Maffescioni and Comcare (Compensation)

[2017] AATA 21

Maffescioni and Comcare (Compensation) [2017] AATA 21 (13 January 2017)

Division:GENERAL DIVISION

File Number:           2015/6508

Re:Gary Maffescioni

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Dr Damien Cremean, Senior Member

Date:13 January 2017

Place:Melbourne

The Tribunal affirms the decision under review.

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

Dr Damien Cremean, Senior Member

COMPENSATION - elbow injury 1994 - pain reaction - depression - whether entitled to compensation in respect of medical expenses or household services and attendant care services - Applicant calling no evidence – adverse inference – decision affirmed

Legislation

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 16, 29

Cases

Jones v Dunkel (1959) 101 CLR 298

REASONS FOR DECISION

Dr Damien Cremean

13 January 2017

Introduction

1. This is an application by the Applicant, Mr Maffescioni, to review a decision made on 31 August 2015 which determined that he had no entitlements to medical treatment or household services and attendant care services payments under sections 16 and 29 of the Safety, Rehabilitation and Compensation Act1988 (“the Act”) for “right elbow epicondylitis and consequent development of moderately severe reactive depression and lateral epicondylitis (left)” (“injury”) suffered by him on 25 January 1994.

2. This decision was reconsidered but affirmed by a review officer on 27 November 2015 ("reviewable decision”).

3. Dr Sally Carter of the Lancefield Medical Centre made an application to the Tribunal on behalf of Mr Maffescioni dated 8 December 2015 requesting a review of the reviewable decision.

4. There is some confusion in that regard because the application refers to a determination made on 1 December 2015 as the decision to be reviewed. Yet no determination made on that date exists in this matter. However, the terms of a letter from the same medical practitioner dated 9 September 2015 which requests reconsideration of the determination of 31 August 2015 supports the Applicant’s application to have reviewed the decision of 27 November 2015 which reconsidered that determination and affirmed it. Nothing was made of this at the hearing and I proceed accordingly.

5. That hearing took place on 12 December 2016. The Applicant represented himself on the telephone and the Respondent was legally represented by Mr Peter Lehmann in person.

6. Neither the Applicant nor the Respondent called any witnesses at the hearing.

7. In fact the hearing took an odd turn when the Applicant declined to give any oral evidence at all on the ground he could incriminate himself. I say more about that below.

8. In consequence the hearing in effect was heard on the papers with some additional points made concerning some medical evidence.

   Background

9. The Applicant commenced employment with Trans Australia Airlines (TAA) in about 1968 when he was aged about 22 years. TAA became part of Qantas.

10. Mr Maffescioni was employed as an Aircraft Maintenance Engineer performing mainly mechanical duties.

11. On or about 25 January 1994 he struck his right elbow on a nose landing gear door striking the outer side of his right elbow.

12. He continued to work although in pain and only saw his local doctor on 26 April 1994. He received an injection of cortisone with treatment repeated twice more over the next few months.

13. The pain however continued and he saw a specialist in June 1995 and was operated on but it was not successful in terms of relieving his pain.

14. Following this the Applicant returned to work with Qantas on reduced duties. He regarded this as a demotion and claims then to have developed a secondary psychological condition.

15. In 1996 Dr Paul Carter recommended to him that he retire due to psychological ill-health.

16. He later appears to have acted on this advice and duly retired from Qantas on 11 November 1996 - over 20 years ago now.

17. In a medical report dated 27 August 1999 Dr Carter says that Mr Maffescioni has developed depression and anxiety as a direct result of his chronic pain and inability to work as an aircraft mechanic. Before this time Dr Littlejohn in a report dated 13 December 1996 had supported a diagnosis in the Applicant’s case of fibromyalgia.

18. Later and on 28 April 2011 the Applicant was awarded 10% whole person impairment for psychiatric illness and as a result received benefits of $34,434.81.

19. On 22 May 2014, the Applicant was accepted as being entitled under section 29 of the Act to gardening/woodcutting services (four hours per fortnight, up to and including 13 May 2015) and window and gutter cleaning (four hours biannually, up to and including 13 May 2015).

