Nichols and Comcare - [2003] AATA 53

DECISION AND REASONS FOR DECISION [2003] AATA 53

ADMINISTRATIVE APPEALS TRIBUNAL )

) No A2000/353

GENERAL ADMINISTRATIVE DIVISION ) No A2001/374

Re      PETER NICHOLS
  Applicant
           And    COMCARE
  Respondent
DECISION

Tribunal Mr G A Mowbray

Date20 January 2003
PlaceCanberra

Decision      In matter A2000/353 the Tribunal affirms the decision under review of 1 September 2000. In matter A2001/374 the Tribunal sets aside the decision under review of 5 September 2001 and remits the matter to the Respondent for reconsideration with a direction that it determine the Applicant's entitlements under sections 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988 Act on the basis that the Applicant continues to suffer from work related synovitis and a work related aggravation of a Baker's cyst in his right knee. The Tribunal orders the Respondent to pay the Applicant's costs in A2001/374 as agreed or taxed.
  ..............................................
  Member
CATCHWORDS
COMPENSATION - multiple knee injuries – whether current conditions work related – whether permanent impairment due to work related conditions – whether ongoing entitlement to compensation for medical treatment or incapacity for work

Safety, Rehabilitation and Compensation Act 1988 ss 4, 16, 19, 24

Re Carson and Telstra Corporation (2001) 33 AAR 351
Lees v Comcare (1999) 29 AAR 350; 56 ALD 84
Comcare v Nichols [1999] FCA 209
Re Quinn and Australian Postal Corporation (1992) 15 AAR 519
Commonwealth v Borg (1991) 20 AAR 299n
Re Kary and Comcare [1999] AATA 687
Re Hardy and Comcare (1998) 54 ALD 586

REASONS FOR DECISION

20 January 2003 Mr G A Mowbray

This matter concerns two applications by Peter Nichols for review of decisions of Comcare. The first application (A2000/353) is for review of a decision dated 1 September 2000 that denied a claim for permanent impairment for injuries to Mr Nichols' right knee during his employment with ACT Electricity and Water (ACTEW). The second application (A2001/374) is for review of a decision of 5 September 2001 that Comcare was no longer liable for any ongoing knee symptoms because Mr Nichols' compensable condition had resolved.
This matter was heard on 21 and 22 January 2002. Counsel for Mr Nichols was Mr Ian Bradfield and counsel for Comcare was Ms Lorraine Walker.

Background

Mr Nichols was born on 15 November 1971. After completing Year 10 he spent three years working as a labourer then returned to secondary college to obtain his Year 12 certificate. He completed Year 12 at the end of 1992.
In January 1993 Mr Nichols began a 4-year apprenticeship as an electrician with ACTEW. When the contract for his apprenticeship expired in January 1997 he was not offered permanent employment, having not completed all the formal requirements of his apprenticeship. He has since had only intermittent employment in a variety of jobs, including part-time bar work, light cleaning and a position as a chicken boner. At the time of the hearing he was looking after his 3-year-old son as a full-time carer.
Mr Nichols has had an unfortunate history of injuries to…

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 Nichols and Comcare

Details

AGLC: Nichols and Comcare [2003] AATA 53
Case: [2003] AATA 53
Decision Date: 20 January 2003

CaseChat Overview and Summary

In the case of Nichols v Comcare, the applicant, Mr Nichols, sought a review of Comcare’s decisions to cease liability for his ongoing medical treatment and incapacity for work. The dispute centred on whether Mr Nichols' current knee conditions were work-related, and if so, whether he was entitled to continued compensation for medical treatment or incapacity. The matter was heard by the Administrative Appeals Tribunal (AAT). The primary legal issues involved determining the extent to which Mr Nichols' knee injuries were related to his work, and whether these conditions constituted a permanent impairment warranting ongoing compensation. The Tribunal had to assess the relevant legislative provisions under the Safety, Rehabilitation and Compensation Act 1988, particularly sections 4, 16, 19, and 24, in light of prior case law.

