Miles and Comcare (Compensation) - [2018] AATA 349

Miles and Comcare (Compensation) [2018] AATA 349 (26 February 2018)
Division:GENERAL DIVISION
File Number: 2016/3465
Re:Wanda Miles
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Miss E A Shanahan, Member
Date:26 February 2018
Place:Melbourne

The Tribunal affirms the decision under review.
..[sgd]......................................................................
Miss E A Shanahan, Member
WORKERS COMPENSATION – motor vehicle accident – soft tissue injuries – dental damage claimed – subsequent development of post-traumatic stress disorder – denial of liability for injury to the teeth or bruxism secondary to PTSD as specified – decision affirmed
Legislation
Safety, Rehabilitation and Compensation Act 1988
Cases
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Australian Competition and Consumer Commission v Maritime Union of Australia (2001) 114 FCR 472
Re Manns and Comcare [2012] AATA 462
Re Stacey and Comcare [2015] AATA 386
Re HSDR and Comcare [2017] AATA 779
Frosch v Comcare (2004) FCA 1642
REASONS FOR DECISION
Miss E A Shanahan, Member
26 February 2018

On 8 September 2006, Ms Miles was injured in a motor vehicle accident (MVA). She had left work at the Australian Taxation Office (ATO) in the Melbourne CBD, at 3.30pm and was walking to Parliament Station to catch her train home, when she was struck by a Land Rover. While there have been differing descriptions of the MVA the medical records state that she suffered soft tissue injuries to the right side of the body, involving her elbow, shoulder, knee and back. She also had a scalp haematoma. Ms Miles believed she lost consciousness for a short period of time. According to her statements and evidence, the driver of the Land Rover did not offer any assistance but a passenger in this vehicle checked that she was not seriously injured. Several passers-by assisted her and she declined their offer to call an ambulance and caught the train to her home in Brighton.
On 8 September 2006, she saw her general practitioner Dr Demediuk who is also her next door neighbour. He felt she had not sustained any major physical injuries and was suffering from shock. The following day she saw a general practitioner in a St Kilda clinic and was referred to the Alfred Hospital for assessment. She was admitted to the Alfred Hospital for observation and investigation given the history of loss of consciousness. On 15 September 2006 an incapacity for work certificate was issued by a resident medical officer at the Alfred Hospital describing her injuries as a scalp haematoma, right supraspinatus tendon tear and post-traumatic stress disorder.
Ms Miles’ injuries as described above were accepted by Comcare as being work related.
As further symptoms emerged liability was also accepted for a neck sprain, injury to the right ulnar nerve and in May 2010, by consent, for the condition of unilateral left brow ptosis (AAT Application 2008/4071).
While at no time was liability accepted for any injury to Ms Miles’ teeth, determinations were made by Comcare to pay for dental treatment for set periods of time in 2007,…

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 Miles and Comcare (Compensation)

Details

AGLC: Miles and Comcare (Compensation) [2018] AATA 349
Case: [2018] AATA 349
Decision Date: 26 February 2018

CaseChat Overview and Summary

This matter came before the Administrative Appeals Tribunal concerning a claim by Ms Miles against Comcare. Ms Miles sought compensation for injuries allegedly sustained in a motor vehicle accident on 8 September 2006. The dispute centred on the nature and cause of her injuries, particularly dental issues, and whether they were attributable to the accident for which Comcare was liable.

The Tribunal was required to determine the extent to which Ms Miles's injuries, including dental problems and aphasia, were a consequence of the motor vehicle accident. This involved assessing conflicting evidence regarding the accident itself, the mechanism of injury, and the subsequent medical treatment and diagnoses. The Tribunal also had to consider the impact of Ms Miles's pre-existing conditions and subsequent medical events, such as a cerebral malignancy, on her ability to recall the accident and her subsequent symptoms.

The Tribunal found that Ms Miles's poor recall of the motor vehicle accident and subsequent events was substantially contributed to by a cerebral malignancy diagnosed in 2011, for which she underwent significant medical treatment. Consequently, the Tribunal placed limited reliance on Ms Miles's detailed account of the accident as presented in a later statement. Instead, the Tribunal relied on an earlier, witnessed statement made by Ms Miles on 24 September 2006, which provided a more consistent account of the immediate aftermath of the accident. The Tribunal noted that Ms Miles had provided varying reports of the accident's details over a decade.

