Linardi and Comcare (Compensation) - [2018] AATA 4252

Linardi and Comcare (Compensation) [2018] AATA 4252 (14 November 2018)
Division:GENERAL DIVISION
File Number(s): 2016/7033
Re:Miriam Linardi
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Ms S Taglieri SC, Member & Dr R Walters, Member
Date:14 November 2018
Place:Hobart

The decision under review is set aside and a decision made in substitution as follows:
·the Applicant suffered a chondral injury to the medial femoral condyle of the left knee on 9 May 1997 for the purposes of the Safety, Rehabilitation and Compensation Act 1988 (the Act) which resulted in an osteochondral defect to the left knee from which she continues to suffer (the compensable injury);
·the compensable injury no longer causes incapacity for work so the Applicant does not have entitlement to compensation under s 20 of the Act; and
·the compensable injury requires reasonable medical treatment and the Applicant has entitlement to payment of medical expenses pursuant to s 16 of the Act according to the findings referred to in this decision.

...............................[sgd].....................................
Ms S Taglieri SC, Member
CATCHWORDS
COMPENSATION – liability for previously accepted injury – entitlement to medical expenses and incapacity payments – nature of original compensable injury – whether effects of compensable injury are continuing – whether incapacity and treatment results from the compensable injury – chondral injury to the medial femoral condyle – decision under review set aside and substituted
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 16, 20
CASES
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
Hart v Comcare [2005] FCAFC 16; (2005) 145 FCR 29
Ilsley v Wattyl Australia Pty Ltd (1997) 75 FCR 1
Manns v Comcare [2012] AATA 462
March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506
REASONS FOR DECISION
Ms S Taglieri SC, Member & Dr R Walters, Member
14 November 2018
INTRODUCTION AND BACKGROUND

Over several dates in March, April, June and July, the Tribunal conducted a hearing in respect of Ms Linardi’s application for review.
The Applicant filed an application with the Tribunal on 22 December 2016 seeking a review of the Respondent’s determination of 17 November 2016 (the reviewable decision), the effect of which was that the Applicant was no longer entitled to compensation pursuant to ss 16 and 20 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act).
The background to the review was that in August 1997 the Applicant had claimed compensation for a left knee injury that occurred on 9 May 1997 (the left knee injury). That claim was accepted by the Respondent who made various payments of compensation under the Act for the left knee injury but also for injuries that were accepted to be consequential secondary injuries or effects resulting from the left knee injury.
It was common ground between the parties, and documents received in evidence established, that the Respondent had made payments of compensation in respect of the left knee injury, as well as injury/disease or symptoms involving the Applicant’s…

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 Linardi and Comcare (Compensation)

Details

AGLC: Linardi and Comcare (Compensation) [2018] AATA 4252
Case: [2018] AATA 4252
Decision Date: 14 November 2018

CaseChat Overview and Summary

This matter concerned an appeal by the applicant, Ms Linardi, against a decision by Comcare to cease making payments for medical expenses and incapacity payments. The dispute centred on whether Ms Linardi's ongoing symptoms, including spinal and psychological conditions, and her resulting incapacity for work, were a consequence of a compensable left knee injury sustained on 9 May 1997. The Administrative Appeals Tribunal (AAT) was tasked with determining the nature of the original injury, its effects, and whether these continued to prevail at the time Comcare made its decision.

The Tribunal was required to determine three key issues: first, the precise nature of the injury suffered by the applicant on 9 May 1997; second, the effects that flowed from that injury; and third, whether the injury or its effects were still present and causing incapacity or requiring treatment after the date of Comcare's reviewable decision. The Tribunal considered extensive documentary evidence and the applicant's oral evidence, noting that while the applicant genuinely attempted to recall events, her evidence was at times unreliable, generalised, and contradictory when tested against contemporaneous records.

The Tribunal found that Comcare had accepted liability for a left knee injury on 9 May 1997, specifically a chondral injury to the medial femoral condyle resulting in an osteochondral defect. However, the Tribunal concluded, on the balance of probabilities, that the applicant's subsequent lumbar and cervical spine symptoms, right knee issues, and a depressive disorder were not a consequence of this compensable left knee injury. While acknowledging that a total knee replacement would likely be required in the future due to the original injury, the Tribunal found that the applicant's incapacity for work since 2000 was more likely attributable to a myriad of other physical and psychological symptoms, rather than the effects of the compensable injury. The Tribunal was not persuaded by the expert evidence suggesting ongoing incapacity for work directly resulting from the compensable injury.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

