Neville and Comcare (Compensation) - [2018] AATA 3738

Neville and Comcare (Compensation) [2018] AATA 3738 (5 October 2018)
Division:GENERAL DIVISION
File Number(s): 2017/5055
Re:Stephen Neville
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Senior Member D. J. Morris
Date:5 October 2018
Place:Hobart

The reviewable decision dated 23 June 2017 is affirmed.
.................................[sgd]................................
Senior Member D. J. Morris
CATCHWORDS
WORKERS’ COMPENSATION – claim for ‘repetitive strain injury’ – whether Applicant has suffered injury – no confirmed diagnosis – section 5B of Act not satisfied – therefore section 14 of Act not satisfied – not necessary to consider causation – no compensable condition – decision affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth), s 37
Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 4, 5A, 5B, 14
CASES
Lim v Comcare [2016] FCA 709; (2016) 69 AAR 420
Vo and Comcare [2005] AATA 753
REASONS FOR DECISION
Senior Member D. J. Morris
5 October 2018
BACKGROUND

Mr Stephen Neville has brought to the Tribunal an application to review a decision made by Comcare (the Respondent) on 23 June 2017 and affirmed by a reconsideration decision on 14 August 2017 denying liability in relation to a claim, made by Mr Neville under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (the Act) for an injury, namely: “non-specific forearm discomfort (NSFP).”
A hearing was held on 6 and 7 August 2018. Mr Neville represented himself, made submissions, gave evidence and was cross-examined. Mr Craig Hobbs, of counsel, represented the Respondent, instructed by Mr Andrew Vas. The other witnesses called were medical practitioners who had examined Mr Neville and provided reports: Dr David Cooke, Dr Michael Lucas and Dr Barry Gilbert, and Mr Marcus Burton, Mr Neville’s treating exercise physiologist. At the conclusion of the hearing, the Respondent tendered written closing arguments, so the Tribunal gave leave to the parties to provide written closing submissions, which they did. The Respondent tendered documents lodged with the Tribunal under section 37 of the Administrative Appeals Tribunal Act 1975 (T-documents and supplementary T-documents).
The following exhibits were also tendered:
·Statement of Mr Neville dated 10 May 2018 (A1);
·Email from Mr Neville dated 24 October 2017 with a list of treating medical practitioners (A2);
·ipar Worksite Ergonomic Assessment Report dated 31 March 2016 (A3);
·Medical certificate of Dr Cooke, date of examination 9 March 2017 (A4);
·Medical certificate of Dr Cooke, dated 9 March 2017 (A5);
·Medical certificate of Dr Cooke, dated 10 April 2017 (A6);
·Comcare Workers’ Compensation Claim Form submitted 15 May 2017 (A7);
·Medical report of Dr Lucas, dated 30 May 2017 (A8);
·Recommendation letter from Allianz Insurance to the Department of Human Services (DHS) dated 21 June 2017 (A9);
·Determination by a Delegate of the Chief Executive Officer of Comcare dated 23 June 2017 (A10);
·Letter dated 23 June 2017 to Mr Neville from Allianz Insurance (A11);
·Medical certificate of Dr Elizabeth Lord, dated 27 June 2017 (A12);
·Reconsideration Request from Mr Neville to Comcare, dated 10 July 2017 (A13);
·Recommendation to Affirm Determination…

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 Neville and Comcare (Compensation)

Details

AGLC: Neville and Comcare (Compensation) [2018] AATA 3738
Case: [2018] AATA 3738
Decision Date: 5 October 2018

CaseChat Overview and Summary

This matter concerned an appeal by Mr. Neville against a decision by Comcare regarding his claim for compensation for a repetitive strain injury. The Administrative Appeals Tribunal (AAT) was required to determine whether Mr. Neville had suffered an "injury" as defined by the relevant Act.

The primary legal issue before the Tribunal was whether Mr. Neville had established that he suffered from a compensable injury. This involved considering whether he had a diagnosed medical condition and, if so, whether that condition constituted an "injury" under the Act, and whether it was contributed to by his employment. The Tribunal also had to consider the threshold for establishing an injury, particularly in the absence of a confirmed diagnosis or pathology.

