Kropp and Comcare (Compensation) - [2019] AATA 4078

Kropp and Comcare (Compensation) [2019] AATA 4078 (4 October 2019)
Division:GENERAL DIVISION
File Number(s): 2017/7021
Re:Benjamin Kropp
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Senior Member Linda Kirk
Date:4 October 2019
Place:Canberra

The Tribunal sets aside the Reviewable Decision dated 28 September 2017.
In substitution, the Tribunal decides that the original determination dated 5 August 2016 is reinstated.
........................................................................
Senior Member Linda Kirk
CATCHWORDS
WORKERS’ COMPENSATION – stenosing tenosynovitis – trigger finger – whether the Applicant suffers an ailment or an aggravation of an ailment as defined in s 4 of the Safety, Rehabilitation and Compensation Act - whether the respondent is liable to pay compensation under s 14 of the Safety, Rehabilitation and Compensation Act – whether the ailment or aggravation of an ailment was contributed to, to a significant degree, by the Applicant’s employment – decision under review set aside and substituted
Legislation
Administrative Appeals Tribunal Act 1975
Safety, Rehabilitation and Compensation Act 1988
Cases
Comcare v Power [2015] FCA 1502
Comcare v Reardon [2015] FCA 1166
McDonald v Director-General of Social Security (1984) 1 FCR 354
REASONS FOR DECISION
Senior Member Linda Kirk
4 October 2019

Mr Benjamin Kropp (‘the Applicant’) was born in 1979. He commenced employment as a Police Officer with the Australian Federal Police (‘AFP’) on 10 April 2007.
On 20 January 2015, the Applicant sustained an injury to his left thumb whilst working crowd control at Canberra Stadium in Bruce. The Incident Report describes the injury as ‘dislocated left thumb removing a pitch invader’.[1]
[1] T3, 4.
On 30 January 2015, the Applicant submitted a claim for workers’ compensation for ‘bruised thumb – L’ for this injury.[2] On 27 February 2015, Comcare (‘the Respondent’) accepted liability for ‘sprains and strains of finger (left)’.[3] By determination dated 11 September 2017, the Respondent amended the classification of the Applicant’s left finger condition from ‘sprains and strains of finger (left)’ to ‘ulnar collateral ligament strain (left)’.[4]
[2] T4, 7.
[3] T8, 21.
[4] T174, 550.
By determination dated 5 August 2016, the Respondent accepted liability under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (‘SRC Act’) for ‘trigger finger (right)’.[5]
[5] T110, 324.
On 26 October 2016, the Respondent determined under s 16 of the SRC Act that compensation was payable for ‘ultrasound guided cortisone injection right index finger’.[6]
[6] T119, 356.
On 7 September 2017, the Respondent advised the Applicant of its intention to conduct a reconsideration of own motion, regarding the determination dated 5 August 2016 which accepted liability under s 14 of the SRC Act for ‘trigger finger (right)’.[7]
[7] T172, 545-546.
On 28 September 2017, the Respondent conducted a reconsideration of own motion of the determination dated 5 August 2016[8] (’the Reviewable Decision’). The review officer was not satisfied, on the basis of the medical evidence, that the Applicant’s right finger condition had arisen due to overcompensating for his compensable left finger condition. As…

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 Kropp and Comcare (Compensation)

Details

AGLC: Kropp and Comcare (Compensation) [2019] AATA 4078
Case: [2019] AATA 4078
Decision Date: 4 October 2019

CaseChat Overview and Summary

This matter concerned an application by Mr Kropp (the Applicant) against Comcare (the Respondent) regarding a claim for workers' compensation. The Applicant sought compensation for a condition described as "trigger finger (right)", alleging it was an ailment or an aggravation of an ailment contributed to, to a significant degree, by his employment with the Australian Federal Police (AFP). The Administrative Appeals Tribunal (AAT) was required to determine whether the Applicant suffered from the claimed condition and, if so, whether his employment with the AFP significantly contributed to it.

The legal issues before the Tribunal were twofold: first, whether the Applicant currently suffered from the condition of "trigger finger (right)"; and second, if he did, whether this condition was contributed to, to a significant degree, by his employment with the AFP. The Tribunal's role on review was to stand in the shoes of the original decision-maker and make its own determination based on the evidence before it, applying the principles established in cases such as *McDonald v Director-General of Social Security* and *Comcare v Power*.

The Tribunal considered the evidence of the Applicant's extensive duties with the AFP, which involved both office-based work requiring significant computer use and "out of office" activities at various events. It also considered the incident on 20 January 2015 where the Applicant sustained an injury to his left thumb. The Tribunal noted that while a temporal connection between employment and an ailment could be inferred, expert medical opinion was required to establish a causal relationship. The Tribunal found that the Respondent had not discharged its practical onus to persuade the Tribunal that there was no liability for the claimed condition.

