Jenkins and Comcare (Compensation) - [2020] AATA 499

Jenkins and Comcare (Compensation) [2020] AATA 499 (12 March 2020)
Division:GENERAL DIVISION
File Number: 2018/1309
Re:Linda Jenkins
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Senior Member Dr M Evans-Bonner

Date:12 March 2020
Place:Perth

The Tribunal affirms the Reviewable Decision dated 23 February 2018.
.........................[sgd]...............................................
Senior Member Dr M Evans-Bonner
CATCHWORDS
COMPENSATION – Workers’ Compensation – Commonwealth Employee – determination by Respondent of no present liability – medical expenses – incapacity payments – whether Applicant continues to suffer from an injury – accepted injury as described by Comcare not definitive – whether Applicant recovered from injury – whether an injury can continue after successful surgery – whether a new injury caused as a result of medical treatment – expert medical evidence – independence of experts when they have conferred – common law “but for” test does not apply to the Safety, Rehabilitation and Compensation Act 1988 – Reviewable Decision affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth), s 4, 4(3), 5A(1), 5B, 14, 16, 19, 20, 24, 27
CASES
Comcare v Martin [2016] HCA 43
March v E & MH Stramare Pty Ltd (1991) 171 CLR 506
Portors and Comcare [2017] AATA 2166
Prain and Comcare [2017] FCAFC 143
SECONDARY MATERIALS
Administrative Appeals Tribunal Person’s Giving Expert and Opinion Evidence Guideline, 30 June 2015
Federal Court of Australia, Expert Evidence Practice Note (GPN-EXPT) General Practice Note, Annexure A Harmonised Expert Witness Code of Conduct
REASONS FOR DECISION
Senior Member Dr M Evans-Bonner
12 March 2020
OVERVIEW

The Applicant is a 60 year old woman. She suffered an aggravation of a back condition in February and March 2007 whilst cleaning out and reorganising a storeroom during the course of her employment at the Department of Immigration and Citizenship

(the Department).
On 2 April 2007, the Applicant’s general practitioner, Dr Evan Jenkins, referred the Applicant for an MRI, which was carried out on 10 April 2007. The MRI results showed, amongst other things, “…degenerative changes within the mid and lower lumbar spine” and additionally, “a large right paracentral disc extrusion with superior extension at the L4/5 level” (T6, page 22).
On 13 April 2007 the Applicant underwent an “…L4/5 laminectomy and superior portion of L5 discectomy and right L4/5 nerve root decompression” (2007 surgery) which was performed by neurological surgeon Mr Neville Knuckey (T8, page 24).
On 8 May 2007 Dr Jenkins issued a Workers’ Compensation first medical certificate (T9, page 25), which stated a diagnosis of “acutely exacerbated chronic lumbosacral spondylosis/degenerative disc disease”. In this medical certificate, Dr Jenkins further stated that the Applicant had undergone a laminectomy, discectomy and nerve root decompression operation, stating that she has made an “excellent post-op recovery to date” and certifying her as fit to return to work on restricted duties.
The Applicant developed severe anal pain as a result of some of her pain medication, and underwent a lateral anal sphincterotomy which was performed by Mr…

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 Jenkins and Comcare (Compensation)

Details

AGLC: Jenkins and Comcare (Compensation) [2020] AATA 499
Case: [2020] AATA 499
Decision Date: 12 March 2020

CaseChat Overview and Summary

This matter concerned an appeal to the Administrative Appeals Tribunal regarding a determination by Comcare of no present liability to pay compensation to the applicant. The dispute centred on whether the applicant continued to suffer from an injury sustained at work in 2007, and consequently, whether she remained entitled to incapacity payments and medical expenses.

The Tribunal was required to determine whether the applicant had recovered from her 2007 work injury, whether an injury could persist despite successful surgery, and whether any subsequent medical treatment or new injuries had caused her ongoing condition. The court also had to consider the weight and independence of expert medical evidence, particularly when experts had conferred, and the appropriate test for causation under the *Safety, Rehabilitation and Compensation Act 1988* (Cth).

The Tribunal accepted the opinion evidence of Dr du Plessis as independent and impartial, noting his clear articulation of the basis for his reassessment of the medical evidence. While acknowledging the applicant's honest belief of ongoing suffering, the Tribunal found that medical records and expert evidence provided a more accurate picture. Several medical certificates and reports from treating practitioners indicated an excellent post-operative recovery and resolution of back pain following the 2007 surgery. The Tribunal found substantial agreement among experts that the 2007 surgery was successful in relieving nerve compression, although it permanently altered the applicant's spinal architecture. The Tribunal also noted that the applicant continued to be permanently incapacitated for work.