The Tribunal reasoned that to establish a compensable injury, more than a mere assertion of feeling unwell or experiencing discomfort was required. Applying the principles from cases such as *Lim v Comcare* and *Comcare v Mooi*, the Tribunal held that the claimant must demonstrate the existence of a "disease" or "illness" that is either the injury itself or results from the injury. In Mr. Neville's case, the Tribunal found that, based on the weight of the medical evidence, there was an absence of pathology and no confirmed medical diagnosis. Consequently, the Tribunal concluded that an "injury" within the meaning of the Act had not been established.

The Tribunal affirmed the reviewable decision made by Comcare.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Mr Hobbs referred the Tribunal to the decision in Vo and Comcare [2005] AATA 773 where Senior Member Constance (as he then was) and Member Miller considered the question as to whether Mr Vo had suffered an injury within the meaning of section 14 of the Act:52. Mr Vo contends that he suffers from a disease, namely an aggravation of an ailment (as defined in section 4 of the Act) which was contributed to in a material degree by his employment. We have also given consideration as to whether Mr Vo suffers from an ailment which is itself compensable, as distinct from an aggravation.53 Having found that Mr Vo has "an underlying intensely obsessional personality structure" and "paranoid traits" we must consider whether this condition is a "disease" as defined. There are 2 steps for the determination of this question – is the condition suffered by Mr Vo an ailment and if it is, was the ailment contributed to in a material degree by his employment? 54. The definition of "ailment" is very broad but we are not satisfied that Mr Vo’s personality structure and paranoid traits are properly characterised as a mental ailment, disorder, defect or morbid condition. The terms "ailment" and "morbid condition" both connote a condition of disease in their ordinary meanings apart from their use as part of the definition of "disease" in the Act. In context the words "disorder" and "defect" should be interpreted accordingly. The definition of "ailment" in section 4 is somewhat circular as it includes the word "ailment" within its own definition. The Macquarie Dictionary (Revised Third Edition) definition of "ailment" includes "a morbid affection of the body or mind" and "morbid" includes "affected by, proceeding from, or characteristic of disease."55. The fact that Mr Vo’s personality is such that he experiences difficulties in situations in which others may not does not make his condition an ailment. Both Dr Skinner and Dr Saboisky are of the opinion that Mr Vo did not suffer from a psychiatric illness following his retrenchment and we have accepted their evidence in this regard. Their views are supported by Ms Hutchinson and Ms Bell. 56. As we are not satisfied that Mr Vo suffers from an "ailment" it follows that it is not necessary to consider whether there has been an aggravation of an ailment or the degree of contribution by his employment. 57. We have found that Mr Vo did suffer some stress from various incidents which occurred in his workplace. However, as was stated by the Federal Court in Comcare v Mooi (1996) 42 ALD 495 at 501:".......the need to show something more than the development of a work-caused condition of the body or mind and associated impairment of capacity to work has been an essential requirement since the inception of the legislation: work-caused physical or mental fatigue that impairs an employee’s capacity to work is no more compensible (sic) than debilitating work-caused distress, unless that distress amounts to or results in a condition of disease or illness." As we have not been satisfied on the evidence that the stress suffered by Mr Vo (being stress which was contributed to by his employment) resulted in any disease or illness, this stress does not amount to an "injury" within the meaning of the Act and is not compensable. Even if the stress had resulted in an injury, any stress arising from the decision to terminate Mr Vo’s employment in accordance with its terms was not contributed to by that employment: Australian Industry Development Corporation v Boyd (1990) 95 ALR 149 at 171.Mr Hobbs said that the pain and the discomfort which the Respondent accepts Mr Neville may be experiencing, while possibly but not necessarily symptoms of a medical condition, do not amount to an “injury” within the meaning of the Act and are not compensable. Citing the Federal Court decision of Flick J in Lim v Comcare [2016] FCA 709 at [41]: “…more is needed than a mere assertion that a claimant ‘feels unwell’. The fact of ‘injury’ must be made out.” Mr Hobbs submitted that in this matter, given the absence of pathology and the absence of a medical diagnosis, an “injury” to Mr Neville has not been established.Evidence of Dr David Cooke

Decision

Reasons for decision

The inevitable conclusion of the Tribunal based on the weight of medical evidence before it and applying the requirements of the Act, is that the reviewable decision in relation to this claim was the correct decision.DECISION The reviewable decision dated 23 June 2017 is affirmed.

Ratio Decidendi

Legal Principle Established

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