John Lewis and Comcare

Case [2015] AATA 285

[2015] AATA 285  

Division GENERAL ADMINISTRATIVE DIVISION

File Number(s)

2013/5395; 2013/6289-94

Re

 John Lewis

APPLICANT

And

Comcare

RESPONDENT

DECISION

Tribunal

Deputy President J W Constance
Deputy President Gary Humphries
Date 30 April 2015  
Place Sydney

2013/5395

The decision of Comcare, dated 9 October 2013, denying liability to compensate Mr Lewis in respect of a claimed injury to his right knee, is affirmed.

2013/6289-6294

The decision of Comcare, dated 3 December 2013, denying liability to compensate Mr Lewis in respect of claimed permanent impairments resulting from injuries to his hands, is affirmed.

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

Deputy President J W Constance

Catchwords

COMPENSATION – injury - claim for compensation for injury to right knee – whether Applicant suffered an injury to right knee – decision affirmed

COMPENSATION – permanent impairment – injuries to hands – no finding of resultant permanent impairment – decision affirmed

COMPENSATION – jurisdiction – whether jurisdiction to consider claim based on nature and conditions of work – no claim lodged in respect of an injury arising out of nature and conditions of work

Legislation

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4(1), 14, 24, 53

Cases

Canute v Comcare [2006] HCA 47
Szabo v Comcare [2012] FCAFC 129

REASONS FOR DECISION

Deputy President J W Constance
Deputy President Gary Humphries

INTRODUCTION

  1. Between 1984 and October 1998, Mr Lewis was employed as a Licensed Plumber, Drainer and Gasfitter by Asset Services (a Commonwealth government agency).  During most of that time he worked on Army bases within the Sydney region, often on call for emergencies.  It was hard physical work.

  2. Not surprisingly, Mr Lewis suffered a number of soft tissue injuries to his hands over the years. In addition, he says that on one occasion in 1991, he fractured his left thumb when he hit it with a hammer.  Mr Lewis also claims that in 1995 he injured his right knee at work.

  3. Mr Lewis is claiming compensation in respect of all these injuries in accordance with the Safety, Rehabilitation and Compensation Act 1988 (Cth). He claims that the injuries to his hands have resulted in permanent impairments for which he is entitled to compensation.[1]  In respect of the right knee injury he claims Comcare is liable to pay compensation as the injury has resulted in incapacity for work and impairment.[2] In particular he claims that he was required to undergo surgery to replace his right knee as a result of the injury.

    [1] See sections 24 and 26 of the Safety, Rehabilitation and Compensation Act 1988 (Cth)

    [2] See section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth)

  4. Comcare has decided to deny liability for each claim.  Mr Lewis has applied to the Tribunal to review these decisions.

  5. For the reasons which follow, each of the decisions under review will be affirmed.  As the claim in respect of the knee is separate from those in respect of the hand injuries we will deal with the claims separately.

    PART A.  APPLICATION 2013/5395

    CLAIM IN RESPECT OF INJURY…

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John Lewis and Comcare [2015] AATA 285
Case
[2015] AATA 285
Decision Date

CaseChat Overview and Summary

The case of John Lewis and Comcare involved claims by Mr Lewis for compensation for injuries sustained during his employment with the Commonwealth Public Service. The central dispute was whether Mr Lewis had suffered injuries to his right knee, left thumb, and hands, and if these injuries resulted in permanent impairments. The case was heard in the Administrative Appeals Tribunal (AAT). The primary legal issues were whether Mr Lewis had suffered injuries, if these injuries resulted in impairments, and if those impairments were permanent. The court also needed to determine if the injuries arose from the nature and conditions of Mr Lewis's employment, which would confer jurisdiction under the Safety, Rehabilitation and Compensation Act 1988.

The court examined the evidence provided by Mr Lewis, including his varying accounts of the injury dates, and the lack of medical evidence to support his claims. The tribunal found inconsistencies in Mr Lewis's statements about the injury to his right knee, leading to a conclusion that he was not a reliable historian. Additionally, there was no documentary evidence to support the lodgement of a claim regarding the alleged knee injury. The medical evidence presented, while indicating chronic osteoarthritis and other conditions, did not conclusively link these to the injuries Mr Lewis claimed. Consequently, the tribunal affirmed Comcare's decisions to deny liability for compensation regarding the claimed injuries to the right knee, left thumb, and hands. The reasoning was based on the unreliability of Mr Lewis's account, the lack of supporting medical and documentary evidence, and the absence of a clear connection between the claimed injuries and the nature of Mr Lewis's employment.

