Mackay and Comcare (Compensation)

Case [2018] AATA 1244

Mackay and Comcare (Compensation) [2018] AATA 1244 (3 May 2018)

Division:GENERAL DIVISION

File Number:           2016/1449

Re:Mr Russell Mackay

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Deputy President J Sosso

Date:3 May 2018

Place:Canberra

The Tribunal:

(a)sets aside the decision under review;

(b)determines that in, substitution, the Applicant has an entitlement to claim compensation for medical treatment under section 16 of the Act and for incapacity under section 19 of the Act for the accepted injury;

(c)remits the Applicant’s claim to the Respondent to calculate and pay compensation to the Applicant in accordance with this decision;

(d)directs that the Applicant is at liberty to apply for costs no later than 30 days from the date of this decision.

........................................................................

Deputy President J Sosso

Catchwords

COMPENSATION – whether medical treatment in relation to the Applicant’s compensable injury – whether medical treatment reasonable for the Applicant to obtain in the circumstances – whether the Applicant is incapacitated for work as a result of a compensable injury – whether the Applicant continues to suffer from the effects of his compensable low back injury of 1995 or whether the Applicant’s injury of 1995 had resolved itself – reviewable decision set aside and substituted.

Legislation

Safety, Rehabilitation and Compensation Act 1988

Cases

Canute v Comcare (2006) 226 CLR 535
Comcare v Martin (2016) 258 CLR 467
D’Amico and Comcare [2018] AATA 54
Howes v Comcare [2016] FCA 1521
Kennon v Spry (2008) 238 CLR 266
Lees v Comcare [1999] FCA 753
Manns and Comcare [2012] AATA 462
Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468
Moon and Telstra Corporation Limited [2006] AATA 996
Pratt and Comcare [2004] AATA 1281

Telstra Corporation Limited v Hannaford (2006) 151 FCR 253

REASONS FOR DECISION

Deputy President J Sosso

3 May 2018

INTRODUCTION

  1. Mr Russell Mackay (the Applicant) seeks a review of a determination of Comcare (the Respondent) of 3 March 2016 (Exhibit 3 T1 pp. 13 – 17) which affirmed an earlier determination of 27 October 2015 (Exhibit 3 T15 pp. 52-54) denying liability to pay medical treatment expenses and incapacity payments. The reviewable decision was determined under ss 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988 (the Act).

  2. The Applicant was employed by ACTEW Corporation from January 1990 until being made redundant in August 2014 - Exhibit 2 paras 2, 35. He was initially employed as a cable laying labourer, which entailed installing cables into new subdivisions and digging up cables for repair – Exhibit 2 para 5. In 1991 he commenced a linesman traineeship on a permanent basis, and this position required physically intensive work, including pushing, pulling and lifting heavy cables – Exhibit 2 paras 6, 7.

  3. In 1995 the Applicant was still working as a linesman. On 27 June 1995, due to inclement weather, the Applicant was indoors at work playing table tennis. At approximately 1:30 pm, when bending over to pick up a table tennis ball, he suffered the onset of pain in…

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AGLC
Mackay and Comcare (Compensation) [2018] AATA 1244
Case
[2018] AATA 1244
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal by Mr. Mackay against a decision by Comcare. The dispute centred on whether Mr. Mackay was entitled to compensation for medical treatment and incapacity for work related to a low back injury sustained in June 1995. The case was heard by Deputy J Sosso P.

The legal issues before the court were whether the medical treatment sought by Mr. Mackay was reasonable in the circumstances, and whether he was incapacitated for work as a result of his compensable injury. Crucially, the court had to determine whether Mr. Mackay continued to suffer from the effects of his 1995 low back injury or if that injury had resolved.

The court considered extensive medical evidence from neurosurgeons and orthopaedic surgeons, as well as reports from various clinics. The respondent, Comcare, contended that the applicant's current condition was due to congenital, lifestyle, and ageing factors, and not the 1995 injury, preferring the evidence of Dr. Khurana. However, the Tribunal found that Mr. Mackay continued to suffer from the effects of his June 1995 injury and required ongoing medical treatment. The Tribunal agreed with submissions that it must consider the nature of the injury and all relevant evidence, including preferring one expert witness's evidence over another, and determine if the accepted injury was a necessary cause of the incapacity for work.