20. Dr T Kostos, Consultant Rheumatologist, in a report dated 24 June 2015 stated that he was not convinced that the Applicant had any ongoing evidence of lateral epicondylitis on either arm.

21. On 13 July 2015 the Respondent issued the Applicant with a notice of intention to determine that the Applicant had no longer any present entitlement to compensation under the Act for medical treatment under section 16 or household services and attendant care services under section 29 for his injury.

22. A delegate of the Respondent on 31 August 2015 then made a determination which meant the Applicant’s entitlements ceased under sections 16 and 19 of the Act for his injury. This determination was then reconsidered and affirmed on 27 November 2015 by another delegate of the Respondent.

23. Subsequently a report by Dr K Fraser rheumatologist dated 1 April 2016 was prepared which was to the same effect as the report of Dr Kostos.

24. A further report dated 18 July 2016 from Associate Professor Mendelson, Consultant Psychiatrist, said that in his view the Applicant’s anger towards Qantas has contributed to the perpetuation of his pain complaints and has tended to amplify [his] experience of pain.

25. There is a medical record on file dated 19 February 2016 from the Royal Melbourne Hospital indicating that Mr Maffescioni had injured his finger quite seriously after his right hand caught in a lathe. It notes as other significant comorbidities – depression and fibromyalgia.

    Issues

26. In such circumstances the question is whether the reviewable decision is one which should be affirmed, varied, or set aside in light of the evidence.

27. The Respondent seeks an order that the reviewable decision be affirmed on the ground that as from 31 August 2015 (the date of the determination) Mr Maffescioni has not suffered from any compensable injury and is no longer entitled to compensation under sections 16 and 29 of the Act.

28. I can assume that the Applicant opposes the Respondent in these matters. But I did not hear him say this directly.

    Consideration

29. It is difficult to form a view that the reviewable decision should be varied or set aside when I have no oral evidence from the Applicant on which to base my opinion.

30. I did not enquire why it was that Mr Maffescioni said if he gave evidence he could incriminate himself. I assume from what he said that he has formed this view in relation to oral evidence which would be given in this proceeding.

31. The Tribunal is entitled in such circumstances to view the application brought by him or on his behalf unfavourably. In reality there is no evidence given by him for the Tribunal to consider. But in him having declined to give any evidence on the ground specified, adverse inferences may rightly arise. See Jones v Dunkel (1959) 101 CLR 298.

32. There is I note a letter from Dr Sally Carter dated 9 September 2015 (referred to above) which is supportive of him, together with another letter from her dated 23 September 2015,  but Dr Carter has not given oral evidence or been tested in cross-examination.

33. Her views must be weighed up against those of Drs Kostos and Fraser and of Associate Professor Mendelson.

34. Going by their views – which I have considered in detail but which have not been tested either - Mr Maffescioni no longer suffers any compensable condition giving rise to entitlements under the Act.

35. I note too that the injury is one which took place now nearly 23 years ago and its effects based on that consideration are likely to have diminished over time although, of course, that is not necessarily the case.

36. Having regard to that factor, and considering also the Applicant’s failure to give evidence or to call any evidence, the Tribunal is satisfied that there is no ground on which to justify ordering that the reviewable decision be varied or set aside. This result is conformable with the views of Drs Kostos and Fraser and Associate Professor Mendelson but is at variance with the views of Dr Carter.

37. In the circumstances, the correct or preferable course is for the Tribunal to affirm the reviewable decision.

    Conclusion

38. The Tribunal affirms the decision under review.

39.      

40.     I certify that the preceding 38 (thirty-eight) paragraphs are a true copy of the reasons for the decision herein of Dr Damien Cremean, Senior Member

..........................[sgd]...............................................

Associate

Dated   13 January 2017

Date of hearing	12 December 2016
Applicant	Attendance by telephone
Solicitors for the Respondent	Lehmann Snell Lawyers, Mr P Lehmann