Kumatia and Comcare (Compensation) - [2018] AATA 1505

Kumatia and Comcare (Compensation) [2018] AATA 1505 (1 June 2018)
Division:GENERAL DIVISION
File Number(s): 2017/0856
Re:Christiana Kumatia
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Mr S. Webb, Member
Date:1 June 2018
Place:Canberra

The decision under review is set aside and in place thereof the Tribunal decides that as of 9 August 2016 Ms Kumatia had a low back injury in respect of which she is entitled to compensation under s 14 of the Safety, Rehabilitation and Compensation Act 1988.
Determination of her entitlements to compensation under s 16 of the Act is remitted to Comcare.
........................[sgd]................................................
Mr S. Webb, Member
COMPENSATION – accepted left ankle ‘injury’ – fall at work - fractured fibula – use of crutches – altered gait - subsequent onset of low back and radicular symptoms - claim for treatment of low back symptoms – threshold liability rejected – meaning of ‘injury’ - jurisdiction to determine compensation in respect of medical treatment - pre-existing degenerative changes in lumbar spine – conflicting medical theories and evidence – balance of probabilities test – examination of facts – altered gait contributed to onset of low back and right lower limb symptoms – degree of contribution - employment contribution was significant – decision set aside
Safety, Rehabilitation and Compensation Act 1988, s 4, 5A, 5B, 14, 16, 62, 64, 67
Comcare v Muir [2016] FCA 346
Fuad and Telstra Corporation Limited [2004] AATA 1182
REASONS FOR DECISION
Mr S. Webb, Member
1 June 2018

In the course of her duties as a phlebotomist, Christiana Kumatia slipped and fell, fracturing her distal left fibula. She claimed and was paid compensation. Some weeks later, she experienced the onset of low back pain and pain radiating down her right leg. Her treating doctor sought Comcare’s approval of medical treatment for these symptoms, but the claim was rejected. This decision was reconsidered and affirmed by Comcare. Ms Kumatia applied for review.
Factual Background
On 20 June 2016, Ms Kumatia attended a client. On leaving, she descended some steps onto wet grass. She slipped and fell, twisting to the left and landing awkwardly. She fell heavily on her left hip and twisted her left ankle.
She experienced pain in her lower left leg.
She attended the Canberra Hospital Emergency Department. She did not experience or complain of low back pain at this time.[1]
[1] Exhibit 3.
A fracture of the left distal fibula was diagnosed and a back slab cast was applied, immobilising her left ankle.
She used crutches to perambulate. Doing so, she did not experience or complain of low back pain.
On 27 June 2016, she lodged a claim for compensation in respect of the fractured fibula.[2] Comcare accepted liability for “fracture – fibula (left)” on 14 July 2016.[3]
[2] T5.
[3] T6.
Two weeks after the initial injury, she returned to the Hospital fracture clinic. The cast on her left leg was replaced.
This cast remained in place until 29 July 2016, when it was removed. At that…

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 Kumatia and Comcare (Compensation)

Details

AGLC: Kumatia and Comcare (Compensation) [2018] AATA 1505
Case: [2018] AATA 1505
Decision Date: 1 June 2018

CaseChat Overview and Summary

This matter concerned an appeal by Christiana Kumatia against a decision by Comcare to reject her claim for medical treatment expenses related to low back pain and radiating leg pain. Ms Kumatia, a phlebotomist, had previously suffered a fractured left distal fibula after slipping and falling on wet grass during the course of her duties. While Comcare accepted liability for the fracture, it rejected her subsequent claim for treatment of the back and leg symptoms, a decision that was affirmed on reconsideration. The Administrative Appeals Tribunal was tasked with reviewing Comcare's decision.

The primary legal issue before the Tribunal was whether Ms Kumatia's low back pain and radiating leg pain constituted an injury for which she was entitled to compensation under the *Safety, Rehabilitation and Compensation Act 1988* (Cth). This required the Tribunal to determine the causal connection, if any, between her accepted workplace injury (the fractured fibula) and the subsequent onset of her back and leg symptoms, and to assess the credibility of her evidence regarding the timing and nature of these symptoms.