Orders

Orders of the court

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Background

Background to the litigation

The following issues arise for determination.(a)Have any of the injuries suffered by Mr Lewis resulted in an impairment?(b)If so, is that impairment or are those impairments permanent?(c)If so, what is the degree of permanent impairment in each case?FACTS When Mr Lewis submitted his original claim in respect of the injury to his left thumb, he described the injury as “fractured left thumb”.[22] There does not appear to have been any medical evidence lodged in support of the claim that Mr Lewis' thumb was fractured.[22] Exhibit R2 p22. Mr Lewis injured his thumb when he was using a lump hammer and a chisel to break way part of a concrete wall in November 1991. He accidentally hit his thumb with the hammer. The next day Mr Lewis consulted his general practitioner, Dr Tan, who told him that he had sustained a fracture of the thumb. In a certificate dated 10 August 2012, which accompanied Mr Lewis' claim for compensation for permanent impairment, Dr Senior gave his diagnosis of the condition for which the claim for permanent impairment was made as “severe osteoarthritis multiple joints left hand secondary to old fracture.” [23][23] Exhibit A1 p.10. Mr Lewis continually suffers pain in his left thumb.THE ARGUMENT PUT ON BEHALF OF MR LEWIS In the Applicant’s Statement of Facts, Issues and Contentions filed on behalf of Mr Lewis on 1 September 2014 it was stated, in part:As a result of the 6 frank injuries … and as a result of the nature of the particular tasks involved in the Applicant employment, the Applicant suffers from a generalised osteoarthritic condition to his hands.……The Applicant has sustained an injury to his hands generally and in particular an injury to his left thumb as result of his employment with the Commonwealth Public Service which has resulted in permanent impairment liable to be compensated by the Respondent under ss.24 and 27 of the Safety, Rehabilitation and Compensation Act 1988…MEDICAL EVIDENCEDr McGroder, Consultant Occupational Health Physician Dr McGroder examined Mr Lewis on 26 July 2012. He provided a report dated 26 July 2012.[24][24] Exhibit A1 p.75. Dr McGroder reported:He has had a number of injuries to the hands and fingers and this has resulted in broken bones and he has developed secondary osteoarthritis. He has pain and restriction of range of movement of the fingers and has difficulty using any force or pincer gripping involving the fingers and thumb.……… there was evidence of arthritis in the IP joints and decreased strength and dexterity noted.……Diagnosis……Left Hand - chronic osteoarthritisRight Hand - chronic osteoarthritis.Dr Rea, Surgeon At the request of Comcare, Dr Rea examined Mr Lewis on 14 February 2013. He provided reports dated 15th February 2013,[25] and 5 April 2013.[26] [25] Exhibit A1 p.90.[26] Exhibit A1 p.94. In his first report, Dr Rea stated, in part:A specific condition which this patient now suffers is a significant disability in both hands, and the prognosis for this condition is not good.The patient were certainly not exaggerating his symptoms or consciously guarding any restriction of movement, and my findings on physical examination were consistent with the patient’s complaints.There is no doubt that the patient’s current condition is related to his previous employment as a technician and trade worker; there are no factors unrelated to work in his disability. I do not consider that there is any particular age element in this patient’s disability, and he has not developed any different condition from that already listed and claimed for.There is no doubt that the patient’s impairments are permanent, and this will continue indefinitely.……I consider that the impairment for the right upper extremity, hand, and arm, is 30%; and for the left upper extremity, hand, and arm, is 25%.I am not able to isolate the effects of the patient’s injuries in my assessment.Dr Bodel, Orthopaedic Surgeon

Evidence

Evidence Before The Court

Neither Mr Lewis nor the Department of Finance has been able to locate any documentary evidence to support the lodgement of a claim in respect of the injury Mr Lewis says he suffered. The Department maintains the records of Asset Services.Evidence of Dr Senior, General Practitioner Dr Senior has been Mr Lewis’ general practitioner since 2008. He provided three reports,[20] and gave evidence. [20] Exhibit A1 pp.71-74. In February 2012, Dr Senior reported:John has ongoing pain in his right knee, which limits his mobility and activity levels. He has a persistent ache in the knee. I believe he has ongoing significant impairment in the knee, which is caused by his initial injury. It would be very unlikely for him to have so many musculoskeletal injuries resulting in osteoarthritis and epicondylitis (and now bursitis), and then also have a similar problem in a joint and this be unrelated to the initial injuries. There is no other obvious cause of his knee injury.[21][21] Exhibit A1 p.70. When he gave evidence, Dr Senior said that based on his understanding of Mr Lewis’ employment duties and injuries to his joints, his employment made a “significant contribution” to his present injuries. Dr Senior agreed that if Mr Lewis suffered a medial ligament tear he would have required several weeks off work to recover.Discussion Although Mr Lewis does not bear an onus of proof, we must be satisfied on the evidence before us that, on the balance of probabilities, Mr Lewis suffered the injury he alleges. It is not necessary that we be satisfied of the exact date of the alleged injury. Considering all of the evidence, we are not satisfied that Mr Lewis suffered a medial ligament tear to his right knee at any time. The variations in the statements made by Mr Lewis and his failure to tell both Dr McGill and Dr Bornstein of the ongoing pain in his right knee, which he alleges he suffered, causes us to conclude that he is not a reliable historian. In our view, it is unlikely that all documents relating to the lodgement of the claim have been lost. Further, it is unlikely that there is no record of Mr Lewis having taken leave at the time he says he was injured, if in fact he took such leave. Dr Senior’s opinion that Mr Lewis’s condition of osteoarthritis was caused by an injury sustained at work was based on the history given to him by Mr Lewis. For the reasons we have stated, we are not satisfied that the history given by Mr Lewis in regard to his right knee was accurate. Mr Lewis relied heavily on there being no detail of claim 22 in the list of his claims maintained by Comcare. Comcare maintains that this was a result of a computer glitch. Nonetheless, we are satisfied that Mr Lewis initially claimed the injury occurred within the range of dates he did because he was aware that claim 22 had no details entered against it in Comcare’s records.Other issues in relation to Mr Lewis' claim in respect of his right knee As we are not satisfied that Mr Lewis suffered the injury he claims, it is unnecessary that we decide the further issues relating to notice of the injury and what, if any, impairment Mr Lewis has suffered as a result of the injury.

