Maria Roxas and Comcare

Case [2012] AATA 747

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL           )
  )        No: 2011/0630 and
GENERAL ADMINISTRATIVE DIVISION              )              2011/2493

Re: Maria Roxas
Applicant

And: Comcare
Respondent

CORRIGENDUM TO DECISION [2012] AATA 747

TRIBUNAL:             Senior Member J F Toohey

DATE:            11 March 2013

PLACE:                  Sydney

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application as follows:

Where at paragraph 87 the decision currently reads “The Tribunal can make of a claim what it will”, the decision shall now read “The Tribunal cannot make of a claim what it will”.

.....[sgd]..............................................................
Jill Toohey
Senior Member

[2012] AATA 747 

Division GENERAL ADMINISTRATIVE DIVISION

File Number(s)

2011/0630 & 2011/2493

Re

Maria Roxas

APPLICANT

And

Comcare

RESPONDENT

DECISION

Tribunal

Senior Member J F Toohey and Dr S H Toh
Date 30 October 2012
Place Sydney

(i)In Matter No 2011/2493 concerning the applicant’s injury on 8 September 2008, the Tribunal affirms the decision under review;

(ii)In Matter No 2011/0630 concerning the applicant’s injury on 9 August 1999, the matter is adjourned for further medical evidence concerning the degree of her permanent impairment.

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

Senior Member J F Toohey and Dr S H Toh

CATCHWORDS

COMPENSATION – neck and thoracic sprain – liability accepted for incapacity and medical treatment – liability denied for permanent impairment and non-economic loss – aggravation of neck sprain – liability accepted – whether effects of aggravation had ceased – whether Tribunal could consider continuing effects of  original injury – reviewable decision concerned aggravation only  – decision under review affirmed - claim for permanent impairment arising from original injury – liability denied – Tribunal satisfied applicant had permanent impairment - whether permanent impairment could be assessed on Comcare Guide – proper approach where Comcare Guide not applicable – American Medical Association Guides – assessment of chronic pain – matter adjourned for assessment based on clinical judgment

LEGISLATION

Administrative Appeals Tribunal Act 1975 s 43(1)

Safety Rehabilitation and Compensation Act 1988 ss 4, 14, 16 24, 27 and 64

CASES

Abrahams v Comcare (2006) 93 ALD 147

Broadhurst v Comcare [2010] FCA 1034
Comcare  and Broadhurst [2011] FCAFC 39
Ilsley v Wattyl Australia Pty Ltd (1997) 75 FCR 1
Lees v Comcare [1999] FCA 753
Liu and Comcare [2004] AATA 617
Riley and Comcare [2011] AATA 674
Rosillo v Telstra Corporation Limited [2003] FCA 1628
Szabo v Comcare [2012] FCA 28; [2012] FCAFC 129

Telstra Corporation Ltd v Hannaford [2006] FCFCA 87

SECONDARY MATERIALS

American Medical Association, Guides to the Evaluation of Permanent Impairment, 5th ed

Comcare, Guide to the Assessment of the Degree of Permanent Impairment, 2nd ed

REASONS FOR DECISION

Senior Member J F Toohey and Dr S H Toh

30 October 2012

BACKGROUND

  1. Maria Roxas was working as a customs officer at Sydney International Airport in August 1999 when a hatch door fell on her head. She was off work for most of the following three months before making a graduated return to…

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Details
AGLC
Maria Roxas and Comcare [2012] AATA 747
Case
[2012] AATA 747
Decision Date

CaseChat Overview and Summary

Maria Roxas and Comcare is a case where the parties are Ms Roxas and Comcare. Ms Roxas had a neck and thoracic sprain, and Comcare accepted liability for her incapacity and medical treatment. However, Comcare denied liability for her permanent impairment and non-economic loss. The case revolves around the legal issues of whether the effects of the aggravation of her neck sprain had ceased, whether the Tribunal could consider the continuing effects of her original injury, and whether the Tribunal could assess her permanent impairment based on the Comcare Guide. The court was required to determine if the Tribunal could consider the continuing effects of the original injury and if the Tribunal could assess her permanent impairment based on the Comcare Guide.

The court found that the Tribunal's jurisdiction is limited by the decision under review, and it could only review reviewable decisions. In this case, the Tribunal was satisfied that Ms Roxas had permanent impairment, but it could not assess it based on the Comcare Guide. Instead, the court held that the proper approach was to use the American Medical Association Guides for assessment of chronic pain. The matter was adjourned for assessment based on clinical judgment.

The court affirmed the decision under review and denied liability for permanent impairment arising from the original injury. The court held that the Tribunal could not consider whether an employer is liable for an injury not presently claimed for. The case highlights the importance of considering the proper approach in assessing permanent impairment and the limitations of the Tribunal's jurisdiction in reviewing decisions. The court's decision ensures that the Tribunal follows the correct legal framework in making its determinations.

