MacRae and Australian Capital Territory (Compensation) - [2023] AATA 1386

MacRae and Australian Capital Territory (Compensation) [2023] AATA 1386 (24 May 2023)
ReviewNumber: 2019/3908, 2022/1309
Division:GENERAL DIVISION
File Numbers: 2019/3908 and 2022/1309
Re:Jade MacRae
APPLICANT

AndAustralian Capital Territory
RESPONDENT

DECISION
Tribunal:Senior Member C. J. Furnell
Date:24 May 2023
Place:Melbourne

Each decision the subject of review is set aside, and, in substitution, the Tribunal decides that the respondent is not presently liable to compensate the applicant in respect of the injury she suffered on 13 January 2018 and was not so presently liable at any time in the period after 13 June 2018 to the date of this decision.
........................[SGD]...............................................
Senior Member C. J. Furnell
Catchwords
COMPENSATION – Australian Capital Territory employee – psychiatric nurse – shoulder injury at work – denial of present liability to pay compensation – determination reconsidered of respondent’s own motion – respondent denied present liability for any time after a certain date – held that respondent cannot effectively decide it will never have future present liability to compensate applicant – whether effects of injury continuing – whether left shoulder superior labral tear encapsulated within accepted condition – burden of persuasion – where applicant had previously injured left shoulder –Tribunal does not conclude that left shoulder superior labral tear resulted from injury regarding which liability was accepted – found that effects of injury did not continue after a certain date and are not continuing at time of decision – held that respondent not liable in the period after certain date to the date of decision – decisions set aside and substituted
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Cases
Beezley v Repatriation Commission (2015) 150 ALD 11
BOY19 v Minister for Immigration and Border Protection [2019] FCA 574
Brice and Comcare (Compensation) [2018] AATA 3463
Bureau of Meteorology and Comcare and Anor [2015] AATA 267
Comcare v Lofts [2013] FCA 1197
Comcare v Power [2015] FCA 1502
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
Fuad and Telstra Corp Ltd (2004) 39 AAR 496
Hurley and Australian Capital Territory [2019] AATA 2450
Irwin v Military Rehabilitation and Compensation Commission [2009] FCAFC 33
Kennedy v Comcare [2014] FCA 82
Lees v Comcare [1999] FCA 753
Liu and Comcare [2004] AATA 617
McDonald v Director-General of Social Security (1984) 1 FCR 354
Millar and Comcare (Compensation) [2019] AATA 4973
Neuendorf and Australian Postal Corporation (Compensation) [2019] AATA 2430
Poignand and Comcare (Compensation) [2019] AATA 2706
Priestly and Comcare (Compensation) [2019] AATA 5456
Shearing and Director-General of Social Security [1983] AATA 116
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
Toomey and Secretary, Department of Education, Employment and Workplace Relations [2009] AATA 468
Transcon Holding Pty Ltd v Aged Care Quality and Safety Commissioner [2023] FCAFC 60
REASONS FOR DECISION
Senior Member C. J. Furnell
24 May 2023

The applicant applied to the Tribunal for review of two decisions concerning her entitlement to compensation under the Safety, Rehabilitation and…

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.

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Details

Case: [2023] AATA 1386
Decision Date: 24 May 2023

CaseChat Overview and Summary

This matter concerned an appeal by an Australian Capital Territory employee, Ms. MacRae, against a decision by the respondent denying present liability to pay compensation for a shoulder injury sustained at work on 13 January 2018. The respondent had reconsidered its determination of liability and concluded it was not liable for any period after a specified date. The appeal was heard by C. J. Furnell SM.

The primary legal issues before the Tribunal were whether the respondent could validly deny all future present liability to compensate the applicant, whether the effects of the applicant's injury were continuing, and specifically, whether a superior labral tear of the left shoulder was encapsulated within the accepted condition. The Tribunal also considered the burden of persuasion regarding the continuing effects of the injury, particularly in light of a previous injury to the applicant's left shoulder.

The Tribunal reasoned that the respondent could not unilaterally decide it would never have future present liability to compensate the applicant. However, after considering the medical evidence, including the opinion that a superior labral tear was not a result of the accepted injury and that other potential soft tissue injuries or aggravations would likely resolve within months with conservative treatment, the Tribunal was not satisfied that the applicant continued to suffer the effects of her January 2018 injury after 13 June 2018, nor that she was currently suffering from those effects. The Tribunal therefore decided that the respondent was not presently liable to compensate the applicant for the injury after 13 June 2018 up to the date of the decision.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

In any event, if, as I have concluded, the SLAP tear ought to be disregarded when considering the effects of the January 2018 injury, the source or at least principal source of Mr Blackmore’s disagreement with Doctors Burke and Haig falls away. Indeed, insofar as the SLAP tear is disregarded and the applicant is considered to have only suffered a soft tissue injury or aggravation of a pre-existing condition as a result of the 13 January 2018 incident, Mr Blackmore’s evidence was, like that of Doctors Burke and Haig, to the effect that it would likely have resolved in a matter of months.[158][158] Mr Blackmore in oral evidence noted that “…if it is just impingement of AC joints that get aggravated, usually they improve with conservative treatment after maybe, you know, three to six months of steroid injections and physiotherapy” and “if the medico and legal doctors were talking only about the AC joint and subacromial changes that we initially thought were the only issues in her shoulder, then I would share that opinion that those types of problems can often settle down after three to six months of conservative treatment.”: Transcript, p.120.Conclusion I am not satisfied that the applicant continued to suffer the effects of her January 2018 injury after 13 June 2018 or that she is currently suffering from those effects. Each decision the subject of review is set aside, and, in substitution, the Tribunal decides that the respondent is not presently liable to compensate the applicant in respect of the injury she suffered on 13 January 2018 and was not so presently liable at any time in the period after 13 June 2018 to the date of this decision.

Ratio Decidendi

Legal Principle Established

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