The Tribunal found Mr Bannan's report to be equivocal, noting contradictory statements regarding the applicant's recovery from the 2007 operation and the ongoing incapacity. It was unclear whether his conclusion of ongoing incapacity stemmed from the 2007 injury or subsequent events. Consequently, the Tribunal affirmed the Review Officer's decision that Comcare had no present liability.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

As outlined in the above excerpts from the supplementary report and from the hearing transcripts, Dr du Plessis was able to clearly articulate the basis for changing his opinion with reference to the relevant medical evidence, and after considering Mr Phillips’ clarification of the nature of the 2007 surgery based on his expertise as an orthopaedic surgeon. Thus Dr du Plessis changed his opinion because he believed that it was correct and appropriate to do so after a reassessment of the relevant medical evidence. The Tribunal therefore accepts the opinion evidence of Dr du Plessis as being independent and impartial. Consideration of the Medical and Expert Evidence The Tribunal accepts that it is the Applicant’s honest belief that she continues to suffer from the effects of the 2007 work injury. However, as noted above, the Applicant’s medical history is complicated, and she sometimes had difficulty with her recollection due to the passage of time (transcript, day 1, pages 20, 28, 32). Thus, the medical records before the Tribunal, informed by the evidence of expert medical witnesses, are likely to provide a more accurate answer to the question of whether the Applicant continues to suffer from her 2007 work injury. Some of the documentary medical evidence before the Tribunal which was outlined above suggests that the Applicant was recovering well, or had recovered, from her 2007 surgery. This evidence includes:(a)the workers’ compensation first medical certificate signed by Dr Jenkins dated 8 May 2007 which stated that the Applicant has made an “excellent post-op recovery to date” (T9, page 25); (b)the operation report of Mr Cooke on 9 May 2007 which stated that the Applicant’s back pain “resolved completely after spinal surgery 3 weeks ago” (Exhibit R14); (c)Mr Knuckey’s letter to Dr Jenkins dated 11 September 2007 stating that the Applicant was “doing well following lumbar decompression”, “has no significant back or leg pain” and that “On examination her lumbar wound is well healed” (T10, page 26);(d)Dr Jenkins’ note in his report of 5 November 2007 that “I reviewed her [the Applicant] on 8 May 2007 and noted that she was making an excellent recovery following her spinal surgery” (T16, page 58);(e)a consultation note from Dr Jenkins on 21 November 2007 (Exhibit R15) stating, “disability now not related to back”; (f)Mr Gope’s statement that at the time he assessed the Applicant on 27 November 2007 that, “[f]rom the point of view of disc surgery she made a very satisfactory and uneventful recovery” (T17, page 69);(g)Mr Bannan’s statement in his report of 8 November 2018 that, “I understand the patient had an L4/5 discectomy done by Dr Neville Knuckey and she recovered from this operation”. However, as discussed above, Mr Bannan’s evidence is equivocal and his exact opinion was unclear to the Tribunal. When the Tribunal compares the evidence of Dr du Plessis, Mr Phillips and Dr Jenkins, substantial points of agreement can be found. Each expert accepted that the:(a)Applicant had pre-existing degenerative changes in her spine;(b)injury she sustained at work in 2007 aggravated the Applicant’s pre-existing degenerative changes resulting in her acute disc extrusion and the need for the 2007 surgery;(c)2007 surgery performed by Mr Knuckey was successful in relieving the compression of the Applicant’s nerve;(d)architecture of the Applicant’s back was permanently altered by the 2007 surgery performed by Mr Knuckey; and(e)Applicant continues to be permanently incapacitated for work.

