Gregory and Comcare (Compensation)

Case [2018] AATA 2075

Gregory and Comcare (Compensation) [2018] AATA 2075 (3 July 2018)

Division:GENERAL DIVISION

File Number(s):      2016/6739

Re:Wayne Gregory

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Ms S Taglieri SC, Member

Dr R Walters, Member

Date:3 July 2018

Place:Hobart

The decision under review is set aside and remitted to the respondent to give effect to these reasons.

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

Ms S Taglieri SC, Member

Catchwords

COMPENSATION – liability for previously accepted injury – entitlement to medical expenses and incapacity payments – whether effects of compensable injury are continuing – whether incapacity and treatment results from the compensable injury – disc prolapse and degenerative changes in lumbar spine – decision under review set aside and remitted.

Legislation

Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 4, 16, 19

Cases

Asioty v Canberra Abattoir Pty Ltd [1989] HCA 40; (1989) 167 CLR 533
Australian Telecommunications Commission v Barker [1990] FCA 489
Brackenreg v Comcare [2010] FCA 724; (2010) 187 FCR 209
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
Comcare v Power [2015] FCA 1502; (2015) 238 FCR 187
Hart v Comcare [2005] FCAFC 16; (2005) 145 FCR 29
Re Hocking and Australian Postal Corporation [2002] AATA 963
Ilsley v Wattyl Australia Pty Ltd (1997) 75 FCR 1
Manns and Comcare [2012] AATA 462
March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506

REASONS FOR DECISION

Ms S Taglieri SC, Member
Dr R Walters, Member

3 July 2018

  1. This application concerns a review of a decision of the respondent to cease paying medical expenses and making incapacity payments under ss 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act) in respect of an injury suffered by the applicant on 21 January 1993.

  2. The respondent determined that it had no present liability to make incapacity payments or payment of medical expenses by determination dated 23 September 2016. That decision was subsequently affirmed on 25 November 2016 following reconsideration (the reviewable decision).

  3. The applicant made an application to this Tribunal on 14 December 2016 seeking a review of the reviewable decision.

  4. On 4 to 6 April 2018 inclusive, the Tribunal heard the application for review. At the conclusion of the hearing on 6 April 2018, leave was given to each of the parties to file a written submission in reply to the submissions made by the other party during the hearing. The applicant’s solicitors subsequently advised that they did not wish to make any further submissions, but the respondent filed written submissions dated 20 April 2018.

    LEGAL PRINCIPLES OF RELEVANCE TO REVIEW

  5. The Tribunal’s task on review in this case is influenced by the nature of the decision being reviewed. The decision made by the respondent of 25 November 2016 was that the applicant no longer required medical treatment or incapacity payments for the symptoms resulting from the injury of 21 January 1993. The decision does not dispute a liability for the original injury,…

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AGLC
Gregory and Comcare (Compensation) [2018] AATA 2075
Case
[2018] AATA 2075
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal by Gregory against a decision by Comcare regarding compensation for a previously accepted injury. The dispute centred on whether the effects of a compensable injury, specifically a disc prolapse sustained on 21 January 1993, continued to be a material contributing factor to the applicant's current lumbar spine condition, incapacity, and entitlement to medical expenses and incapacity payments. The decision was made by Ms S Taglieri SC, Member, of the Tribunal.

The primary legal issue before the Tribunal was to determine whether the applicant's ongoing lumbar spine condition and resulting incapacity were causally linked to the original injury sustained in 1993, or if intervening factors such as new injuries or the natural progression of degenerative changes had broken the chain of causation. The Tribunal was required to assess the evidence, particularly expert medical opinions, to ascertain if the prolapsed disc remained a relevant and material contributor to the applicant's current symptoms and inability to perform heavy work.

The Tribunal preferred the evidence of Dr Muthu and Mr Kossmann over that of Dr Drewry. It found that while degenerative changes in the applicant's lumbar spine by 2016 had multiple contributing factors, the disc prolapse in 1993 was a significant event that accelerated the degenerative process. Dr Muthu accepted that the prolapsed disc would never totally heal and that the 1993 injury probably accelerated degeneration, even though the applicant's subsequent work as a baggage handler also likely contributed. The Tribunal concluded that the 1993 injury constituted an injury within the meaning of the Act and remained a relevant and material contributing factor to the applicant's ongoing condition and incapacity. The Tribunal was not persuaded by Comcare's argument that new injuries or a separate degenerative condition had broken the chain of causation, finding little compelling evidence to support this. The Tribunal considered the applicant's intermittent symptoms and incapacity to be consistent with the progressive degenerative changes, which were themselves partly a result of the original prolapsed disc.

