Hewitt and Comcare (Compensation) - [2023] AATA 991

Hewitt and Comcare (Compensation) [2023] AATA 991 (2 May 2023)
Division:GENERAL DIVISION
File Number: 2020/0535
Re:Tara Hewitt
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:R Cameron, Senior Member
Date:2 May 2023
Place:Melbourne

The Tribunal affirms the reviewable decision.
.............................[sgd]...........................................
R Cameron, Senior Member
Catchwords
WORKERS’ COMPENSATION – review of decision denying liability for medical expenses under section 16 of the Safety, Rehabilitation and Compensation Act 1988 – injury to lower back – L4/5 disc replacement – left lumbar pain – full patient history not furnished to some medical experts – multilevel degenerative change of lumbar spine – disc aggravation occurred due to coughing incident in 2005 – long history of musculoskeletal complaints – alternative condition of hypermobility – Tribunal satisfied that L4/5 disc protrusion or aggravation was an injury – Tribunal not satisfied that injuries occurred in the course of applicant’s employment – allegations of failed disc replacement surgery or failed back surgery syndrome not established – chronic pain not contributed to a significant degree by applicant’s employment – decision affirmed
Legislation
Safety, Rehabilitation and Compensation Act1988 (Cth)
Cases
Cash and Australian Postal Corporation [2021] AATA 3323
Comcare v Lofts [2013] FCA 1197
Comcare v PVYW (2013) 250 CLR 246
Dring v Telstra Corporation Ltd (2021) 172 ALD 305
Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468
Portors and Comcare (Compensation) [2017] AATA 2166
Portors v Comcare [2018] FCA 914
Telstra v Hannaford [2006] FCAFC 87
REASONS FOR DECISION
R Cameron, Senior Member
2 May 2023
INTRODUCTION

The applicant seeks a review of a decision made by the respondent on 6 January 2020 (“the reviewable decision”).[1] The reviewable decision was a reconsideration of a determination made on 17 April 2019 which found that the respondent had no present liability to the applicant for medical expenses under s 16 of the Safety, Rehabilitation and Compensation Act1988 (Cth) (“the SRC Act”).[2]
[1] The reviewable decision is document 7 in the Tribunal Book.
[2] The decision of 17 April 2019 is document 5 in the Tribunal book. It should also be noted that in relation to the applicant's claim for a secondary condition of chronic pain syndrome, the respondent determined that because the compensable condition was no longer work related, consideration could not be given to any secondary condition that may have resulted from non-compensable circumstances or from a non-compensable condition.
THE EVIDENCE BEFORE THE TRIBUNAL
There was both oral and documentary evidence before the Tribunal during the hearing of this application.
The following witnesses gave oral evidence:
(a)the applicant;
(b)Dr David Gorman, a Consultant General Physician, Pain Management Physician and Medical Oncologist;
(c)Dr Simon Journeaux, a Consultant Orthopaedic Surgeon; and
(d)Dr Loretta Reiter, a Consultant Rheumatologist.
The documentary evidence consisted of two volumes of a Tribunal book together with the T documents and the supplementary T documents.[3]
[3] The Tribunal book consisted of approximately 2708 pages.
Additionally, both parties lodged and served written submissions after the conclusion of the evidence.
BACKGROUND
The 2018 claim

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 Hewitt and Comcare (Compensation)

Details

AGLC: Hewitt and Comcare (Compensation) [2023] AATA 991
Case: [2023] AATA 991
Decision Date: 2 May 2023

CaseChat Overview and Summary

This matter concerned an application for review of a decision by Comcare denying liability for medical expenses under section 16 of the *Safety, Rehabilitation and Compensation Act 1988* (Cth). The applicant sought compensation for chronic back pain and nerve pain, described as a new condition caused by an existing compensable injury. The applicant's claim stemmed from a severe episode of L4/5 back pain in 2009, which she stated was a consequence of a previous compensable condition. However, the applicant had a long history of musculoskeletal complaints, including a prior back injury sustained approximately 15 years before the 2018 claim, which she had initially failed to fully disclose to some medical experts. The Tribunal considered evidence from the applicant, several medical specialists, and documentary records.

The central legal issues before the Tribunal were whether the applicant's current condition constituted an "injury" as defined by the Act, and if so, whether that injury occurred in the course of her employment. Specifically, the Tribunal had to determine if the L4/5 disc protrusion or aggravation was an injury, and if the applicant's chronic pain was significantly contributed to by her employment. The Tribunal also considered allegations of failed disc replacement surgery or "Failed Back Surgery Syndrome" as potential causes of the applicant's ongoing pain.