Decision

Reasons for decision

However, on 23 February 2018, a Review Officer of the Respondent affirmed the no present liability determination (T2, pages 8-16; T122, pages 343-351), stating: “The evidence supports the original determination was correct and it has therefore been affirmed”. This is the Reviewable Decision currently before the Tribunal. On 14 March 2018 the Applicant lodged an application seeking review of the Reviewable Decision in the General Division of the Administrative Appeals Tribunal (the Tribunal). THE PARTIES’ SUBMISSIONS By way of summary, the Respondent’s case was that the Reviewable Decision should be affirmed for the following reasons (transcript, day 2, page 107; written closing submissions, paragraphs [16]-[18]):(a)The Applicant’s injury to her lumbar spine resolved approximately six months after her 2007 surgery, and that any symptoms that she suffered following her surgery were the result of pre-existing conditions and other exacerbations and aggravations that she had experienced from time to time. The Respondent no longer relied on the opinion of Dr Mattes that the Applicant’s symptoms were psychosocial (see also transcript, day 1, page 4).(b)In the alternative, the Respondent submitted that if the Tribunal were to find that the Applicant continues to suffer from the lumbar spine condition that it was no longer contributed to, to a significant degree, by her employment (and therefore the definition of an injury in s 5A of the SRC Act is not satisfied). (c)Further in the alternative, the Respondent submitted that even if this causative threshold continued to be met, there was not enough evidence to satisfy the remaining statutory criteria in ss 16 and 20 of the SRC Act, specifically the “as a result of” and the “in relation to” tests, and therefore liability would not arise. The Applicant’s position is that the Reviewable Decision should be set aside and substituted with a new decision that the Respondent continues to be liable to pay compensation to the Applicant for her 2007 work injury (written closing submissions, paragraph [18]). Specifically, the Applicant submitted that:(a)She did not recover from her 2007 work injury, and that she continues to suffer from the injury. (b)The fall in the supermarket on 21 December 2016 caused a separate injury which resolved. (c)The Applicant has a continuing need for medical treatment and incapacity for work caused by the 2007 work injury. The submission was that the “but for” test of causation (March v E & MH Stramare Pty Ltd (1991) 171 CLR 506) applied. The consequence, according to the Applicant, was that there was no need to satisfy the remaining criteria in ss 16 and 20 of the Act, (the “as a result of” and the “in relation to” tests). In summary, the Applicant’s submission was that Comcare is liable to pay compensation for an injury if it results in incapacity, which is “a straight causal enquiry” (transcript, day 1, page 12) and that, “the evidence suggests that the applicant would not be in the position she is in now were it not for the incidents at work in early 2007” (Exhibit A1, paragraph [11]). ISSUES

Ratio Decidendi

Legal Principle Established

Mr Bannan stated on page 2 of his report that: In 2007, Linda was working at Perth airport cleaning out an office and she suffered an injury to her low back. I understand the patient had an L4/5 discectomy done by Dr Neville Knuckey and she recovered from this operation. She continued to work up until 2011 when she had a 2 level spinal fusion of L3/4 and L4/5 ALIF done by myself in June 2011. Between 2011 and the accident at Coles in 2016, she was not working. She tried to return to work program but that did not help, so she has not effectively worked since 2011, therefore the incapacity is ongoing from the accident in 2007.(Emphasis added.) This statement is somewhat equivocal because Mr Bannan first stated that the Applicant recovered from the operation performed by Mr Knuckey, and yet in the final sentence he stated that the Applicant’s “incapacity is ongoing from the accident in 2007”. It is unclear whether Mr Bannan was referring to the Applicant’s incapacity in a general sense, given that she had a succession of back complaints from 2007 onwards, or whether he believed that she continued to suffer from the 2007 work injury despite his prior statement that the Applicant had “recovered”. Further, Mr Bannan stated on page 2 of his report that the ongoing treatment required by the Applicant is an “ongoing need for analgesia”. However, in the next paragraph in his report Mr Bannan commented that, “it is difficult to say whether the ongoing need for the analgesic is related to the accident in 2007, or post diffusion in June 2011, or the more recent accident at Coles on 21/12/16”. Thus, it is difficult for the Tribunal to draw any definitive conclusions from Mr Bannan’s report. As discussed above, his conclusions are somewhat contradictory. This is further exacerbated by his comments about it being difficult to pinpoint which incident the ongoing treatment relates to. Even if the Tribunal accepts his conclusion that the Applicant’s “incapacity is ongoing from the accident in 2007”, the basis for this conclusion is not apparent. What is clearer from the evidence above is Mr Bannan’s view that the Applicant was recovering well following the L5/S1 fusion surgery he performed on 22 May 2017 due to her fall in the shopping centre. This supports the Applicant’s submission that she recovered from the ruptured disc which occurred as a result of the fall in the supermarket. Dr Jenkins Dr Jenkins has been the Applicant’s treating general practitioner for approximately 13 years (Exhibit A6). His qualifications include a Bachelor of Medicine, Bachelor of Surgery (MBBS) from the University of Western Australia. He is a fellow of the Royal Australian College of General Practitioners (FRACGP) and a WorkCover Western Australia Approved Medical Specialist (AMS) (Exhibit A8). Dr Jenkins wrote several reports regarding the Applicant, with the most recent dated 9 November 2018 (Exhibit A6). Dr Jenkins’ first report was written on 5 November 2007 (T16, page 57) and stated a diagnosis for the Applicant as “severe acute L4/5 lumbosacral disc bulge with right leg sciatica and central canal stenosis at the level of L4” (page 59). In this report Dr Jenkins gave the opinion that the Applicant’s condition was caused by the work-related lifting and bending undertaken by the Applicant in early 2007. He noted that the Applicant had a “pre-existing lumbosacral degenerative disc disease” which was “a pre-disposing factor for the development of an acute lumbosacral disc bulge” (see pages 60-61 of the report).