The Tribunal determined that Ms Miles's claim for dental treatment for seven nominated teeth was not established as arising from the motor vehicle accident. The Tribunal also noted the significant delay in Ms Miles lodging a complaint with AHPRA, which occurred after Comcare had made its reviewable decision denying liability for the dental treatment.

Orders

Orders of the court

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Background

Background to the litigation

Ms Miles, Dr Eugene Nelson and Dr PJKI gave evidence in person with Dr Andrew Howe giving concurrent evidence with Dr Nelson by telephone. Dr PJKI who treated Ms Miles for some 12 years was assigned a pseudonym after the completion of the hearing (s 35 Confidentiality Order) given the content of some of the evidence. BACKGROUND TO THE APPLICATION Ms Miles was born and educated in the Ukraine, and obtained her first Bachelor’s Degree, said to be the equivalent of an Australian qualification in speech pathology, in her country of birth. At the age of 24 she migrated to the United Kingdom and at the age of 26, she and her husband migrated to Australia. She is now aged 52. She has two children, a son aged 30 and a daughter aged 20. Her marriage ended in an acrimonious divorce in 2014. She commenced working with the Department of Defence in approximately late 1990 and ceased in 2003. She transferred to the Canberra office believing that she had received a promotion. Once there she claims she was harassed by co-workers and had not been appointed to the role in accordance with the advertised position. She lodged an application with the Administrative Appeals Tribunal in 2003 claiming workplace harassment but it was determined to be reasonable administrative action and her claim failed. She joined the Australian Taxation Office (ATO) as an investigator in 2004. Throughout this period she has undertaken further study and has obtained a Master of Business Administration and a Master of System Engineering. She was undertaking a Doctorate of Philosophy in Enterprise Systems while working full time as an investigator at an Executive Officer Level 1, (EO1). It is noted that the ATO records state that she was a general clerk. In 2003, Ms Miles was assessed by Dr Yvonne Greenberg, psychiatrist, at the request of the Department of Defence. Ms Miles had been diagnosed by a Dr Goloub as suffering from an acute anxiety disorder and post-traumatic stress disorder (PTSD) as a result of the harassment to which she was subjected while working in Canberra. Dr Greenberg made a diagnosis of an adjustment disorder and found that Ms Miles, while preoccupied with the injustice or perceived injustice of her workplace treatment, did not have sufficient symptoms to support a diagnosis of PTSD. Dr Greenberg was of the opinion that the prognosis was good. Ms Miles claims to have recovered from this episode in three or four months and was fully recovered by the time she commenced work at the ATO. As outlined previously, on 8 September 2006 Mrs Miles was involved in a MVA. She was on her way to catch her train home having completed work at 15.30 and was crossing Spring Street in the city of Melbourne, walking toward Parliament Station. She was hit by a Land Rover and the exact mechanism of the collision is in conflict. There are several different reports recorded in late 2006. In her evidence before the Tribunal Ms Miles claimed that she was hit by the Land Rover and catapulted over the vehicle landing on the other side of the road between two cars. There are other reports that she was hit on her right side by the Land Rover’s left-sided mirror and a third report stating she was dragged along the road when her handbag was caught in the wheel of the Land Rover. There is also conflicting evidence as to whether someone stopped, there being reports that the Land Rover drove on, another report that the Land Rover stopped, the driver peered at Ms Miles and then returned to his vehicle and drove off and a third report that a passenger got out and spoke with her.