The Tribunal found that the applicant did suffer an injury, specifically an L4/5 disc protrusion or aggravation, which occurred due to a coughing incident on 19 July 2005. This conclusion was based on the applicant's own statements in her workers' compensation claim and evidence, as well as a workplace incident report. The Tribunal noted a significant difference in the severity of her pain before and after this incident. However, the Tribunal was not satisfied that this injury, or the subsequent chronic pain, occurred in the course of the applicant's employment. The Tribunal also concluded that the allegations of failed disc replacement surgery or Failed Back Surgery Syndrome were not established by the evidence, preferring the opinions of medical experts who noted a pre-existing degenerative condition of the lumbar spine and found that the patient history provided to some experts was incomplete.

Ultimately, the Tribunal affirmed Comcare's decision, finding no present liability for medical expenses under section 16 of the SRC Act. The Tribunal was not satisfied that the applicant's chronic pain was contributed to a significant degree by her employment, nor were the claims of failed surgery substantiated.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Additionally, both parties lodged and served written submissions after the conclusion of the evidence.BACKGROUNDThe 2018 claim The factual matrix in this matter has a long history. However, the trigger to this application occurred on 26 July 2018 when the applicant lodged with the respondent a document entitled “Notification of a Newly Reported Condition” (“the 2018 notification”).[4] The 2018 notification form contained the endorsement that, “This form is only used where an employee develops a new condition that is caused by the effects of an existing compensable injury or illness.” The new condition identified in the 2018 notification for which a claim was made, was described by the applicant as, “chronic back pain/nerve pain – hyperaldynia [sic]”. When asked to describe how the new injury had been caused by her existing compensable condition the applicant stated, “Began with severe episode of L4/5 back pain in 2009.” In the 2018 notification, the applicant was also asked if she had ever experienced a similar injury, work-related or otherwise, to which she responded, “No”.[4] The 2018 notification is document 4 of the Tribunal book. The applicant, however, acknowledged in her evidence to the Tribunal, in some documents and instructions she gave to various doctors and other health care practitioners, that approximately 15 years earlier she had hurt her back getting shopping out of the back of a car.[5] Indeed, in the original Claim for Workers’ Compensation signed by her on 27 July 2005, in response to question 13 which asked whether she ever had a similar symptom, injury or illness before, work-related or otherwise, the applicant responded, “Lower back, 12 years ago. Occurred when lifting shopping out of car.” Further, in one letter the applicant later wrote to Comcare on 14 July 2008, she recorded that she discussed with her treating general practitioner Dr Lovell the fact that the back injury sustained in 2005 was listed as an aggravation of a previous injury.[6] That previous injury being to her back which was hurt some 15 years before the 2018 claim.[7][5] Transcript pages 45, lines 41-44 and 51, lines 32-36.[6] The letter to Comcare is document 18 of the Tribunal book.[7] This was also canvassed in cross-examination at Transcript pages 45-46 and 51. Given that the 2018 notification was said by the applicant to have arisen when she had developed a new condition caused by the effects of an existing compensable injury or illness, it is appropriate to briefly outline the history of the earlier claim. It did assume some significance during the hearing of the current application before the Tribunal.The 2005 incident In July 2005 the applicant was employed by the National Oceans Office (now absorbed into the Marine Division of the Department of the Environment and Heritage). The applicant gave evidence at the hearing of the application that she initially experienced pain in her back, including sciatic pain when she attended an induction conducted by the People Management Branch of the Department of Environment and Heritage as the National Oceans Office was being merged into that department. There was some variation in the dates that she said this occurred. In an attachment to the Workplace Incident Report form of 26 July 2005, the applicant said the induction occurred on 8 or 9 July 2005.[8] In her oral evidence to the Tribunal, she said her pain started in or around 8 and 9 June 2005.[9] The induction session she says was conducted over one afternoon and into the following morning.[8] This date is referred to in the attachment to document number 1 of the Tribunal book.[9] Transcript page 6, lines 18-19.

