to Mr Ronald, which was accepted by Mr Ronald on the same day. The Tribunal made orders in accordance with the agreed terms on 6 August 2004. Pursuant to those terms, Comcare made a payment to Mr Goodricke and another to Colquhoun Murphy in respect of its costs. The Tribunal received three submissions from Mr Goodricke in support of his request to reopen this determination, one in the form of an affidavit. It also considered at least three oral submissions from him between October and December 2016. Notwithstanding those many opportunities, the precise nature of the arguments being put to the Tribunal in support of the request seemed to have shifted somewhat over time, and was, at points, somewhat difficult to follow. Dissatisfaction with the consent determination has motivated Mr Goodricke for some time. In proceedings before the Tribunal in 2011 he sought to agitate the issue of the correctness of the consent determination: see Goodricke and Comcare [2011] AATA 941. At that time the Tribunal concluded (at [6]):Mr Goodricke sought to attack the underlying quantification of his NWE from the date of his injury in 2000. But this matter has already been decided by the Tribunal in a consent decision in 2004. Mr Goodricke was legally represented in the 2004 proceedings that led to that decision and his NWE on and before 6 August 2004 will not be revisited in these proceedings. The Tribunal in the present instance has decided to consider the arguments put by Mr Goodricke for revisiting the consent determination under the following headings, reflecting what it perceives Mr Goodricke’s key arguments to be.Was the consent determination infected by jurisdictional error?

Ratio Decidendi

Legal Principle Established

The Tribunal is unable to accept this evidence. Very little of it was actually put in cross-examination to the witnesses who were supposedly out of step; much of it, indeed, was presented after the conclusion of the hearing when the opportunity for testing the evidence had passed. More particularly, the articles were presented as representations of general scientific trends, without any indication of how they related specifically to Mr Goodricke’s condition. In that context, their probative value is low. The High Court commented analogously on the use of evidence in this way in Amaca Pty Ltd v Ellis; South Australia v Ellis; Millennium Inorganic Chemicals Ltd v Ellis (2010) 84 ALJR 226 (at [62]):As explained at the commencement of these reasons, there being no direct evidence about what actually caused Mr Cotton's cancer, it was the plaintiff's case that the epidemiological evidence established facts which "positively suggest[ed], that is to say provide[d] a reason ... for thinking it likely" that, in exposing Mr Cotton to respirable asbestos fibres, the negligence of each defendant was a cause of his cancer. To draw an inference about causation from what was established by the epidemiological studies, it would be necessary to decide whether the particular case under consideration should be treated as conforming to the pattern described by the epidemiological studies. Absent evidence which suggests that the individual may stand apart from the ordinary, there may be sufficient reason to assume conformity, but whether or not that is so, it is important to recognise that the first step that must be taken, if an inference is to be drawn from epidemiological studies, is to relate the results of studies of populations to the particular case at hand. That step is not inevitable. (citations omitted.)CONSIDERATION There is no doubt that Mr Goodricke feels pain in his upper body. The Tribunal accepts that this pain, though fluctuating in intensity, has been with him more or less continuously since his employment with HSA in 1999-2000. The medical evidence presented during the hearing strongly suggests that, whatever the physical condition from which Mr Goodricke might be said to suffer, there is a substantial psychological overlay. To a certain extent all of the medical witnesses had difficulty separating psychological from physical elements of his condition. It was Comcare’s submission that, by 31 March 2015, the employment with HSA had ceased to materially contribute to Mr Goodricke’s condition. In Comcare v Sahu-Khan (2007) 156 FCR 536 the Federal Court held that the word material in the Act as it then stood imposed an evaluative threshold below which a causal connection may be disregarded. Finn J observed:[13] The modern approach to statutory interpretation, as is now well accepted, attributes a greater significance to context and legislative purpose than previously was the case: see CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384, at 408. That approach, in my respectful view, was adopted unexceptionably by French and Stone JJ in Canute in their treatment of the legislative history of the definition of “disease” in the SRC Act. I agree with what their Honours have said and, in particular, in their conclusion that the inclusion of the word “material” imposes an “evaluative threshold” below which a causal connection may be disregarded.[14] …[15] There are, in my view, obvious hazards in allowing finely nuanced differences in dictionary definitions to contrive the answer to this question, given as I have noted, that the word “material” in this context had its legislative meaning set in part by the qualification it imposed on the nature of the contribution required to be demonstrated before the provisions of the SRC Act were engaged. This said I consider that one of the meanings of the word “materially” in the Shorter Oxford English Dictionary probably captures the essence of what the legislature was conveying. That meaning is – “4. In a material degree; substantially, considerably.”An example given of this usage is that of contributing “materially to the funds required” for a purpose. This usage probably comes closer to what Davies J in Bendy described (at 325) as the “loose sense” of the definition of “material” in the Macquarie dictionary “namely, ‘of substantial import or much consequence’ [rather than the] legal sense of ‘pertinent’ or ‘likely to influence’”.[16] Bearing in mind that the course of statutory construction is often not aided by substituting for the word used in an enactment, another word which is not so used, probably the best that can ultimately be said is that the s 4 definition: (i) requires a stronger causal relationship between the employment and the ailment, etc suffered than that exacted by the 1971 Act;(ii) “in a material degree” requires an evaluation of all relevant contributing factors for the purpose of asking whether the employee’s employment did or did not contribute materially to the suffering of the ailment, etc, in question (“the threshold evaluation”);(iii) whether this will be so in a given case will be a matter of fact and degree.