Hewett and Comcare (Compensation) - [2018] AATA 302

Hewett and Comcare (Compensation) [2018] AATA 302 (4 January 2018)
Division:General Division
File Number(s): 2015/4950, 2015/4953, 2015/0285, 2016/0288,
2017/2841

Re:Ms Montira Hewett
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal: Ms Anna Burke, Member
Date:4 January 2018
Place:Melbourne

The decisions under review are affirmed
[sgd]........................................................................
Ms Anna Burke, Member
WORKERS’ COMPENSATION – aggravation of degenerative changes in cervical spine – aggravation of major depressive disorder - whether ongoing entitlement to medical expenses – whether permanent impairment arose as a result of surgery - conflicting medical evidence - decisions affirmed
Legislation
Safety, Rehabilitation and Compensation Act 1998
Cases
Kennedy Cleaning v Petkoska [2000] HCA 45; 200 CLR 286; 174 ALR 626;74 ALJR 1298
Ilsley v Wattyl (1997) 75 FCR 1, 144 ALR 510
REASONS FOR DECISION
Ms Anna Burke, Member
4 January 2018

Ms Hewett commenced employment with The Australian Public Service in or about 1986, first in the Department of Defence and then in the Department of Social Security and worked there for 25 years until she was retired on grounds of invalidity in April 2011. On 20 February 2004 Ms Hewett submitted an incident report noting that on 10 February 2004 at 11:35am:
“I looked up to see my computer being pushed towards me by another customer whose identity is not known. With the shock of this incident, I pushed myself backward awkwardly as I felt as if I was going to fall off the reception stool. No injury was sustained at this incident (physically), however, a Stress Contact Officer removed me from my workstation and took me to the tearoom. I was extremely and badly shaken and it has taken me some hours to regain some of my composure. I now have a very bad headache and unfortunately my heart is still racing due to the stress of the situation”.
On 16 February 2004 Ms Hewett submitted a claim for compensation under the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act). In the claim she noted the diagnosed condition of pulled neck muscles resulting from sudden jerk of the neck caused by customer hitting the computer without warning.
Ms Hewett has had a series of Comcare claims in respect of injuries:
·    July 1987 accepted claim for strained lower back, physiotherapy treatment ceased in 1990 and claim closed.
·    February 1991 accepted claim for work-related stress, treatment ceased in November 1993 and claim closed.
·    May 1994 accepted re-occurrence of anxiety symptoms following a stressful incident, psychological treatment commenced in June 1994 and ceased in June 1995 and claim closed.
·    May 1999 accepted claim for lateral epicondylitis (right) following injury treatment ceased in November 1999 and claim closed.
·    April 2002 claim for adjustment reaction as a result of workplace injury, rejected on the basis that no unrealistic expectations or demands were placed on Ms Hewett; the matter was later settled by agreement for a closed period accepted from April 2002 until June 2002.
On 5 March 2004, Comcare accepted…

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 Hewett and Comcare (Compensation)

Details

AGLC: Hewett and Comcare (Compensation) [2018] AATA 302
Case: [2018] AATA 302
Decision Date: 4 January 2018

CaseChat Overview and Summary

This matter concerned an appeal by Ms Hewett against decisions made by Comcare regarding her entitlement to compensation. The dispute centred on whether Ms Hewett's ongoing psychological and physical conditions, specifically a cervical spine complaint and associated pain, were attributable to her employment and whether she continued to suffer from the effects of an accepted work injury. The case was heard by Ms Anna Burke, a Member of the Tribunal.

The legal issues before the Tribunal were twofold. Firstly, it had to determine the causal link between Ms Hewett's employment and her cervical spine condition, including whether a work incident in 2004 aggravated pre-existing degenerative changes, leading to a disc prolapse and subsequent surgery. Secondly, the Tribunal was required to assess whether Ms Hewett's psychological condition constituted an adjustment disorder or an underlying disorder, and whether her current symptoms and need for treatment were a continuing consequence of her accepted work injury, thereby entitling her to ongoing compensation for permanent impairment and medical expenses.

The Tribunal considered medical evidence from orthopaedic surgeon Mr Iain Kelman and neurosurgeon Mr David Brownbill, as well as the advice of Associate Professor Mendelson regarding Ms Hewett's psychological state. While Mr Brownbill opined that the 2004 work incident was a major contributor to ongoing neck pain and a later disc prolapse, Mr Kelman's earlier report suggested that Ms Hewett's employment issues contributed only to her stress and that her cervical spine condition was resolved. Associate Professor Mendelson diagnosed cyclothymia, indicating an underlying psychological predisposition, and questioned the diagnosis of adjustment disorder given Ms Hewett's history of psychological issues predating the 2004 incident. The Tribunal also noted that Comcare's clinical framework for assessing reasonable medical treatment, which prioritises empowering the injured person towards independence, had not been followed.

Ultimately, the Tribunal affirmed Comcare's decisions. It found that Ms Hewett was no longer entitled to compensation under section 16 of the SRC Act as she no longer suffered from the effects of the accepted injury. Consequently, her claim for payment for permanent impairment was dismissed. The Tribunal affirmed all 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