Evidence

Evidence Before The Court

The applicant seeks a review of a decision made by the respondent on 6 January 2020 (“the reviewable decision”).[1] The reviewable decision was a reconsideration of a determination made on 17 April 2019 which found that the respondent had no present liability to the applicant for medical expenses under s 16 of the Safety, Rehabilitation and Compensation Act1988 (Cth) (“the SRC Act”).[2][1] The reviewable decision is document 7 in the Tribunal Book.[2] The decision of 17 April 2019 is document 5 in the Tribunal book. It should also be noted that in relation to the applicant's claim for a secondary condition of chronic pain syndrome, the respondent determined that because the compensable condition was no longer work related, consideration could not be given to any secondary condition that may have resulted from non-compensable circumstances or from a non-compensable condition.THE EVIDENCE BEFORE THE TRIBUNAL There was both oral and documentary evidence before the Tribunal during the hearing of this application. The following witnesses gave oral evidence:(a)the applicant;(b)Dr David Gorman, a Consultant General Physician, Pain Management Physician and Medical Oncologist;(c)Dr Simon Journeaux, a Consultant Orthopaedic Surgeon; and(d)Dr Loretta Reiter, a Consultant Rheumatologist. The documentary evidence consisted of two volumes of a Tribunal book together with the T documents and the supplementary T documents.[3][3] The Tribunal book consisted of approximately 2708 pages. Additionally, both parties lodged and served written submissions after the conclusion of the evidence.BACKGROUNDThe 2018 claim The factual matrix in this matter has a long history. However, the trigger to this application occurred on 26 July 2018 when the applicant lodged with the respondent a document entitled “Notification of a Newly Reported Condition” (“the 2018 notification”).[4] The 2018 notification form contained the endorsement that, “This form is only used where an employee develops a new condition that is caused by the effects of an existing compensable injury or illness.” The new condition identified in the 2018 notification for which a claim was made, was described by the applicant as, “chronic back pain/nerve pain – hyperaldynia [sic]”. When asked to describe how the new injury had been caused by her existing compensable condition the applicant stated, “Began with severe episode of L4/5 back pain in 2009.” In the 2018 notification, the applicant was also asked if she had ever experienced a similar injury, work-related or otherwise, to which she responded, “No”.[4] The 2018 notification is document 4 of the Tribunal book. The applicant, however, acknowledged in her evidence to the Tribunal, in some documents and instructions she gave to various doctors and other health care practitioners, that approximately 15 years earlier she had hurt her back getting shopping out of the back of a car.[5] Indeed, in the original Claim for Workers’ Compensation signed by her on 27 July 2005, in response to question 13 which asked whether she ever had a similar symptom, injury or illness before, work-related or otherwise, the applicant responded, “Lower back, 12 years ago. Occurred when lifting shopping out of car.” Further, in one letter the applicant later wrote to Comcare on 14 July 2008, she recorded that she discussed with her treating general practitioner Dr Lovell the fact that the back injury sustained in 2005 was listed as an aggravation of a previous injury.[6] That previous injury being to her back which was hurt some 15 years before the 2018 claim.[7][5] Transcript pages 45, lines 41-44 and 51, lines 32-36.[6] The letter to Comcare is document 18 of the Tribunal book.[7] This was also canvassed in cross-examination at Transcript pages 45-46 and 51.