The Tribunal found Ms Kumatia to be an uncertain witness, noting inconsistencies in her evidence, particularly concerning when her back pain first manifested. However, the Tribunal preferred the evidence of Dr Pillemer, an orthopaedic surgeon, who concluded that Ms Kumatia's altered gait, resulting from her accepted lower limb injury, significantly contributed to her low back ailment. The Tribunal was reasonably satisfied that Ms Kumatia had sustained a low back injury as of 9 August 2016, in respect of which she was entitled to compensation under section 14 of the Act.

The Tribunal set aside Comcare's decision under review. It determined that Ms Kumatia was entitled to compensation for her low back injury. However, the determination of her entitlement to compensation for medical treatment expenses under section 16 of the Act was remitted back to Comcare for determination. The parties were invited to make submissions on costs.

Orders

Orders of the court

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Background

Background to the litigation

In the course of her duties as a phlebotomist, Christiana Kumatia slipped and fell, fracturing her distal left fibula. She claimed and was paid compensation. Some weeks later, she experienced the onset of low back pain and pain radiating down her right leg. Her treating doctor sought Comcare’s approval of medical treatment for these symptoms, but the claim was rejected. This decision was reconsidered and affirmed by Comcare. Ms Kumatia applied for review.Factual Background On 20 June 2016, Ms Kumatia attended a client. On leaving, she descended some steps onto wet grass. She slipped and fell, twisting to the left and landing awkwardly. She fell heavily on her left hip and twisted her left ankle. She experienced pain in her lower left leg. She attended the Canberra Hospital Emergency Department. She did not experience or complain of low back pain at this time.[1][1] Exhibit 3. A fracture of the left distal fibula was diagnosed and a back slab cast was applied, immobilising her left ankle. She used crutches to perambulate. Doing so, she did not experience or complain of low back pain. On 27 June 2016, she lodged a claim for compensation in respect of the fractured fibula.[2] Comcare accepted liability for “fracture – fibula (left)” on 14 July 2016.[3][2] T5.[3] T6. Two weeks after the initial injury, she returned to the Hospital fracture clinic. The cast on her left leg was replaced. This cast remained in place until 29 July 2016, when it was removed. At that time, her left ankle was swollen, stiff and sore. She used crutches to exit the Hospital fracture clinic. At home later that day she walked leaning on walls without crutches, but experienced pain weight bearing on her left leg. She walked with a limp. The next day, her left ankle was swollen, stiff and sore and she experienced pain when weight-bearing. Nevertheless, she ceased using crutches. Soon thereafter she was able to drive an automatic car and subsequently attempted to return to work, performing modified suitable duties. Her evidence about experiencing back pain at this time is confused. Well before the hearing, she informed doctors who took a history from her that she experienced low back pain two weeks after the cast was removed and she ceased using crutches. She has given a statement in these terms.[4] The medical reports of Dr Ow-Yang (Ms Kumatia’s treating neurosurgeon), Dr Low (a consultant occupational physician), Dr Stubbs and Dr Pillemer (consultant orthopaedic surgeons), are consistent with this account. In her oral evidence at hearing, however, Ms Kumatia initially asserted that she experienced low back pain when her cast was removed and she ceased using crutches. When closely examined on this point, she asserted that she experienced low back pain some time later and it was sufficient for her to first report this on 9 August 2016.[4] Exhibit 9. At this point I should say that I found Ms Kumatia to be an uncertain witness. It appeared to me that she had some difficulty following what was being put to her and her evidence was, in parts, inconsistent. This notwithstanding, I do not propose to disregard her evidence as entirely unreliable, although some caution is necessary when considering her evidence on key points in the absence of corroboration.

