Munguia and Comcare - [2000] AATA 62

DECISION AND REASONS FOR DECISION [2000] AATA 62

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1998/55

GENERAL ADMINISTRATIVE DIVISION )

Re Norma MUNGUIA
Applicant

And COMCARE AUSTRALIA
Respondent

DECISION

Tribunal Mrs M T Lewis, Senior Member Dr J Vallentine, Member

Date3 February 2000
PlaceSydney

Decision The Tribunal affirms the decision under review.

..............................................
M T Lewis,
Presiding Member
CATCHWORDS
COMPENSATION - cessation of liability - pre-existing condition in neck and left forearm – whether disc rupture - whether permanent or temporary aggravation of cervical spondylosis - whether these conditions were work-related
Safety Rehabilitation and Compensation Act 1988 - s4
Health Insurance Commisssion v Van Reesch (1996) 45 ALD 302
Treloar v Australian Telecommunications Commission (1990) 26 FCR 316

REASONS FOR DECISION

3 February 2000 Mrs M T Lewis, Senior Member Dr J Vallentine, Member

This is an application for review lodged by Norma Munguia ("the Applicant') in respect of a reconsideration decision made by a delegate of Comcare Australia ("the Respondent") dated 12 May 1997. That decision affirmed an earlier determination of the Respondent dated 13 March 1997 ceasing liability to pay compensation in respect of cervical disc lesion and overuse injury to the left forearm, on and from 1 March 1997. Subsequently the Applicant lodged a claim in respect of permanent impairment, but as she was not ready to proceed with that claim at the time of the hearing it was agreed that she would pursue that separately.
The issue before the Tribunal in these proceedings is whether on and from 1 March 1997 the Applicant continues to suffer from a work-related condition in her neck and left forearm, and if so whether that condition incapacitated her for work for specified periods since 1 March 1997. The Tribunal was advised that the Applicant had the following days or periods off work due to neck, shoulder and arm pain, for which she claimed incapacity payments –
4 March 1997
23 October 1997
29 June 1998
21 June 1998 to 22 July 1998
11 August 1998
7 September 1998
5 November 1998 to 11 November 1998
17 November 1998 to 4 December 1998
10 December 1998 to 14 December 1998

Also at issue was whether the Applicant needed ongoing medical treatment for the claimed condition.

The Tribunal had before it the documents provided by the Respondent pursuant to s 37 of the Administrative Appeals Tribunal Act 1975. The following documents were tendered on behalf of the Applicant –

Reports of Dr M. Giblin, orthopaedic surgeon, dated 9 November 1998 and 30 June 1998 (exhibit A);
Report of Dr T. Steel, neurological and spinal surgeon, dated 2 June 1998 (exhibit B);
Report of Dr N.W.C Dorsch, neurosurgeon, dated 31 January 1991 (exhibit C);
Report of Dr J. Williams, general practitioner, dated 4 February 1999 (exhibit D);
Report of Dr A. Sacks, radiologist, dated 18 November 1998 (exhibit E).

The following documents were tendered on behalf of the Respondent –

Report of Dr A. Innes-Brown, orthopaedic surgeon, dated 15 June 1998 (exhibit…

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.

Keep reading for free

Create a free CaseChat account to read Munguia and Comcare and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2000] AATA 62
Decision Date: 3 February 2000

CaseChat Overview and Summary

In the case of Munguia and Comcare, the Applicant was seeking compensation for a cessation of liability under the Safety Rehabilitation and Compensation Act 1988. The Applicant claimed she suffered from a pre-existing condition in her neck and left forearm, including a disc rupture, and sought to establish that these conditions were aggravated by her employment. The Federal Court of Australia was tasked with determining whether the conditions were work-related and whether the Applicant's claims were substantiated.