Decision

Reasons for decision

In the further report from Dr Ghazanfari of 11 November 2019 to Dr Gray, Dr Ghazanfari identifies several problems including possible sacroiliitis, and amongst others, gluteal tendinosis and low back pain in background of L5 discectomy.[112] Further, in the report, he observed that the applicant’s main problem at that time was gluteal tendinosis and her lower back pain which he observed was around L2/3 in the context of her complaining of intermittent severe pain, cramps and spasm.[112] The report from Dr Ghazanfari to Dr Gray of 11 November 2019 is document 114 of the Tribunal book.Conclusions concerning allegations of failed disc replacement surgery The Tribunal concludes that the allegations of failed disc replacement surgery, or as Dr Mitchell described it, “Failed Back Surgery Syndrome” have not been established. There are several reasons why the Tribunal reaches this conclusion. There is firstly the preponderance of medical evidence before the Tribunal. Of the medical witnesses who gave evidence, it was only Dr Gorman who gave evidence that the disc replacement surgery might be a generator of the pain experienced by the applicant. Even Dr Gorman in his evidence, whilst maintaining that the pain experienced by the applicant was contributed to as a result of the disc replacement surgery, did not go so far as to say, either in his report or from the witness box that such surgery had failed, as contended for by the applicant or Dr Mitchell.[113] Indeed, Dr Mitchell’s conclusions, and the contents his report, as brief as it was, were not put to Dr Gorman.[113] There was of course the brief reference in the report of Dr Wong to Dr Gray of 27 February 2020 which referred to the failed back surgery syndrome. Additionally, to his credit, Dr Gorman readily conceded in the witness box that it could not be stated for certain what was causing the applicant’s pain. It should be recalled that he, in his evidence on several occasions, stated that in reaching a conclusion that it involved a level of speculation, or it was speculative. Another reason why the Tribunal prefers the evidence of the other medical witnesses who gave evidence is because the patient history furnished to Dr Gorman, and contained in his report, did not include any reference to the 2009 incident. Given that in particular, the pain experienced by the applicant was in a different location as a result of that incident, it is a matter that the Tribunal considers highly relevant to any medical expert conducting an assessment of the applicant and expressing an opinion as to the possible causes of the pain she experiences. It should also be repeated, given the history outlined in this section of the several medical reports that have been provided from an array of specialists, that apart from Dr Gorman, Dr Mitchell and Dr Wong, none of those other medical practitioners expressed the opinion that the disc replacement surgery had failed. The Tribunal had the benefit of the evidence of Dr Journeaux and Dr Reiter from the witness box and preferred their opinions to those of Dr Gorman in particular because of the fact, as noted above, that Dr Gorman was not given a complete patient history and that he readily conceded an opinion reached was to some degree speculative. Both Dr Journeaux and Dr Reiter largely expressed similar opinions that the applicant had a multilevel degenerative change of the lumbar spine which is a slowly progressive condition. That there was a degenerative condition of the applicant’s spine, as contended by Dr Journeaux and Dr Reiter, is also corroborated by the contents of the letter of 29 July 2005 from Ms Hannan to Dr Lovell. That letter contained a history of previous lower back problems experienced by the applicant, which the applicant admitted in the witness box.

Ratio Decidendi

Legal Principle Established

In cross-examination of the other doctors who gave evidence, the applicant suggested that cluneal nerve irritation was a possible cause of the pain she experienced. For various reasons those doctors rejected such a suggestion. The Tribunal has explained why it prefers the evidence of Dr Journeaux and Dr Reiter. Similarly, for those reasons it does not accept this contention.CONSIDERATION The Tribunal considers that on the preponderance of the evidence before it the L4/L5 disc protrusion, or as it was referred to from time to time during the hearing of the application, the “disc aggravation” suffered by the applicant occurred because of the bout of coughing she experienced on 19 July 2005. There are several reasons why the Tribunal reaches this conclusion. There are the contents of the Claim for Workers’ Compensation in which the applicant herself, when asked what action, exposure or event happened to cause her injury or illness responded with the words, “I coughed”. The applicant when in the witness box gave evidence to a similar effect. She stated that she coughed and her back seized up completely. It appears the coughing without any doubt caused her back to seize up as she said. Prior to that occasion, whilst she may well have experienced some back discomfort it does not appear that the disc protrusion or the disc aggravation, however it may be described, had manifested itself in the way it did after the 19 July 2005 coughing episode. A similar consistent version of events with respect to the cough causing her lower back to seize upon 19 July 2005 was also attached to the Workplace Incident Report Form that was in evidence before the Tribunal.[67][67] The Workplace Incident Report Form is document 1 of the Tribunal book. In her own evidence during cross-examination, the applicant readily conceded that after her back really seized up on 19 July 2005 there was a major difference to what had been happening with her back previously. She even went so far as to say it was, “the increased massive spasm, I suppose you would call it, where you’re 10 out of 10 on the pain scale, versus 4 or 5 on the pain scale, which I probably was up until that point.”[68][68] Transcript page 50, lines 26-28. The applicant also relied upon the evidence of Dr Gorman both contained in his report and from the witness box, a summary of which has been outlined above. He readily conceded that the pain generator that the applicant experienced could not with certainty be diagnosed. However, he consistently maintained that wherever the pain generator or source of the pain was, it was aggravated by the change in mechanics and the change in physiology of the applicant’s lumbar spine occasioned by the disc replacement surgery. To his credit he readily conceded that not all of the effects of the surgery would cause the incident pain that the applicant experienced. Dr Gorman also conceded quite readily on several occasions that an assessment of the causes of pain experienced by the applicant was speculative. He also explained that by reason of the very nature of the surgery where nerves were cut to gain access to the discs to be replaced, there were many reasons why the pain might have changed following such surgery. Ultimately, therefore he concluded that the applicant’s symptoms were post-disc replacement.