Howard and Comcare (Compensation) - [2017] AATA 2381

Howard and Comcare (Compensation) [2017] AATA 2381 (28 November 2017)
Division:GENERAL DIVISION
File number: 2015/4998
Kerry Howard
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Dr James Popple, Senior Member
Date:28 November 2017
Place:Canberra

Comcare’s decision on 17 June 2015 is affirmed.
........................................................................
James Popple, Senior Member
CATCHWORDS
COMPENSATION — Commonwealth employees — Applicant suffered injuries in motor vehicle accident while travelling to work — Comcare accepted liability for injuries — Applicant suffering pain since accident — 11 years later, Comcare denied continuing liability for injuries — effects of injuries resolved within a few months of accident — Applicant no longer suffers effects of injuries — medical treatment no longer obtained “in relation to” Applicant’s injuries — incapacity for work no longer “as a result of” Applicant’s injuries — Comcare no longer liable to pay compensation for medical expenses or incapacity — decision under review affirmed.
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988, ss 4(1), 5A, 6, 8, 9, 14, 16, 19
Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007, Schedule 1, items 6, 11, 12, 42, 44

REASONS FOR DECISION
Dr James Popple, Senior Member
28 November 2017
Summary

The applicant was injured in a motor vehicle accident on her way to work in 2006. Comcare accepted liability for her injuries under the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act), and agreed to pay compensation for medical expenses and incapacity under s 16 and s 19 of the SRC Act. In 2015, Comcare decided that the applicant no longer suffered from the effects of her injuries, and determined that she was no longer entitled to compensation.
The applicant no longer suffers from the effects of the injuries she suffered in 2006. So, Comcare is not liable to pay her compensation under s 16 or s 19 of the SRC Act.
Background
Ms Kerry Howard was employed by the Department of Health and Ageing. On 30 March 2006, she was riding her motor scooter to work. As she turned right, the scooter’s back wheel skidded out from under the scooter, and Ms Howard landed on her right side. I will call this the 2006 accident. In April 2006, she made a claim for workers’ compensation. She identified her “[n]eck, right shoulder, right forearm, right hip, right calf, left hand (thumb)” and “right thumb” as having been injured in the 2006 accident.
On 8 May 2006, Comcare accepted liability, under s 14 of the SRC Act, for Ms Howard’s injuries, which it described as a neck sprain, and contusions to her “upper arm (left)”, “finger (left)”, and “hip and thigh (right)”. Comcare decided that it was liable to pay Ms Howard compensation for medical expenses (under s 16) and incapacity (under s 19). On 30 May 2006, Comcare advised Ms Howard that it had incorrectly described her accepted condition, which should have included contusions to her “upper arm (right)”, not her “upper arm (left)”.
Ms Howard worked for the Department of Health and…

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 Howard and Comcare (Compensation)

Details

AGLC: Howard and Comcare (Compensation) [2017] AATA 2381
Case: [2017] AATA 2381
Decision Date: 28 November 2017

CaseChat Overview and Summary

This matter concerned an appeal by Ms Kerry Howard against a decision by Comcare to affirm its determination that she was no longer entitled to compensation for medical expenses or incapacity for work. Comcare had initially accepted liability for injuries Ms Howard sustained in a motor vehicle accident on 30 March 2006 while travelling to work. The dispute before the Administrative Appeals Tribunal, presided over by Senior Member Dr James Popple, was whether Ms Howard continued to suffer from the effects of these injuries to the extent that Comcare remained liable under sections 16 and 19 of the *Safety, Rehabilitation and Compensation Act 1988* (Cth).

The legal issues before the Tribunal were whether Ms Howard's current medical treatment was obtained "in relation to" her accepted injuries, and whether any current incapacity for work was "as a result of" those injuries. These questions were contingent on whether Ms Howard continued to suffer from the effects of the injuries sustained in the 2006 accident. The Tribunal noted that while the definition of "injury" and section 6 of the *Safety, Rehabilitation and Compensation Act 1988* had been amended in 2007, the provisions as they stood at the time of the 2006 accident continued to apply to Ms Howard's injuries.

The Tribunal considered extensive medical evidence from various practitioners, including Ms Howard's general practitioner, an orthopaedic surgeon, a neurologist, a pain medicine specialist, a rheumatologist, an occupational physician, and a general physician. The core of Comcare's decision was that Ms Howard no longer suffered from the effects of the 2006 injuries. The Tribunal's reasoning focused on this central factual determination. If Ms Howard no longer suffered from the effects of the injuries, then any medical treatment would not be "in relation to" those injuries, and any incapacity for work would not be "as a result of" them, thereby negating Comcare's liability under sections 16 and 19 respectively.

The Tribunal affirmed Comcare's decision. It found that Ms Howard no longer suffered from the effects of the injuries sustained in the 2006 accident. Consequently, Comcare was no longer liable to pay compensation for medical expenses under section 16 or for incapacity for work under section 19 of the *Safety, Rehabilitation and Compensation Act 1988*.