In conclusion, the court affirmed the decision under review and denied liability for permanent impairment arising from the original injury. The matter was adjourned for assessment based on clinical judgment. The court's decision ensures that the Tribunal follows the correct legal framework in making its determinations and highlights the importance of considering the proper approach in assessing permanent impairment. The court's decision is a reminder of the limitations of the Tribunal's jurisdiction in reviewing decisions.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Ms Roxas appears to have had some physiotherapy since the 2008 injury but her treatment has consisted mainly of osteotherapy, which comprises back and neck massage and some manipulation, once a fortnight or once a month, depending on how she feels. The treatment relieves the pain for “a good few days” before she has to take Panadol Osteo tablets. She does not have more regular treatment on account of the cost. She takes 100mg of Norflex, a muscle relaxant, each day; if she does not take it, her pain gets worse. She also takes three to four Panadol Osteo tablets. THE MEDICAL EVIDENCE The doctors’ findings on clinical examination of Ms Roxas’ neck have been generally unremarkable. They have shown little, if any, restriction of movement. However, while there are differences of opinion as to how quickly after each aggravation her neck pain should have settled, there is overwhelming agreement that she genuinely suffers from chronic neck pain dating from 1999. Other than Dr Rhys Gray, who saw her for the respondent in 2010, and who thought she exhibited overreaction in her response to normal clinical palpitation of the cervical spine and thought there appeared to be “non-organic factors” at play, there is no suggestion, even from those who can find no explanation for her continuing pain, that Ms Roxas is fabricating or exaggerating her symptoms. X-rays of Ms Roxas’ cervical spine on 1 September 1999 showed slipping of C3 on C4, and C4 on C5, and suggested trauma to the C3/4 intervertebral disc and associated ligaments. A CT scan on 6 September 1999 showed no evidence of disc herniation or other abnormality. An MRI scan on 22 September 1999 showed mild scoliotic deformity and evidence of disc dehydration from C2/3 to C5/6 but no other disc abnormality. Dr Loefler, the spinal surgeon to whom Dr Wilcox referred Ms Roxas in September 1999, reported that her history and examination were “suggestive of a cervical disc lesion” and the x-rays suggested pathology at C3/4. He suggested an MRI be done. On review in June 2005, he reported that he had seen a CT scan taken in February 2005 which showed no disc lesion or cervical pathology. He thought Ms Roxas’ ongoing neck pain was most likely related to minor degeneration in the mid cervical area and she might also have musculoligamentous symptoms. Dr Billet, the orthopaedic surgeon who examined Ms Roxas for the respondent in December 2000, reported that he had viewed the x-ray, CT scan and MRI taken in 1999. He thought she had suffered a soft tissue injury in 1999 that aggravated underlying pre-existing degenerative changes, making them symptomatic. Dr S Watson, a neurologist to whom Dr Wilcox referred Ms Roxas in December 2000, reported that the CT scan of her cervical spine was normal; plain x-ray suggested “some instability at the C3/4, but MRI scan showed only mild kyphosis in the upper cervical spine, without any significant disc or neural problems”. Dr Kong saw Ms Roxas in September 2004. He noted the radiological investigations referred to in Dr Billett’s report but did not specifically comment on the role of any pre-existing degenerative changes. He thought Ms Roxas suffered from “chronic musculoligamentous strain of her neck with associated neck pain” from the 1999 and 2001 incidents.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

It is further contended that the statutory scheme requires the respondent to engage in “progressive and evolving decision-making” as described by the Full Federal Court in Telstra Corporation Ltd v Hannaford [2006] FCFCA 87. Consideration The Tribunal’s jurisdiction is limited by the decision under review. In Lees (above) the Court said the Tribunal’s powers under s 43(1) of the Administrative Appeals Tribunal Act 1975 are not at large; it is authorised by s 64 of the SRC Act to review only reviewable decisions, being second-tier or reconsideration decisions made under s 62 of the SRC Act. The question of Ms Lees’ permanent impairment had not been determined at the first-tier decision-making stage and, necessarily, there had been no reconsideration under s 62 of the SRC Act. Consequently, there was no reviewable decision to found an application to the AAT under s 64 of the SRC Act. In Szabo (above), the applicant suffered a minor aggravation in 1989 of a 1985 injury. Liability was accepted and subsequent favourable determination made until 2008 when it was determined that the effects of the 1989 injury had ceased. The Tribunal had to consider whether, on its proper construction, Mr Szabo’s claim was a “nature and conditions” claim. If so, it was contended, injuries before and after 1989 should have been considered by the Tribunal in order to determine the scope of the claim. The Tribunal found that no such claim had been made. It found that the effects of the 1989 injury had ceased, and that the continuing cause of Mr Szabo’s pain was the 1985 injury for which he had been compensated. The Federal Court, and more recently the Full Court, upheld the Tribunal’s decision, that, by 2008, Mr Szabo no longer suffered the effects of the 1989 aggravation of his pre-existing lower back degenerative disease, and the pain he suffered was the result of his significant injury in 1985 for which he had been compensated. The Court agreed that, properly understood, the claim was for a specific injury, the effects of which had ceased; it did not extend beyond that, and previous and subsequent events and injuries were not relevant to the Tribunal’s consideration of the reviewable decision. In Ilsley (above), the applicant’s incapacity arose while he was employed by different employers. On appeal from the ACT Supreme Court, the Federal Court considered the meaning of “results from” in the equivalent of s 14 of the SRC Act and whether the applicant’s incapacity arose from an injury in the context of “a causal chain” of multiple and cumulative injuries. It held that his later injury was the “immediate and proximate cause” of his total incapacity but the injuries suffered in the course of his earlier employment were the “operative and effective causes of his total incapacity” in that they materially contributed to the condition which was subsequently aggravated. That is not the same as saying that, on a review, the Tribunal can consider whether an employer is liable for an injury not presently claimed for.