The Tribunal set aside the decision under review and remitted the matter for redetermination.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The Tribunal rejects the ultimate views of Dr Drewry and prefers that of other experts who gave evidence.Evidence of Dr Muthu Like Mr Kossmann, Dr Muthu accepted that the nature and extent of degenerative lumbar spine in 2016 were the result of multiple contributing factors. Furthermore, his evidence was largely consistent with that of Mr Kossmann in relation to the consequential nature of degeneration in the lumbar spine after a disc prolapse. Although Dr Muthu accepted that the disc prolapse was waiting to happen he also accepted that it did in fact occur during the episode of injury on 21 January 1993. He also accepted that the radiological changes were consistent with the symptoms that the applicant had given evidence about which he experienced over time. Dr Muthu agreed that there was an incapacity for heavy work, which the Tribunal interpreted reasonably to be work of the nature the applicant had performed as a baggage handler. He also accepted that the prolapse that occurred in the workplace in 1993 probably accelerated the course of the degenerative process while acknowledging that there were multiple contributing factors to the degenerative changes in the applicant’s lumbar spine by 2016. Dr Muthu also observed that there was no history of a genetic predisposition to degenerative back disease. Although he stated that the applicant’s work as a baggage handler after the initial injury likely contributed to the continuing course of degeneration, he also agreed that once prolapsed, the disc would never totally heal.CONCLUSION AS TO CAUSATION Given the evaluation of the evidence above, the Tribunal is satisfied that the injury sustained on 21 January 1993 constituted an injury (not being a disease) within the meaning of s 4 of the Act. Such injury, being most likely an L5-S1 disc prolapse, continued to be a relevant and material contributing factor to the applicant’s lumbar spine condition and the variable incapacity and symptoms it produced over time. The Tribunal is of the view that this remained the case after 2016. The respondent argued that either new injuries or a degenerative condition of the lumbar spine had been suffered and that these, in effect, broke the chain of causation between the compensable injury and incapacity suffered since. As this amounts to an argument that the status quo before the determination under review ought not remain, it was for the respondent to persuade the Tribunal accordingly.[33][33] See reasons at paragraph 7(b) above. There was little compelling evidence placed before the Tribunal by the respondent to support its case. There is evidence of variable and even intermittent symptoms and incapacity since the compensable injury of 21 January 1993. This is entirely consistent with the progressive degenerative changes now evident in imaging. However, as explained by the evidence of Mr Kossman and Dr Muthu, those degenerative changes were in part the result of the prolapsed L5-S1 disc which never ‘healed’, remained vulnerable and itself accelerated the course of degeneration in the lumbar spine which would otherwise have occurred.

Decision

Reasons for decision

Dr Muthu agreed that there was an incapacity for heavy work, which the Tribunal interpreted reasonably to be work of the nature the applicant had performed as a baggage handler. He also accepted that the prolapse that occurred in the workplace in 1993 probably accelerated the course of the degenerative process while acknowledging that there were multiple contributing factors to the degenerative changes in the applicant’s lumbar spine by 2016. Dr Muthu also observed that there was no history of a genetic predisposition to degenerative back disease. Although he stated that the applicant’s work as a baggage handler after the initial injury likely contributed to the continuing course of degeneration, he also agreed that once prolapsed, the disc would never totally heal.CONCLUSION AS TO CAUSATION Given the evaluation of the evidence above, the Tribunal is satisfied that the injury sustained on 21 January 1993 constituted an injury (not being a disease) within the meaning of s 4 of the Act. Such injury, being most likely an L5-S1 disc prolapse, continued to be a relevant and material contributing factor to the applicant’s lumbar spine condition and the variable incapacity and symptoms it produced over time. The Tribunal is of the view that this remained the case after 2016. The respondent argued that either new injuries or a degenerative condition of the lumbar spine had been suffered and that these, in effect, broke the chain of causation between the compensable injury and incapacity suffered since. As this amounts to an argument that the status quo before the determination under review ought not remain, it was for the respondent to persuade the Tribunal accordingly.[33][33] See reasons at paragraph 7(b) above. There was little compelling evidence placed before the Tribunal by the respondent to support its case. There is evidence of variable and even intermittent symptoms and incapacity since the compensable injury of 21 January 1993. This is entirely consistent with the progressive degenerative changes now evident in imaging. However, as explained by the evidence of Mr Kossman and Dr Muthu, those degenerative changes were in part the result of the prolapsed L5-S1 disc which never ‘healed’, remained vulnerable and itself accelerated the course of degeneration in the lumbar spine which would otherwise have occurred. Regarding the contentions of the respondent that there were new injuries,[34] the Tribunal is not persuaded that there was any new injury. Rather, it is satisfied that the increased lumbar spine symptoms that were experienced after periods of return to work were more likely a manifestation of the normal and expected prognostic course of the original injury in 1993 as identified in the opinions of Dr Ross, Dr Doig and Dr Hooker.[34] See paragraph 24 above. Broadly speaking there was a large degree of consistency between the evidence of Dr Muthu and Mr Kossmann. The Tribunal considers that their evidence supports the existence of a continuing causal link between the original injury in 1993 and the applicant’s continuing lumbar spine condition and symptoms. The L5-S1 disc prolapse, once it occurred, never fully ‘healed’ and significantly contributed to an acceleration in the course of the normal degenerative process which would have occurred had the prolapse injury not been sustained.

Ratio Decidendi

Legal Principle Established

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