The central legal issues before the court were whether the Applicant's conditions, specifically the cervical spondylosis and alleged disc rupture, were work-related and whether these conditions constituted a permanent or temporary aggravation. The court needed to weigh the medical evidence provided by the parties, particularly the reports from Dr Dorsch and Dr McGill, and assess the credibility and consistency of the Applicant's evidence.

The court examined the medical reports and testimonies, ultimately finding that the Applicant's cervical spondylosis was a degenerative condition not significantly contributed to by her employment. The court preferred Dr McGill's opinion that the Applicant's pain was derived from fibromyalgia, rather than cervical spondylosis. The court also rejected the claim of a disc rupture, noting that the symptoms did not align with such an injury and that the radiology did not support this claim. The court found that the Applicant had not adequately disclosed her medical history, which affected the reliability of her evidence. The court concluded that while work may have contributed to her pain, it was not established on the balance of probabilities that the conditions were work-related.

The court ordered that the Applicant's claims for compensation were not substantiated, and the application for cessation of liability was dismissed. The court's decision was based on the lack of sufficient evidence to support the Applicant's claims of work-related injuries and the inconsistencies in her testimony.

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

It was submitted that Dr Dorsch, neurosurgeon, reported on 31 January 1991 (exhibit C) that the Applicant complained of pain down her right arm since May 1990. However, the Respondent noted there was no disclosure to Dr Dorsch of the Applicant's complaints in the early 1980's and in 1989. Dr Dorsch noted cervical spondylosis and a mild prolapse of the C5/6 disc, which he considered did not appear to be near enough to the exit foramen to be causing any significant compression of the C6 nerve root. He did not provide an opinion as to the cause of the Applicant's neck pathology, her capacity for work or her use of physiotherapy.consideration of evidence and findings of fact The Applicant, at the age of 49 years, suffers from cervical spondylosis, which the Tribunal finds to be a degenerative condition that has been in existence at least from the time of an X-ray on 17 December 1990 (T8). There is no history of trauma to the cervical spine, and on the evidence of Dr Innes-Brown the Tribunal finds the Applicant's cervical spondylosis has arisen as a result of a constitutional degenerative process without any permanent contribution from her employment. However, on the evidence of Dr McGill, which the Tribunal prefers, we find that the Applicant's pain derives from fibromyalgia. The report of Dr McGill provides an holistic opinion about the wide range of the Applicant's symptoms, including their anatomical and non-anatomical origins. The Tribunal finds that while the Applicant has cervical spondylosis, the referred pain is not of an anatomical distribution and the cervical spondylosis is not the cause of most of her pain. While it is possible that work has contributed to her pain, on the evidence of Dr McGill the Tribunal is not satisfied on the balance of probabilities that this is so. The Tribunal rejects the Applicant's submission that the Applicant suffered a rupture to her C5/6 disc in 1990 arising from her employment. On the basis of the contemporaneous evidence in Dr Williams' clinical notes, the Tribunal is reasonably satisfied that the Applicant did not suffer a disc rupture during the course of her work, or indeed at all. There was a gradual rather than sudden onset of her symptoms at that time, which was not consistent with a disc rupture. The Tribunal notes Dr Innes-Brown's evidence that the radiology as a whole needs to be considered, and overall the radiology does not support the existence of a disc rupture. The Tribunal is concerned about the Applicant's failure to disclose the history of her previous compensable repetitive strain injury to the doctors examining her in relation to these proceedings, and of her failure to provide information either to her own solicitor or to the Respondent about her previous treating doctors. The Tribunal does not accept that she withheld that history because she was "intimidated or nervous". The Tribunal is also concerned about inconsistencies in the Applicant's evidence. The Tribunal finds that much of her evidence is a reconstruction of the facts, whether consciously or unconsciously, to aid her case. Notwithstanding the fact that the Applicant apparently withheld the evidence about the 1980 episode of repetitive strain injury, the Tribunal finds she had recovered from that condition by the time she commenced employment with the Department of Defence. Her evidence on this point, that her symptoms in 1990 were different from those in 1980, is accepted by the Tribunal.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.