Evidence

Evidence Before The Court

From early 2006 she has consulted Dr Nick Demeduik as her general practitioner and his records have been provided covering the period from March 2006 to the present. It is possible that Dr Demeduik saw and treated her at an earlier date as he is her next door neighbour.EVIDENCE BEFORE THE TRIBUNALMs Miles The Tribunal had been informed prior to Ms Miles commencing her evidence that she suffered from occasional episodes of aphasia when she could not speak at all and that she had difficulties in reading. The Tribunal took note of these complaints although the hemianopia from which she suffers and as described by Mr McMahon, her treating neurosurgeon, should not affect central vision and the aphasia according to her psychiatrist is possibly a conversion disorder. Ms Miles’ evidence has been summarised under the BACKGROUND TO THE APPLICATION. Not surprisingly she had poor recall of the events of 2006 and her inpatient treatment at the Alfred Hospital and Cedar Court. She could recall the sensation of having sand in her mouth and the difficulty she experienced in cleaning her teeth because she was wearing a neck brace in the form of a Philadelphia Collar. She described to the best of her memory the sequence of dental events with Dr Razbash diagnosing a temporomandibular joint disorder and then performing several crown replacements which according to Ms Miles increased her jaw pain. Ms Miles remembered being referred to Dr Besley who prescribed an occlusal splint, followed by treatment by Dr Vijay John who removed two teeth. Dr Besley then inserted four crowns and performed implants replacing those done by Dr Razbash in 2007. Years later Dr Nelson had performed a gingival graft and removed tooth 17. The bulk of Ms Miles’ dental treatment was performed in 2013 by Dr Fast. In retrospect Ms Miles felt it would have been better if she had had all her teeth removed and replaced with dentures, however she was never given that choice. In cross-examination Mr Woulfe presented Ms Miles’ claim form for PTSD lodged in 2003. Ms Miles agreed that was the diagnosis, that she required the attention of a psychiatrist but denied that she had felt stressed. She said she recovered from that episode within a few months describing herself as a resilient individual who accepted adverse events and got on with her normal life. It was pointed out that in the month after the MVA and in various consultations with Dr Demeduik and other medical practitioners there had been no mention of direct trauma to her face nor did she complain of pain in her teeth. In response she said the pain was in her jaw not her teeth. Similarly, there was no mention of facial trauma in the claim form she completed on 25 September 2006. She first mentioned jaw pain to Dr Demeduik on 7 December 2006 and told him that this had resulted from bone radio-necrosis due to her exposure in the Chernobyl reactor accident. Ms Miles could not recall that the first time she mentioned direct trauma to her teeth was when she saw Dr Razbash on 18 December 2006. Ms Miles said it was Dr Razbash who had told her that she was grinding her teeth and she had conveyed this to Dr Demeduik when she saw him on 21 January 2007.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Mr Woulfe drew the Tribunal’s attention to the fact that Ms Miles did not lodge her complaint with AHPRA until November 2016, despite her claim that the events on which her complaint was based occurred prior to 2006. She appeared to have delayed until after Comcare made its reviewable decision denying liability for the dental treatment of the seven nominated teeth. TRIBUNAL’S DELIBERATIONS AND DECISION It is clear from the content of Ms Miles evidence that the development of the cerebral malignancy in 2011 following which she underwent craniotomy, post-surgical radiotherapy and chemotherapy had substantially contributed to her poor recall of the MVA of 8 September 2006 and subsequent events. The Tribunal has determined not to place major reliance on the mechanism of the accident as described in Ms Miles’ statement of evidence dated 17 July 2017. She has given varying reports of the actual details of the MVA over the past 10 years. The Tribunal relies on Ms Miles’ statement of 24 September 2006, appropriately witnessed by a Mr Michael Bourchier, signed by Ms Miles and himself and later certified as a true copy by Vesna Brozinic on 18 October 2006. Ms Miles stated:On Friday 8th September 2006, I left work at exactly 3.30pm. I work at Casselton Place, 2 Lonsdale Street, Melbourne. I was going to catch the 3.38pm train to Richmond. I crossed over Lonsdale Street at the corner of Spring Street. After I crossed over, I was attempting to cross Spring Street to Parliament Station. There were two cars that were stationary waiting to turn left into Lonsdale Street from Spring St. One of the cars was about half a body length into Lonsdale St. The crossing was clear though, I walked out between the two cars. The crossing lights were orange. I stepped out... She saw what she described as a golden metallic coloured four wheel drive coming up Spring Street towards Lonsdale Street. She estimated that the driver was advancing at high speed, she was hit by the car and blacked out. She states when she came to she was lying on the road on her left side. She recalled seeing a car wheel, a stationary vehicle and objects of hers on the ground. These were her watch and her ID pass. Someone helped her up and she sat on the steps of the Price Waterhouse Coopers building in Spring Street. A small crowd collected around her, she was approached by someone described as an older man with a broad Australian accent who said, Don’t be scared of me, I was just a passenger in the car. Ms Miles said she assumed that he had been a passenger in the four-wheel drive. Ms Miles rejected the offers of pedestrians to call for an ambulance as she was keen to get home as soon as possible. Her 10 year old daughter was home alone, there having being problems with the routine pickup of her daughter from school. Ms Miles recovered sufficiently to cross the road to the station and board the train. She believes she blacked out or fell asleep on the train and recalled being woken by another passenger shaking her and asking which station was her destination. She got off at the station in Gardenvale and walked to her home.