Evidence

Evidence Before The Court

As will appear, in the result, I prefer the evidence of Dr Pillemer to that of Dr Stubbs and Dr Low, and I am reasonably satisfied that Ms Kumatia’s altered gait consequent to her accepted left lower limb injury significantly contributed to her low back ailment.MEDICAL EVIDENCE Symptoms and clinical findings Dr Low examined Ms Kumatia on 8 November 2016 and reported –“Ms Kumatia reported ongoing pain residing in her lumbar spine radiating down the posterior aspect of her right lower limb to the level of her mid calf. She stated that the pain can increase to 9/10 and is exacerbated through activity such as prolonged standing or walking. She stated her pain is most relieved by lying in a supine position.”[30][30] T37 folio 115. Dr Stubbs examined Ms Kumatia on 23 May 2017. He reported –“Close questioning shows that the pain spread from the thoracoculumbar junction through to the lumbrosacral region and spreads into the buttocks and down the backs of both thighs. In the backs of the thighs, it then sweeps onto the inside of the calf and the inside border of the foot. Right is equal to left, and that has not improved. The distribution of the pain is low back, buttock and back of thigh, typical of low back pain without identifiable cause. She describes this as leg pain (really meaning lower limb) but any pain beyond the knee, (leg rather than thigh) is minor.”[31][31] Exhibit 7, page 3. Dr Pillemer examined Ms Kumatia on 22 June 2017, one month later, and reported –“… her main concern at the present time is severe pain in her low back radiating down her right lower limb and into her right foot particularly into the big toe region… Back and leg symptoms are described as being constantly present and ranging between 7-9/10.Symptoms are aggravated by sitting for any length of time, by bending or lifting or cleaning or pushing and she avoids bending activities.She does get a lot of relief by simply lying down and also by walking carefully and taking her tablets [Tramadol and Celebrex]…” As can be seen, there is some consistency in the report of symptoms complained of by Ms Kumatia in the reports of Dr Low and Dr Pillemer. It is difficult to know what to make of Dr Stubbs’ report of Ms Kumatia’s account of equally distributed bilateral lower limb pain symptoms and his comment that ‘distribution of the pain is low back, buttock and back of thigh, typical of low back pain without identifiable cause’. On this report of symptoms, Dr Stubbs is alone. Dr Stubbs reported that Ms Kumatia was “inconsistent” during the examination. When asked to explain this observation, he gave evidence that aspects of the examination were inconsistent with his experience and his expectations, in respect of M Kumatia rising from the examination couch by rolling in one direction but not another for example. He was careful to explain that he did not consider that Ms Kumatia was malingering or untruthful about her symptoms, although he explained that she was anxious during the examination. It is quite clear that Dr Stubbs formed the opinion that Ms Kumatia’s pain had a behavioural component, whereas Dr Low reported “no abnormal pain behaviour”[32] and Dr Pillemer reported that he “found Ms Kumatia to be a very straight forward person with objective clinical signs”.[33] I note that Ms Douglas found no psychosocial risk factors in Ms Kumatia’s complaints of pain. [32] T37 folio 116.[33] Exhibit 6 page 2.

Decision

Reasons for decision

As I have said, Ms Kumatia’s entitlement to compensation under s 16 of the Act in respect of medical treatment expenses specified by Dr Ow-Yang will be remitted to Comcare for determination.Decision The decision under review is set aside and in place thereof the Tribunal decides that as of 9 August 2016 Ms Kumatia had a low back injury in respect of which she is entitled to compensation under s 14 of the Act. Determination of Ms Kumatia’s entitlement of compensation for medical treatment expenses under s 16 is remitted to Comcare. The parties have not been heard on the issue of costs under s 67 of the Act. Written submissions addressing this point may be made within 14 days. If no submissions are received by the Tribunal, Comcare will be ordered to pay Ms Kumatia’s reasonable costs of these proceedings as agreed or taxed.

Ratio Decidendi

Legal Principle Established

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