Consequently, the Tribunal determined that the Reviewable Decision, which had denied liability, was made in error. The Tribunal set aside the Reviewable Decision and substituted it with a determination accepting liability under section 14 of the *Safety, Rehabilitation and Compensation Act 1988* (Cth), reinstating the original determination made on 5 August 2016.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The issues for determination are as follows:(a)Does the Applicant currently suffer from the claimed condition of ‘trigger finger (right)’?(b)If so, was the Applicant’s claimed condition contributed to, to a significant degree, by the Applicant’s employment with the AFP?EVIDENCE BEFORE THE TRIBUNALApplicant’s employment with the AFP Prior to the incident on 20 January 2015, the Applicant had been working in the AFP’s Emergency Management and Planning ('EM&P') division for nearly five years as a specialist planner. EM&P was responsible for managing ACT Policing's response to "Planned" events, as well as ensuring it is prepared for the larger scale "Emergency" incidents. In most cases, the members of EM&P became the Police Incident management team for all these events/incidents.[11] [11] Exhibit A3, [3]-[4]. The Applicant’s work time was almost evenly split between "in office" based duties and "out of office" duties, with many progressing from the planning of the Police response to an event/incident, to the running of the Police response to an event/incident. His work hours were no less than four, 10 hour days per week whilst planning, but could/would regularly extend to 80+ hour weeks during some of the larger events, as well as having regular 'on call' hours.[12][12] Exhibit A3, [4]. The Applicant’s "in office" based duties included but were not limited to a mix of meetings, discussion groups, and advice sessions with internal and external stake holders. Tasks included but were not limited to report, procedure, and plan writing, legislation and policy preparation and amendment, note and minute taking, as well as event logs at a variety of events and incidents. The majority was all typed within a variety of programs including Microsoft Office as well as AFP software. There was a significant amount of computer based research regarding legislation and policy. A lot of the computer based work relied heavily on multitasking and mouse work.[13][13] Exhibit A3, [5]. The Applicant’s "out of office" activities included being on the ground and physically present at events such as planned incidents and events like 'Skyfire', Canberra Show, 'Summernats', ANZAC Day, sporting events, private community events both large and small scale, as well as government events open to the public and not. These activities also included providing a specialised management response capability to unplanned or unanticipated events and incidents such as protests and demonstrations, larger emergency type incidents such as fires, evacuations, weather events (floods, high winds), health related (extreme heat/cold, contamination), and being prepared for and continually ready to manage an emergency response to more nefarious incidents.[14][14] Exhibit A3, [6].Left thumb injury sustained on 20 January 2015 On Tuesday 20 January 2015, the Applicant was working at Canberra Stadium in Bruce, overseeing an Asian Cup soccer match. Towards the end of the match, a male pitch invader entered the playing field and appeared to be heading towards the officials’ box which included a number of international dignitaries. The Applicant saw the need to intervene. He grabbed hold of the invader whilst other officers came to assist. In the course of his struggle with the invader, the Applicant’s left thumb was hyperextended. He felt a sharp initial pain which subsided, although his lower wrist and thumb became quite swollen. He saw the on-site paramedics who told him to put some ice on it and be seen at the first available time at a hospital emergency department. Treatment for left hand injury

Decision

Reasons for decision

Accordingly, the Reviewable Decision was made in error and should be set aside and substituted for the determination made on 5 August 2016 accepting liability under s 14 of the SRC Act.DECISION The Reviewable Decision is set aside and the original determination dated 5 August 2016 is reinstated.

Ratio Decidendi

Legal Principle Established

Dr Le Leu inferred that there had been a causal relationship between the disease and employment simply because of the temporal connection between the two. He was unable to say when the point was reached that the Applicant had exceeded the residual capacity he had in his right hand.CONSIDERATION AND REASONS The Tribunal has considered the parties’ submissions, the evidence of the witnesses at the hearing, and all the documentary material before it. The Tribunal is satisfied that the parties had an adequate opportunity to be heard by the Tribunal. The Tribunal’s role on review is established by s 43 of the Administrative Appeals Tribunal Act 1975 (Cth) (‘the AAT Act’) which provides that the Tribunal “may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision”. As Woodwood J explained in McDonald v Director-General of Social Security (1984) 1 FCR 354 at 357 (‘McDonald’), the Tribunal is effectively required by s 43 of the AAT Act to put itself in the position of the decision-maker and, based on the material before it, make its own decision.   As Katzmann J explained in Comcare v Power [2015] FCA 1502 (‘Power’), to speak in terms of a party bearing an onus of proof (whether legal or evidential) in proceedings before the Tribunal is apt to mislead. After referring to McDonald and noting that it was common ground that the Act did not provide for an evidential onus, Her Honour stated at [63]:Here, as Comcare acknowledged in argument, the decision the Tribunal was reviewing was whether or not to terminate Ms Power’s compensation entitlements arising from the compensable injury in light of changed circumstances. It was not reviewing a decision based on fresh evidence as to whether compensation should ever have been awarded. In a case such as this, as Woodward J explained in McDonald at 359, having considered all the available evidence, if the Tribunal was left in a state of indecision, it should have been resolved in the claimant’s favour. Her Honour later observed at [70]:Nonetheless, I accept that it is reasonable to say, as a practical matter, that Comcare would have to persuade the Tribunal of the circumstances which justify a finding that compensation payments should no longer be made. The statement the Tribunal made in the present case that Comcare did not discharge its onus should be taken to mean that the Tribunal was not persuaded that Ms Power was no longer suffering from the effects of the compensable injury. Accordingly, although there is no legal or evidentiary onus, ‘as a practical matter’ the Respondent must persuade the Tribunal of the circumstances that justify a finding that there is no liability for the claimed condition. Whereas Power concerned a no present liability determination for ss 16 and 19 entitlements rather than a retrospective denial of liability, the Tribunal finds that the same approach is applicable in these circumstances and the Respondent must persuade the Tribunal that there is no liability under s 14.Medical experts