Ivill and Comcare (Compensation) - [2020] AATA 36

Ivill and Comcare (Compensation) [2020] AATA 36 (16 January 2020)
Division:GENERAL DIVISION
File Number(s): 2017/2620
2017/2645
2017/6376
2017/7229
2018/1160
2018/1161

Re:Bronia Ivill
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Senior Member D O'Donovan
Date:16 January 2020
Place:Canberra

The Administrative Appeals Tribunal (Tribunal) affirms the reviewable decision in Tribunal Application 2017/6376 refusing the applicant compensation for permanent impairment in respect of her left knee. The applicant has no entitlement as to costs.
The Tribunal affirms the reviewable decision in Tribunal Application 2017/7229 refusing the applicant compensation for permanent impairment in respect of any impairment arising from the 2001 Injury including any psychological impairment. The applicant has no entitlement as to costs.
The Tribunal affirms the reviewable decision in Tribunal Application 2018/1160 and 2018/1161 in so far as those decisions determine that Comcare is not liable to pay compensation under s 14 of the Act in respect of Chronic Pain Syndrome. The Tribunal otherwise sets aside the reviewable decisions and, in substitution, determines that Comcare is liable to pay compensation under s 14 of the Act in respect of the applicant’s adjustment disorder with depressed mood. Comcare is to pay the applicant’s reasonable party/party costs as agreed or taxed.
The Tribunal sets aside the reviewable decision in Tribunal Application 2017/2620 and remits the matter to Comcare for reconsideration on the basis that Comcare is liable to pay compensation under ss 16 and 20 of the Act in respect of any incapacity or need for medical treatment which arises from the applicant’s injuries to her hip, thigh and lower back suffered in the incident of April 2001 (the effects of which are ongoing). Comcare is to pay the applicant’s reasonable party/party costs as agreed or taxed.
The Tribunal sets aside the reviewable decision in Tribunal Application 2017/2645 and remits the matter to Comcare for reconsideration on the basis that Comcare is liable to pay compensation under ss 16 and 20 in respect of any incapacity or need for medical treatment which arises the applicant’s knee injury suffered in the incident of 16 December 2008 (the effects of which are ongoing). Comcare is to pay the applicant’s reasonable party/party costs as agreed or taxed.
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Senior Member D O'Donovan
WORKERS COMPENSATION –discrete physical injury in 2001 - accepted condition of aggravation of sacro-iliitis not elsewhere classified, sprain of other specified sites of hip and thigh and displacement of intervertebral disc – second injury to knee sustained in 2008 as a result of weakness in left leg occasioned by earlier injury – whether chronic pain is a symptom of physical injuries or a secondary condition – chronic pain syndrome– adjustment disorder with depressed mood – whether the applicant’s second physical condition arose as a result of first accepted condition - whether the applicant’s conditions result in permanent impairment – nature of whole person impairment considered
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 14, 16, 19, 20, 24, 27, 67
Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419
Canute v Comcare

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 Ivill and Comcare (Compensation)

Details

AGLC: Ivill and Comcare (Compensation) [2020] AATA 36
Case: [2020] AATA 36
Decision Date: 16 January 2020

CaseChat Overview and Summary

This matter concerned an appeal by the applicant, Ivill, against decisions made by Comcare regarding compensation claims. The dispute involved claims for permanent impairment payments, compensation for chronic pain syndrome, and other related entitlements arising from a 2001 injury and a subsequent 2008 injury. The case was heard by D O'Donovan SM.

The primary legal issues before the Tribunal were whether the applicant was entitled to permanent impairment payments for her left knee, any impairment arising from the 2001 injury including psychological impairment, and compensation for her Chronic Pain Syndrome. Additionally, the Tribunal had to determine Comcare's liability for compensation in relation to the applicant's Depressive Disorder and reconsider decisions concerning medical expenses and incapacity payments for her knee injury.

