JMLW and Comcare (Compensation)

Case [2020] AATA 4354

JMLW and Comcare (Compensation) [2020] AATA 4354 (2 November 2020)

Division:GENERAL DIVISION

File Number(s):2017/7733, 2017/4137, 2016/3682, 2018/6070      

Re:JMLW  

APPLICANT

ComcareAnd  

RESPONDENT

DECISION

Tribunal:Ms S Taglieri SC, Member

Dr R Walters, Member

Date:2 November 2020

Place:Hobart

The reviewable decisions made by the Respondent on 24 May 2016 and 13 December 2016 (application no. 2016/3682 and 2017/4137 respectively) are affirmed.

The reviewable decision made by the Respondent on 12 May 2017 (application no. 2017/7733) is affirmed.

The reviewable decision made by the Respondent on 6 September 2018 (application no. 2018/6070) is set aside and the determination remitted to the Respondent to give effect to the reasons at [178] to [179] of this decision.

................................[sgd]......................................

Ms S Taglieri SC, Member

COMPENSATION – whether the Applicant still suffers symptoms and/or effects from a compensable injury – whether liability exists for a new injury - no longer suffering the effects of the compensable injury - no liability for new injury - entitlement to payment of household services prior to date of reviewable decision

Legislation

Safety Rehabilitation and Compensation Act 1988

Cases

Comcare v Lofts [2013] FCA 119
Comcare v Nichols [1999] FCA 209
Commonwealth v Borg (1991) 20 AAR 299
Commonwealth of Australia v Muratore [1978] HCA 47
Flood v Comcare [2020] AATA 2152
Gallway and Australian Postal Corporation [2015] AATA 259
Hart v Comcare (2005) 145 FCR 29
Heales and Comcare [2020] AATA 810
Hopkins and Comcare [2016] AATA 742
Ilsley v Wattyl Australia Pty Ltd (1997) 75 FCR 1
March v E & MH Stramare Pty Ltd (1991) 171 CLR 506
Manns v Comcare [2012] AATA 462
McDonald v Director-General of Social Security [1984] FCA 57
Re Quinn and Australian Postal Corporation (1992) 15 AAR 519
Riddle v Telstra Corporation Ltd [2006] FCA 58

Telecommunications Commission v Barker [1990] FCA 489

REASONS FOR DECISION

Ms S Taglieri SC, Member
Dr R Walters, Member

  1. The Tribunal has before it four applications for review. Two applications, 2016/3682 and 2017/4137, relate to whether the Applicant had a present entitlement to medical treatment and household services in 2016. Each in turn involved a question of whether the need for treatment and household services resulted from the condition for which the Respondent had accepted liability, being aggravation of disc degeneration L4-L5/L5/S1, suffered on 20 April 2004 (“the compensable injury”).[1]

    [1] T7, T Documents of (2017/4137), pp 24-26.

  2. Application 2017/7733 concerns the rejection of a claim made under section 14 of the Safety Rehabilitation and Compensation Act 1988 (“the Act”). The Applicant had lodged a claim for compensation on 24 October 2016,[2] claiming that on 26 September 2005, he suffered an aggravation of his previously compensable injury, while employed with the Department of Industry, Tourism and Resources (“the 2005 aggravation”).

    [2] T6, T Documents (2017/7733), pp 16-22.

  3. On 12 May 2017,[3] the Respondent determined to affirm its earlier decision denying liability for the 2005 aggravation. Liability was denied on the basis that the Respondent was not satisfied a new injury was suffered, or that if…

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AGLC
JMLW and Comcare (Compensation) [2020] AATA 4354
Case
[2020] AATA 4354
Decision Date

CaseChat Overview and Summary

This matter concerned an application by JMLW (the Applicant) against Comcare (the Respondent). The Applicant sought review of a decision made by the Respondent concerning his entitlement to compensation. The proceedings were heard by Ms S Taglieri SC, a Member of the Tribunal.

The central legal issue before the Tribunal was whether the Respondent, by affirming a reviewable decision that the Applicant no longer suffered the effects of a compensable injury, could retrospectively negate earlier determinations that had entitled the Applicant to receive payments for household services expenses. Specifically, the Tribunal had to determine if such an affirmation could operate in contradiction to past determinations that had not been subject to review.

The Tribunal considered the authority of *Hannaford v Comcare*, cited by the Respondent. While *Hannaford* affirmed the Australian Administrative Tribunal's (AAT) power to make subsequent findings of fact and allow for progressive, evolving decision-making under the *Safety, Rehabilitation and Compensation Act 1988* (Cth), the Tribunal found that *Hannaford* did not address the specific contention raised by the Respondent. The Tribunal distinguished the present case by noting that *Hannaford* did not involve a situation where affirming a reviewable decision to cease liability for compensation could operate retrospectively and contradict prior, unreviewed determinations. The Tribunal highlighted that the *Hannaford* decision itself noted that a departure in findings of fact did not necessarily affect previously accepted liability.