Orders

Orders of the court

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Background

Background to the litigation

The applicant no longer suffers from the effects of the injuries she suffered in 2006. So, Comcare is not liable to pay her compensation under s 16 or s 19 of the SRC Act.Background Ms Kerry Howard was employed by the Department of Health and Ageing. On 30 March 2006, she was riding her motor scooter to work. As she turned right, the scooter’s back wheel skidded out from under the scooter, and Ms Howard landed on her right side. I will call this the 2006 accident. In April 2006, she made a claim for workers’ compensation. She identified her “[n]eck, right shoulder, right forearm, right hip, right calf, left hand (thumb)” and “right thumb” as having been injured in the 2006 accident. On 8 May 2006, Comcare accepted liability, under s 14 of the SRC Act, for Ms Howard’s injuries, which it described as a neck sprain, and contusions to her “upper arm (left)”, “finger (left)”, and “hip and thigh (right)”. Comcare decided that it was liable to pay Ms Howard compensation for medical expenses (under s 16) and incapacity (under s 19). On 30 May 2006, Comcare advised Ms Howard that it had incorrectly described her accepted condition, which should have included contusions to her “upper arm (right)”, not her “upper arm (left)”. Ms Howard worked for the Department of Health and Ageing until April 2012, when her position was made redundant. She is currently self-employed. On 19 February 2015, Comcare advised Ms Howard that it proposed to determine that compensation was no longer payable. On 23 March 2015, Comcare decided that Ms Howard no longer suffered from the effects of the injuries she suffered in the 2006 accident (which I will call the 2006 injuries), and determined that she had no present entitlement to compensation for medical expenses under s 16 or for incapacity payments under s 19. On 29 April 2015, Ms Howard requested a reconsideration of that determination. On 17 June 2015, Comcare affirmed its determination. On 24 September 2015, Ms Howard applied to the Tribunal, under s 64 of the SRC Act, for review of that decision.Decision under review The decision under review is Comcare’s decision on 17 June 2015, affirming its determination that (from 23 March 2015) Ms Howard had no entitlement to compensation under s 16 or s 19 of the SRC Act.Issue Under s 14 of the SRC Act, Comcare is liable to pay compensation in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment. Section 16 provides for Comcare to pay compensation in respect of medical treatment obtained “in relation to” an injury. Section 19 provides for Comcare to pay compensation to an employee who is incapacitated for work “as a result of” an injury. At the time of the 2006 accident, s 4(1) of the SRC Act provided that an “injury” included “a physical … injury arising out of, or in the course of, the employee’s employment”, and s 6(1)(b)(ii) provided that an injury could be treated as having arisen out of, or in the course of, an employee’s employment if it was sustained while the employee was “travelling between his or her place of residence and place of work”. The definition of “injury” and s 6 were amended on 13 April 2007, so that an injury sustained while travelling between home and work is no longer an injury arising out of, or in the course of, employment for the purposes of s 14.[1] However, the definition of “injury”, and s 6 of the SRC Act, as they were at the time of the 2006 accident, continue to apply to the 2006 injuries.[2][1] The definition of injury in s 4(1) was replaced with “injury has the meaning given by section 5A”: Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007 (the amending Act), Schedule 1, item 6. The new definition in s 5A (inserted by item 11) is relevantly identical to the definition previously in s 4(1). But s 6(1)(b) was replaced by paragraphs that do not refer to the employee travelling between their place of residence and place of work: item 12.[2] Schedule 1 to the amending Act provides that “The definition of injury in the [SRC Act], as amended by this Schedule”—see note 1 above—“applies in relation to a[n] … injury … that an employee sustains on or after the day after this Act receives the Royal Assent”: item 42. And, “Section 6 of the [SRC Act], as amended by this Schedule, applies in relation to an injury sustained on or after the day after this Act receives the Royal Assent”: item 44. The amending Act received Royal Assent on 12 April 2007—after the 2006 accident.