As it was the Applicant’s contention that the Respondent had previously accepted that the lumbar and cervical spine injuries/diseases or symptoms, a depressive disorder and right knee symptoms all resulted from the left knee injury, the primary task of the Tribunal is to make findings of fact and law in relation to:(a)what injury was suffered on 9 May 1997; (b)what the effects of that injury were; and(c)whether the injury or effects in (a) or (b) still prevailed when the Respondent determined that it was no longer required to make payments under ss 16 and 20 of the Act.EVIDENCE BEFORE THE TRIBUNAL AND FINDINGS Each of the parties relied on extensive documentary materials at the hearing. The Tribunal received many documents into evidence as exhibits and for ease of reference the exhibit list is annexed to this decision to identify the documents considered by the Tribunal (Annexure A). The Applicant gave oral evidence before the Tribunal and was cross-examined at length. Making allowances for the quality of evidence that can be reasonably expected from an honest person after the passage of decades between original injury and a hearing, the Tribunal formed a view of the Applicant and her evidence as follows:·the Applicant tried genuinely to recall matters of fact and events in the past;·the Applicant’s demeanour when giving evidence tended at times to be argumentative. Not infrequently, she made exaggerated statements about facts or events;·the Applicant had a tendency to make generalised statements supporting her case but which, when tested under cross-examination by reference to contemporaneous historical records, were contradictory or less supportive of her case than she originally conveyed; and·while the Tribunal did not find that Applicant to be deliberately misleading, it found her evidence to be, at times, unreliable and lacking persuasiveness. The findings at [15] about the nature and quality of the Applicant’s evidence has affected the reliability of the expert opinions she relied upon, insofar as those opinions depended on the history the Applicant gave the medical experts. The Applicant gave evidence that she had suffered a left knee injury at work on 9 May 1997 when she had run to answer a phone. She stated that the injury was a serious one and required surgery in July 1997 but that the left knee never fully recovered. The Applicant had multiple treatments, further surgery and had been left with weakness, locking or giving way in the left knee over subsequent years. As a consequence, she claimed that she also had injured her lumbar and cervical spine and right knee. In respect of her spinal symptoms, the Applicant’s evidence in summary was that she had not had any troubling back or neck pain prior to a fall during April 2009 in Perth, Western Australia, when she fell due to her left knee giving way.[5][5] Transcript, 26 March 2018, p 41, lines 33-43. There was evidence that after 9 May 1997, the Applicant had consulted general practitioners and managed her left knee conservatively until sometime in July 1997 when she consulted with Mr Howard Bye, a now deceased orthopaedic surgeon. In a report dated 6 March 1998, which was in evidence before the Tribunal, Mr Bye had stated:Mrs Linardi stated that she twisted her left knee when at work on the 9th May 1997. She stated she was running to answer the phone when she twisted her left knee and it collapsed. She had extreme pain and swelling in her left knee, particularly on the medial aspect of that joint. She was able to cope and get around reasonably well in spite of the discomfort and found that she could just cope. However several weeks later, when she was squatting down to a CD music player, she felt a tearing sensation in the medial aspect of that left knee. Since that time she had feelings of insecurity, catching and giving way, though no true locking.[6][6] Exhibit R1, T6, p 14.

Decision

Reasons for decision

The cause of the Applicant’s psychiatric disorder is more probably due to the many non-employment related stressors referred to above rather than chronic pain from the left knee injury. Although Dr Weidmann and Dr White appeared to be in agreement that the Applicant’s psychological symptoms were productive of incapacity for work to varying extents, because it prefers the views of Dr White the Tribunal is satisfied that such incapacity is not the result of the left knee injury.DID THE COMPENSABLE INJURY AND ITS EFFECTS CONTINUE AFTER THE REVIEWABLE DECISION? The Tribunal is satisfied to the requisite degree[35] that the Respondent accepted liability for a left knee injury suffered on 9 May 1997, which consisted of a chondral injury to the medial femoral condyle of the left knee which resulted in an osteochondral defect also (the compensable injury).[35] See Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 which has been followed in many Tribunal cases, such as Manns v Comcare [2012] AATA 462. The injuries/diseases or symptoms the Applicant has experienced relating to her lumbar spine, cervical spine, right knee and the psychiatric disorder or psychological symptoms from which she has suffered since the date of the reviewable decision are not a consequence or result of the compensable injury. It follows from the conclusions above that the Tribunal needs to address whether the Applicant remained incapacitated by the compensable injury and its effects.[36] Also whether she required treatment for it after the reviewable decision.[36] As required by s 20 of the Act. The consensus of the orthopaedic evidence was that the Applicant will require total knee replacement at some time in the future due to the compensable injury. It appears that the precise timeframe for the surgery is uncertain and that it should be postponed as long as symptoms are tolerated. The Tribunal can only comment that when an orthopaedic surgeon such as Mr Harvey forms the view that it is reasonable to proceed with the surgery, the Respondent should reasonably pay for it. In the interim, simple analgesia and anti-inflammatories, but not physiotherapy, are required. Although the evidence, on the balance of probabilities, demonstrated that the Applicant had undertaken little work after 2000,[37] her incapacity has more likely been related to the myriad of physical and psychological symptoms she has experienced since, rather than the effects of the compensable injury. The Tribunal is reinforced in this conclusion by the views of Mr Haig,[38] the effect of which was that the compensable injury did not preclude the Applicant from undertaking sedentary employment.[37] See, eg, Transcript, 26 March 2018, p 46; Exhibit A6; and Exhibit R1, pp 68, 167.[38] Transcript, 5 June 2018, pp 409-410. The only expert evidence adduced on behalf of the Applicant about continuing incapacity for work was that of Dr Jackson and Dr Sharman. For the reasons already expressed, the Tribunal rejected the views of Dr Jackson. Insofar as the question of incapacity for work was addressed by Dr Sharman, it has failed to persuade the Tribunal that the Applicant’s compensable injury continues to cause incapacity for work. Dr Sharman globally addressed the Applicant’s likely incapacity for work, taking into account all claimed injuries and effects of the left knee injury.

Ratio Decidendi

Legal Principle Established

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