Decision

Reasons for decision

Mr Lewis has made many claims over the years and has made more than one claim in respect of the injury to his right knee. It may be that in other claims there is reference to the nature and conditions of his work, but we can only review those claims in respect of which Comcare has made a reviewable decision. These are the claim in respect of the knee made 22 March 2013[40] and the claims in respect of the injuries to his hands made 10 August 2012[41] and 13 November 2012.[42]PART D. CONCLUSION[40] Exhibit R1 p.34.[41] Exhibit A1 p.10.[42] Exhibit A1 p.45.Application 2013/5395 For the reasons set out, the decision of Comcare, made 9 October 2013, denying liability to compensate Mr Lewis in respect of a claimed injury to his right knee, will be affirmed.Applications 2013/6289-6294 For the reasons set out, the decision of Comcare, made 3 December 2013, denying liability to compensate Mr Lewis in respect of claimed permanent impairments resulting from injuries to his hands, will be affirmed.

Ratio Decidendi

Legal Principle Established

It is argued on behalf of Comcare that we cannot be satisfied that Mr Lewis suffered the injury to his knee. It is further contended that, even if we are satisfied that the injury occurred, the Act does not apply (and therefore Mr Lewis is not entitled to compensation under the Act) as he failed to give notice of the injury as required by subsection 53(1).CONSIDERATIONDid Mr Lewis suffer an injury to his right knee during the period 28 March 1995 and 21 November 1995?Dates of injury nominated by Mr Lewis Statements by Mr Lewis as to precisely when he injured his knee vary. In his claim form,[8] and when giving evidence before us, Mr Lewis nominated the date of injury as being between 28 March 1995 and 21 November 1995. He also referred to this period in a letter dated 28 May 2013 forwarded to Comcare.[9][8] Exhibit R1 p.48.[9] Exhibit R1 p.53. The range of dates (28 March 1995 to 21 November 1995) coincides exactly with the period identified in a Comcare Employee Claim List[10] relating to Mr Lewis and released to him under the Freedom of Information Act on 16 May 1997. There is no entry opposite claim number 22 on that form. The remaining 29 claim numbers record claims all made by Mr Lewis. Claim number 21 is dated 21 November 1995; claim number 23 is dated 28 March 1995. When it was put to Mr Lewis that he had nominated the date of his knee injury to coincide with the period which included the missing claim number 22, he denied this.[10] Exhibit A1 p.115. Mr Lewis was assessed by Dr Kalnins, Orthopaedic Surgeon, on 18 July 2013. In his report dated 18 July 2013,[11] Dr Kalnins records Mr Lewis having told him that the date of his injury was 2 January 1996. Mr Lewis denied that he told Dr Kalnins that he was injured on this date.[11] Exhibit R1, p.73. In a report dated 9 April 2014,[12] Dr Bodel, Orthopaedic Surgeon, records having taken a history from Mr Lewis that the injury occurred on 28 May 1995. When asked, Mr Lewis said that he did not know where these dates came from, but he was sure that there was only one occasion when he injured his right knee.[12] Exhibit A1 p.63.Evidence as to time Mr Lewis was absent from work following the injury Mr Lewis told us that he was off work for “about seven days” after he hurt his knee. In a letter to Comcare dated 28 May 2013[13] Mr Lewis stated, in part:I was on Call Out at the time I suffered a medial ligament tear to my Right Knee at the Ingleburn Army Camp, I was treated by an Army Doctor at the Ingleburn Army Camp, reported the Injury to my Right Knee immediately to my Call Out supervisor and the next day to my Work Supervisor, I had numerous weeks off with this injury, all these records are in the hands of my past employer, Asset Service as I did lodge a Compensation Claim with Asset Service Pay Office when I finally returned to work and subsequently I was paid compensation for the period I was off.[13] Exhibit R1 p.53 On 7 June 2013, Mr Lewis made a statutory declaration in which he stated that he recalled having a “lengthy time off work with this injury”.[14][14] Exhibit R1 p.66.