The Tribunal set aside the decision under review and substituted a determination that Mr. Mackay is entitled to claim compensation for medical treatment under section 16 and for incapacity under section 19 of the Act for the accepted injury. The matter was remitted to Comcare to calculate and pay the compensation.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Mr Pattenden and Mr Woulfe agreed on seven questions which were each asked of Dr Sergides and Dr Khurana for the purposes of concurrent evidence:(a) On 27 June 1995, did Mr Mackay suffer an injury?(b) If the answer to Question 1 is “yes”, what injury did Mr Mackay suffer?(c) What are the likely sequelae of that injury?(d) What is the likely duration of any such sequelae?(e) If the answer to Question 1 is “no”, what (if anything) did Mr Mackay experience in the “lunchroom” incident of 27 June 1995?(f) What is the diagnosis of the current condition in the lumbar spine (if any) from which Mr Mackay is suffering?(g) What are the causes of that condition (if any)?MEDICAL EVIDENCE Before turning to the specific medical evidence, it is important to note that while lower back pain is a common condition, its causes are numerous. The term “discogenic pain” means that one or more intervertebral discs are the pain source. Discs are comprised of two parts: the annulus fibrosus (outer ring-like structure) and the nucleus pulposus (gel-like interior). While the nucleus pulposus is devoid of nerves, the outer third of the annulus fibrosus contains nerve fibres. When the annulus fibrosus experiences a tear, normally this results in an irritation of the nerves causing an inflammatory response and pain. A prolapsed (herniated) disc occurs when the annulus fibrosus is injured and the nucleus pulposus bulges out beyond the damaged outer rings. This can result in nerve root compression. A disc protrusion is a condition when the outermost layers of the annulus fibrosus while still intact bulge when the disc is under pressure. In contrast with herniation, none of the central portion escapes beyond the outer layers. Most minor herniations heal within a number of weeks. “Imaging” is a term that comprises a number of different technologies, including X-ray, computed tomography scan (CT or CAT scan) and magnetic resonance imaging (MRI). An MRI performed with high magnetic field strength usually provides the most conclusive evidence for diagnosis of a disc injury. In comparison, an X-ray is limited in its ability to image soft tissues such as discs, muscles and nerves. However, an X-ray can play a role in confirming the suspicion of the presence of a herniated disc. As indicated, the Tribunal had the benefit of listening to the evidence of both Dr Sergides and Dr Khurana, both of whom are Neurosurgeons. The Tribunal was also provided with written reports from both Doctors, as well as two medical reports from Dr Mills, Consultant Orthopaedic Surgeon. Further, the Tribunal was also provided with extensive material from various sources including the Kambah Chiropractic & Natural Health Clinic, Annie Lim Family Practice Pty Ltd, the Sports Medicine Centre and the Kambah Spinal Health Centre. As considerable reliance was placed on the medical opinions of Doctors Sergides, Khurana and Mills, substantial extracts from their reports are set out below.Dr Yanni Sergides

Decision

Reasons for decision

Having carefully considered all of the evidence the Tribunal finds:(a)the Applicant continues to suffer from the effects of his June 1995 injury;(b)the Applicant continues to require medical treatment for the claimed condition; and(c)the Respondent is liable to compensate Applicant pursuant to ss 16 and 19 of the Act.DECISION The Tribunal:(e)sets aside the decision under review;(f)determines that in, substitution, the Applicant has an entitlement to claim compensation for medical treatment under section 16 of the Act and for incapacity under section 19 of the Act for the accepted injury;(g)remits the Applicant’s claim to the Respondent to calculate and pay compensation to the Applicant in accordance with this decision;(h)directs that the Applicant is at liberty to apply for costs no later than 30 days from the date of this decision.

Ratio Decidendi

Legal Principle Established

Mr Woulfe submitted (Comcare’s Outline of Submissions (COS) at para 12), and the Tribunal agrees, that the above cases and statutory provisions require the Tribunal to take into account the following:(a)in deciding, pursuant to s 16, whether the Applicant obtained medical treatment in relation to the accepted lower back injury of 27 June 1995, in the period from that time to the present, the Tribunal must:(i)take into account the nature of the previously accepted lower back injury; and(ii)by reference to all relevant evidence, which permits the Tribunal to prefer the evidence of one expert witness to the evidence provided by another expert witness; and (c)in deciding the claim under s 19, it is necessary for the Tribunal to consider whether the previously accepted injury was an event without which the Applicant would not have suffered incapacity for work in the period from June 1995 to the present.CONSIDERATIONIntroduction The Respondent has not submitted that the Tribunal make findings of fact contrary to those accepted in 1995 which underpinned acceptance of liability pursuant to ss 16 and 19. In short, there is no suggestion that this is a Telstra Corporation Limited v Hannaford (2006) 151 FCR 253 matter.Respondent’s contentions The Respondent submits (COS paras 13 – 14) that the Tribunal should prefer the evidence of Dr Khurana which establishes, it is said, that on the balance of probabilities the Applicant did not obtain medical treatment in relation to, or suffer incapacity for work, as a result of, the previously accepted lower back injury of June 1995. In particular, the Respondent contends that the evidence of Dr Khurana supports the following findings of fact:(a)the current condition suffered by the Applicant is symptomatic multilevel lumbar spondylosis;(b)there is no relationship between that condition and the previously accepted low back injury of June 1995;(c)the Applicant’s current condition is associated with the effects of:(i)congenital factors (such as thoracolumbar scoliosis, and predisposition from Scheuermann’s disease);(ii)acquired/lifestyle factors (smoking, snowboarding, water skiing and collecting firewood);(iii)other physical activities (such as working in other physical jobs); and(iv)natural ageing on the spine. The Respondent, therefore, contends that the Applicant’s current condition is the result of a more recent injury to the lumbar spine, caused by the culmination of constitutional progression of multilevel, multi-regional spondylosis and activities outside of his employment. The Respondent also contends (COS para 15.1 - 15.3) that Dr Khurana’s evidence should be preferred to that of Dr Mills and Dr Sergides, because Dr Khurana’s evidence is supported by:(a)a detailed, thorough and proper consideration of the contemporaneous clinical record of the Applicant’s treating practitioners;(b)the relevant imaging reports; and(c)the inherent likelihood that the Applicant would have claimed compensation for medical treatment and/or incapacity for work much sooner than mid-2015 if he relevantly remained troubled by the previously accepted low back injury.