The Tribunal concluded that the Respondent's contention would create an impermissible contradiction between earlier determinations entitling the Applicant to household services expenses and a subsequent affirmation of a reviewable decision. The Tribunal found that the reasoning in *Hannaford* did not support the Respondent's argument that an affirmation could operate retrospectively to contradict past determinations.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The Applicant presented his case by tendering documents and giving oral evidence under cross examination. The documents tendered comprised of various written submissions, written statements and written contentions. In total there were six documents of this character.[16] Further, a Statutory Declaration was tendered in evidence, with medical certificates of Dr Boland dated 19 December 2019 and 12 February 2020.[17] [16] Exhibits A1, A2, A3, A4, A5 and A8.[17] Exhibits A6 and A7.THE APPLICANT’S EVIDENCE Counsel for the Respondent cross-examined the Applicant at length in relation to symptoms of back pain experienced from 1990 onwards. The Applicant’s evidence was that while playing tennis in 1990 he experienced his first episode of lower back pain. He described this as an acute episode. When asked if the pain in his lower back continued at this time, the Applicant stated that he had rested over the weekend and returned to work after about four days. He said he had fully recovered. He was challenged about this evidence and it was put to him that he had told a Dr Griffin that the recovery had taken two weeks,[18] the Applicant disagreed.[18] T8, T Documents (2016/3682), pp 40. The Applicant was also cross-examined about having investigations undertaken on his lumbar spine in 1990, in particular an x-ray and CT scan. The Applicant claimed that he did not recall whether he had to take time off work. When asked about whether he experienced back pain between 1990 and 1995, he stated that apart from a “niggle” he was pain free. He said that in this period he was relatively fit and could do whatever he wanted to and that his body coped well. He worked long days commencing at 5:00 AM. He agreed that he had consulted a physiotherapist and stated it was “possibly weekly”, but that he could not recall precisely.[19] He stated he had a low pain threshold and was attentive to his symptoms.[19] Transcript, 11 March 2020, p 30, lines 2-3. The Applicant did not dispute that he had seen a physiotherapist, Mr Latimer, 70 times between 1993 and 1995. However, the Applicant qualified his concession by stating that his relationship with Mr Latimer was not just one of therapy but education and training so that he could self-manage. The Applicant was also asked to concede that he had given a history to Dr Pitcher in October 1998 of suffering a disc protrusion in 1995. The Applicant stated that he could not recall seeing Dr Pitcher or what the radiologist’s report at the time may have demonstrated. Counsel for the Respondent pressed the Applicant about the nature of his lumbar spine symptoms between 1995 and 1998. In all answers given by the Applicant he stated he did not have an exact memory of that period of time. Despite this he stated that he did recall having adopted a series of regular exercises, stretches, daily walks and pool sessions all generally to manage his health. He agreed that he had been advised that this regime was beneficial for management of his back and his job situation, which necessitated prolonged static sitting either at a computer, at his desk in meetings or while travelling.

Decision

Reasons for decision

In support of his submissions, Counsel for the Respondent cited Hannaford v Comcare and Conti J at [57]: “In my opinion, it should be concluded, upon the correct construction of the SRC Act, and in particular of the provisions thereof upon which I have focused attention in these reasons, the AAT is empowered to make subsequent findings of fact in relation to the circumstances the subject of decision-making under ss 16 and 19 of the SRC Act, and also under ss 21 and 27 of the SRC Act, where the determination of the first instance decision-maker (here of course Telstra) made under the auspices of s 14 of the SRC Act remains in operation in the sense that it has not been the subject of any inconsistent outcome in the context of a subsequent review by the AAT. The statutory scheme allows for progressive and evolving decision-making giving effect to the provisions of ongoing review of relief or entitlements in the nature of course of workers compensation, being review which allows for adjustment or change in the light of events and circumstances which may subsequently happen. The statutory scheme hence reflects a flexible scope for adjustment by way of decisions in the nature of awards to be made subsequently to the determination of s 14 liability, whether that determination be made in isolation, or in the context of decision-making concerning consequential relief that may be required in the light of evolving circumstances. It is therefore a scheme which allows progressively for ongoing relief, and is thus not comparable of course with the process of curial resolution of the traditional common law entitlement of an injured employee for damages as a consequence of the negligent conduct of an employer. The opening words of s 14(1) ‘[s]ubject to this Part...’ are consistent with the flexibility inherent in the ensuing codification of the various facets of compensation envisaged.” (bolded for emphasis by this Tribunal) The Tribunal questioned Counsel for the Respondent, about whether the authority of Hannaford stood for the proposition he appeared to be putting. Namely, that if the Tribunal found that by 2013 the Applicant no longer suffered the effects of and/or did not need household services as a result of the compensable injury, it should affirm the reviewable decision, meaning that the affirmation would have retrospective effect and contradict the earlier determinations. In the Tribunal’s view, the Respondent’s contention would create contradiction between, earlier determinations entitling the Applicant to receive payments for household services expenses up until 30 September 2015 when those earlier determinations were not subject to review. Hannaford did not deal with the contention being put by the Respondent in this case, that affirmation of a reviewable decision ceasing liability for medical or other types of compensation, because the worker no longer suffered the effects of compensable injury, could operate retrospectively and in contradiction with past determinations under sections 16, 19, 24, 29 or otherwise. In the Tribunal’s view the reasons of Conti J make this plain, where after referring to the decision of Edmonds J in Duongv Australian Postal Corporation[113] at [44] he stated: “So much was pointed out by Telstra to be an issue not involved in the present proceedings, since Telstra had accepted that ‘a departure at that level of fact’ produced no effect upon its previously accepted liability, or indeed any prospective liability”[114].[113] [2005] FCA 991.[114] Ibid at [53].

Ratio Decidendi

Legal Principle Established

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