Evidence

Evidence Before The Court

Comcare accepts that Ms Howard suffered injuries, for the purposes of s 14, from the 2006 accident. The issue in this review is whether Comcare is still liable to pay compensation to Ms Howard under s 16 or s 19. That depends on whether she continues to suffer the effects of the 2006 injuries. If she does, then:·Comcare is liable to pay compensation in respect of her reasonable medical expenses; and·(if she is incapacitated for work) Comcare is liable to pay compensation for that incapacity, the amount of which depends on:othe amount that she is able to earn in suitable employment;othe amount that she earns from her self-employment; andoher normal weekly earnings before the 2006 injuries.[3]If Ms Howard does not continue to suffer the effects of the 2006 injuries, then:·any medical treatment she obtains is not obtained “in relation to” her injuries, so Comcare is not liable under s 16; and·she is not incapacitated for work “as a result of” her injuries, so Comcare is not liable under s 19.[3] See SRC Act, ss 8, 9 and 19.Medical evidence There is much evidence before me about Ms Howard’s current condition, and its relationship to the 2006 injuries. That includes evidence from the following people, who did not give evidence at the hearing:·Dr Sabina Obermeder, Ms Howard’s general practitioner (GP). She saw Ms Howard on many occasions, issued a number of medical certificates, and wrote reports on 20 April and 25 May 2009, 1 March 2010, and 31 March and 1 May 2015.·Dr William Coyle, an orthopaedic surgeon. He saw her on 4 February 2008, and wrote a report that same day.·Dr Colin Andrews, a consultant neurologist. He saw her on 7 January 2014, and wrote a report the next day.·Professor Paul Glare, the Chair of Pain Medicine at the University of Sydney. He saw her on 25 January and 1 March 2017, and wrote reports on both dates.In addition, I heard evidence from the following medical witnesses:·Dr Phillip Vecchio, a rheumatologist. He saw Ms Howard on 15 December 2014, and wrote a report on 23 December 2014.·Dr Leon Le Leu, an occupational physician. He saw her on 16 February 2016, and wrote reports on 22 February 2016 and 2 April 2017.·Dr Matthew Paul, a consultant occupational physician. He saw her on 14 June 2016, and wrote reports on 24 June and 5 August 2016.·Dr David Gorman, a consultant general physician, pain management specialist and medical oncologist. He saw her on 15 August 2017, and wrote a report on 31 August 2017. Ms Howard suffered a whiplash injury in a motor vehicle accident on or about 8 March 2002. I will call this the 2002 accident. On 14 December 2004, a consultant neurologist[4] reported that her symptoms were improving and that “serious pathology has been excluded”.[4] Dr David McColl. Ms Howard also gave evidence at the hearing. She says that she had fully recovered from the 2002 accident before she had the 2006 accident. She says that she initially required about one week off work after the 2006 accident, after which she was on a graduated return to work. By 24 June 2006 (about 12 weeks after the 2006 accident) she had returned to full-time work, though she says that she could only do so because she was taking hourly 15-minute breaks from computer-based work; taking anti-inflammatories and analgesics; and having osteopathic, massage and acupuncture treatment.

Decision

Reasons for decision

On 24 September 2015, Ms Howard applied to the Tribunal, under s 64 of the SRC Act, for review of that decision.Decision under review The decision under review is Comcare’s decision on 17 June 2015, affirming its determination that (from 23 March 2015) Ms Howard had no entitlement to compensation under s 16 or s 19 of the SRC Act.Issue Under s 14 of the SRC Act, Comcare is liable to pay compensation in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment. Section 16 provides for Comcare to pay compensation in respect of medical treatment obtained “in relation to” an injury. Section 19 provides for Comcare to pay compensation to an employee who is incapacitated for work “as a result of” an injury. At the time of the 2006 accident, s 4(1) of the SRC Act provided that an “injury” included “a physical … injury arising out of, or in the course of, the employee’s employment”, and s 6(1)(b)(ii) provided that an injury could be treated as having arisen out of, or in the course of, an employee’s employment if it was sustained while the employee was “travelling between his or her place of residence and place of work”. The definition of “injury” and s 6 were amended on 13 April 2007, so that an injury sustained while travelling between home and work is no longer an injury arising out of, or in the course of, employment for the purposes of s 14.[1] However, the definition of “injury”, and s 6 of the SRC Act, as they were at the time of the 2006 accident, continue to apply to the 2006 injuries.[2][1] The definition of injury in s 4(1) was replaced with “injury has the meaning given by section 5A”: Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007 (the amending Act), Schedule 1, item 6. The new definition in s 5A (inserted by item 11) is relevantly identical to the definition previously in s 4(1). But s 6(1)(b) was replaced by paragraphs that do not refer to the employee travelling between their place of residence and place of work: item 12.[2] Schedule 1 to the amending Act provides that “The definition of injury in the [SRC Act], as amended by this Schedule”—see note 1 above—“applies in relation to a[n] … injury … that an employee sustains on or after the day after this Act receives the Royal Assent”: item 42. And, “Section 6 of the [SRC Act], as amended by this Schedule, applies in relation to an injury sustained on or after the day after this Act receives the Royal Assent”: item 44. The amending Act received Royal Assent on 12 April 2007—after the 2006 accident. Comcare accepts that Ms Howard suffered injuries, for the purposes of s 14, from the 2006 accident. The issue in this review is whether Comcare is still liable to pay compensation to Ms Howard under s 16 or s 19. That depends on whether she continues to suffer the effects of the 2006 injuries. If she does, then:·Comcare is liable to pay compensation in respect of her reasonable medical expenses; and·(if she is incapacitated for work) Comcare is liable to pay compensation for that incapacity, the amount of which depends on:othe amount that she is able to earn in suitable employment;othe amount that she earns from her self-employment; andoher normal weekly earnings before the 2006 injuries.[3]If Ms Howard does not continue to suffer the effects of the 2006 injuries, then:·any medical treatment she obtains is not obtained “in relation to” her injuries, so Comcare is not liable under s 16; and·she is not incapacitated for work “as a result of” her injuries, so Comcare is not liable under s 19.[3] See SRC Act, ss 8, 9 and 19.Medical evidence

Ratio Decidendi

Legal Principle Established

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