Under cross-examination Ms Hewett was asked about her activities outside of work. She said she had been advised to try and keep up activities to help with both her psychological and physical state so she joined a gym and was playing tennis. She believed she had given up tennis in 2008, as she was no longer motivated to play. Counsel for the respondent referred to medical records obtained under summons which indicated that she was playing tennis until 2012; that she had also been bowling with her husband; and also assisting in her husband’s nursery business. Ms Hewett said she had originally played tennis on Wednesday and then was playing on Saturday, but she believed she was only filling in occasionally. She had discontinued going to the gym, and that she believes she should be assisting her husband in the business, but this was not physical or demanding work she was undertaking.Medical EvidenceMr Iain Kelman, Consultant Orthopaedic Surgeon Mr Kelman did not appear as a witness at the hearing but his medicolegal report of 20 June 2006 was referred to by both the applicant and the respondent during proceedings. In the report, Mr Kelman opined Ms Hewett suffers the following:(i)Post-traumatic stress as a result of aggressive client behaviour. I am not qualified to make further observations on this count.(ii)I have examined and observed her carefully with respect to problems regarding her cervical spine and in my opinion there are very few symptoms and very little pain in the cervical spine at the present time and I considered the movement of her cervical spine was near to normal although there was some restriction movement upon formal examination.…There was no evidence of a congenital or underlying condition.I could not determine any family issues and there were no other health issues which I could determine.Apart from those areas already described there was no other aspect of Ms Hewett’s employment which is affecting the current condition.I was unable to determine any factors unrelated to work.I do not consider there is significant degradation of the cervical spine as a result of the ageing process.…In my opinion Ms Hewett’s employment issues contribute only to her stress problem and her employment does not continue to affect her cervical spine. I consider that condition is now resolved.…In my opinion the condition which contributed to Ms Hewett’s neck complaint is now ceased, however the stress situation continues.…In my opinion Ms Hewett does not require any further treatment for her neck in the form of physiotherapy. She is receiving massage therapy which she is funding herself and appears to gain benefit from this although it may be of a general nature.…In my opinion the prognosis for Ms Hewett’s neck complaint with respect to employment is good. There are other factors which are involved however and these need to be assessed by appropriate professionals.Mr David Brownbill, Consultant Neurosurgeon In a medicolegal report dated 30 May 2017 Mr Brownbill opined:With pain commencing on the neck for the first time following the incident of 2004 and the continuation of pain thereafter I consider that on probability the work incident was a major contribution to the ongoing pain and later disc prolapse.…This lady had ongoing neck pain from the time of the incident of the 10th February 2004 which is regarded as representing aggravation of the pre-existing degenerative changes. I consider on the basis of that aggravation of degenerative change she sustained this prolapse at C3 –4 which required surgery performed on 24 February 2014

Decision

Reasons for decision

The Tribunal observed that Comcare’s clinical framework for assessing reasonable medical treatment had not been followed. The framework establishes key measures of treatment effectiveness which are the ability of the injured person to manage their condition as independently as possible and to participate in activities at home, in the community and at work. Independence does not mean being symptom-free, but rather living a functional and productive life while self-managing symptoms if they arise. Failure to empower an injured person to become independent may result in dependency on treatment, which reinforces illness behaviour and can lead to persistent pain or long-term disability.CONCLUSION Based on the evidence before it, the Tribunal affirms all decisions under review. In relation to the determination of 6 January 2016, the Tribunal affirms the decision that Ms Hewett was no longer entitled to compensation pursuant to s 16 of the SRC Act as she no longer suffered from the effects of the accepted injury and consequently is not entitled to payment for permanent impairment.The decisions under review are affirmed.

Ratio Decidendi

Legal Principle Established

Associate Professor Mendelson advised the Tribunal that cyclothymia was the most appropriate diagnosis of Ms Hewett’s condition and that he relied upon the Australian preferred version of the world health classification of mental and behavioural disorders and not the American DSM. He identified that Ms Hewett had an underlying disorder and therefore her response to the situation in 2004 was more defined than an individual who is not predisposed to this psychological condition. He did not agree with the finding of adjustment disorder, as Ms Hewett had presentations of psychological issues as far back as 1999, and that her reaction indicated an underlying basis for her psychological issues. Further, he disagreed the treatment would not necessarily make the situation worse, and queried the very high doses of medication that she was currently receiving. He said this is indicative of something else present other than an adjustment disorder with mixed anxiety and depression.CONSIDERATION Counsel for Ms Hewett argued that Ms Hewett’s condition could not be faked as muscle spasm presented on palpitation and this was consistent with the observation of Ms Howe who had been treating Ms Hewett for an extensive period of time. He argued the incident in 2004 had resulted in the neck injury and accepted that Ms Hewett may have been suffering from underlying degenerative changes, but the injury was the catalyst for her prolapsed disc and subsequent pain. Indeed, counsel argued Ms Hewett’s condition became chronic which led to the subsequent need for the spinal fusion which has led to an agreed 28% whole body impairment. Therefore, Comcare has a continuing liability for medical expenses and payment for permanent impairment. Counsel for Ms Hewett contended that as Mr Brownbill had assessed Ms Hewett as having sustained an aggravation of a pre-existing asymptomatic cervical spine degenerative changes with likely C3-4 intervertebral disc degeneration, that surgery was required as a result, and as there had been no previous neck pain prior to the onset of pain during the incident at 2004 that this was the cause of the impairment which he assessed at 28%. Counsel submitted that this should be accepted by the Tribunal. He contended that whilst Ms Hewett had responded to surgery, she will continue to need physical therapy and therefore it was appropriate for Comcare to continue to meet reasonable medical expenses. Counsel for Ms Hewett further contended that one cannot predict when and where underlying degeneration may result in an abnormality of the spine, but that injury will most certainly trigger and add to the weight of degeneration. Further, whilst surgery ultimately dealt with the issue there was a significant chain of events which led to Ms Hewett’s pain which had no other causal factor or intervening causation. In relation to Ms Hewett playing tennis, Counsel submitted that whilst tennis had been discussed at length it had not been demonstrated that Ms Hewett’s playing tennis was vigorous or strenuous enough to cause the injury which ultimately resulted in surgery, but the Tribunal must accept that the causation of her pain was due to her work.