The Tribunal placed little weight on the historical aspects of the applicant's witness statement, finding them to be derived from sources other than her direct memory, potentially damaging her credit. While accepting the applicant's description of current symptoms, the Tribunal expressed scepticism about their accuracy. The Tribunal affirmed decisions refusing permanent impairment payments for the left knee and for any impairment arising from the 2001 injury. It also affirmed Comcare's non-liability for Chronic Pain Syndrome. However, the Tribunal set aside decisions regarding the applicant's Depressive Disorder, substituting a determination that Comcare was liable for an adjustment disorder with depressed mood arising from pain related to the 2001 and 2008 injuries, noting this finding might be of historical significance. Furthermore, the Tribunal set aside a decision and remitted a matter to Comcare for reconsideration regarding compensation under sections 16 and 20 of the Act, and similarly set aside another decision and remitted it for reconsideration on the basis of Comcare's liability for medical expenses and incapacity payments related to the 2008 knee injury. Comcare was ordered to pay the applicant's reasonable party/party costs in relation to these remitted matters.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Prior to the hearing Comcare filed: (a)Tribunal Documents;(b)a bundle of extracted summonsed material;(c)a further report from Professor Peter Youssef dated 12 April 2018;(d)a further report from Mr George Haralambous dated 11 April 2018; and(e)the applicant’s workers’ compensation claim form dated 3 July 2017.The applicant’s oral evidence The witness statement filed by the applicant was of limited assistance to the Tribunal. It was part witness statement and part submission and was clearly a document prepared by the applicant’s lawyer based on a close review of the file. It is filled with quotations from medical reports which it is impossible to believe the applicant recovered from her own memory. That much was accepted by counsel for the applicant at hearing. The principles identified by Justice Robertson in a speech entitled ‘Affidavit Evidence’ are relevant:[It is important] to let a deponent speak for himself or herself. Too many times a deponent is asked in cross examination what they meant by particular words and the implicit or explicit answer is ‘I don’t know, my lawyer drafted it’. This does not instil confidence in the reliability of the evidence of that witness. Even worse is where the affidavit, for example, has frequent reference to the XYZ trust and the deponent has either never heard of it or does not know it by that description or title.[109][109] Alan Robertson, ‘Affidavit Evidence’ (Speech, College of Law 2014 Judges’ Series, 26 February 2014) < Notwithstanding that the Tribunal is a more informal jurisdiction, in circumstances where an applicant is expected to enter the witness box and adopt a statement under oath or affirmation, the same principles should be applied to the preparation of a witness statement as would be applied to the preparation of an affidavit. In cases where, the applicant’s claim history is long and her memory may be incomplete or inaccurate, unless there is reason to doubt the veracity of her reporting to doctors on earlier occasions, it is likely that contemporaneous records of reported symptoms will be more reliable than evidence given by an applicant from their memory. Incorporating doctors notes into a witness statement as if it were the applicant’s memory is unhelpful to the Tribunal and has the potential to damage the applicant’s credit. Generally speaking I have placed little weight on the parts of the applicant’s statement which deal with historical matters, as they are clearly derived from sources other than the applicant’s memory.[110] Matters such as the applicant’s description of her current symptoms I accept has been sourced from her, but for the reasons discussed below, I am sceptical about the accuracy of them.[110] I have relied on primary sources from which they were derived. The statement was supplemented by oral evidence from the applicant. The applicant gave evidence, in two separate periods totalling 2.5 hours, broken only by the lunch break. In that time, although she was hunched over throughout, she did not stand or take any short breaks despite having been offered the opportunity to do so.

Decision

Reasons for decision

Accordingly, I affirm the decision under review. The applicant has no entitlement as to costs in relation to this aspect of the matter.DECISION There are 6 decisions under review. The Tribunal affirms the reviewable decision in Tribunal Application 2017/6376 refusing the applicant permanent impairment payments in respect of the left knee. The applicant has no entitlement as to costs. The Tribunal affirms the reviewable decision in Tribunal Application 2017/7229 refusing the applicant permanent impairment payments in respect of any impairment arising from the 2001 Injury including any psychological impairment. The applicant has no entitlement as to costs. The Tribunal affirms the reviewable decision in Tribunal Applications 2018/1160 and 2018/1161 in so far as those decisions determine that Comcare is not liable to pay compensation under s 14 of the Act it relation to the applicant’s Chronic Pain Syndrome. The Tribunal sets aside the reviewable decisions in Tribunal Application 2018/1160 and 2018/1161 in so far as they relate to the applicant’s Depressive Disorder, and in substitution determines that Comcare is liable to pay compensation in respect of an adjustment disorder with depressed mood arising from pain experienced as a result of the 2001 Injury and the 2008 Injury, noting that this finding may be of historical significance only. Comcare is to pay the applicant’s reasonable party/party costs as agreed or taxed pursuant to s 67(8) of the Act. The Tribunal sets aside the reviewable decision in Tribunal Application 2017/2620 and remits the matter to Comcare for reconsideration in accordance with a direction that Comcare is liable to pay compensation under ss 16 and 20 of the Act. Comcare is to pay the applicant’s reasonable party/party costs as agreed or taxed pursuant to s 67(8) of the Act. The Tribunal sets aside the reviewable decision in Tribunal Application 2017/2645 and remits the matter to Comcare for reconsideration on the basis that Comcare is liable under ss 16 and 20 of the Act for medical expenses and incapacity payments in relation to the applicant’s knee injury suffered in the incident of 16 December 2008. Comcare is to pay the applicant’s reasonable party/party costs as agreed or taxed pursuant to s 67(8) of the Act.

Ratio Decidendi

Legal Principle Established

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