The Tribunal began by examining the statutory framework and relevant case law, notably Re Carson and Telstra Corporation (2001) 33 AAR 351, which clarified the distinction between a cessation of liability for compensation payments and a denial of liability for the injury itself. This distinction was pivotal in understanding Comcare's decision. The Tribunal also referenced Lees v Comcare (1999) 29 AAR 350; 56 ALD 84, which supported the view that a cessation of liability decision only terminated payments under specific sections of the Act and did not negate the original determination of liability. After thoroughly reviewing the evidence, including testimonies from Mr Nichols, Dr Graeme Griffith, and Dr Jeremy Hopkins, the Tribunal concluded that Mr Nichols' synovitis and Baker's cyst were work-related. Therefore, Comcare's decision to cease liability for ongoing compensation was set aside, and the matter was remitted for reconsideration, with a direction to determine Mr Nichols' entitlements under sections 16 and 19 of the Act.

The Tribunal's decision affirmed the original determination regarding the cessation of liability for compensation payments but set aside the decision to cease liability for the effects of the injury. Mr Nichols was granted costs in the reconsideration matter, while his costs in the initial matter were denied. This nuanced approach ensured that Mr Nichols' entitlements were properly assessed in light of the work-related nature of his injuries.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Oral evidence was given by Mr Nichols, Dr Graeme Griffith, a consultant surgeon, and Dr Jeremy Hopkins, a consultant orthopaedic surgeon.Mr Nichols' Evidence Mr Nichols stated that in order to improve his job prospects he returned to college for two years at age 19 to 20. He majored in physical education, which included both practical and theory components. The practical component involved participation in a variety of sports including rugby league, indoor cricket and indoor soccer. The theory component included a coaching course. He had not had any problems with his knee prior to 1992. In February 1992 he was tackled during a rugby league match. His foot stuck in the ground facing forward as his body twisted in the tackle. He immediately left the field with an injury to his right knee. He walked home rather than riding his bicycle. His general practitioner, Dr Lee, referred him to Dr Gillespie, an orthopaedic surgeon, who suspected cartilage and possibly ligament damage. An arthroscopy would be required to determine the extent of the injury, and Mr Nichols was placed on a waiting list. In the meantime Mr Nichols returned to school. He had spent about a week treating his knee with ice and then afterwards used hot or cold towels. He resumed physical education in the second half of 1992 without any pain, and successfully completed his courses (Exhibit A3). His knee felt "100 per cent". He would ride his bicycle between his home in Oxley and the college at Erindale, often more than once a day as he would return home for lunch (Mr Nichols' estimate of the distance between the two at 7 or 10km seems somewhat exaggerated). Mr Nichols commenced his apprenticeship with ACTEW on 27 January 1993. The first three months were a probationary period before committing to the full four years of the apprenticeship. During this time the suitability of apprentices was assessed, including their suitability for the physical requirements of the job. Apprentices were also expected to perform a lot of heavy manual work as they were at the bottom of the hierarchy. Mr Nichols gave examples of digging trenches, climbing ladders, crouching and crawling into small spaces. The exact nature of the work depended on the section an apprentice was attached to, with a new rotation every 3 months. Each rotation included an assessment (see Exhibit A4). Mr Nichols did not have any problem with his knee when he started the apprenticeship. On 3 May 1993 Mr Nichols was walking down a flight of stairs at the technical college that he and other apprentices attended as part of their apprenticeship. Someone's bag clipped his foot, he fell down the stairs and twisted his right knee. Mr Nichols stated that a claim for compensation was not completed until some time later because he was given the wrong form by his supervisor. When the claim was denied he was unaware of the procedures available to challenge the decision. At this time Mr Nichols was also working part-time as a barman at the Tuggeranong Valley Rugby Union Club. In July 1993 he slipped on a wet tile floor and hit his kneecap. It became bruised and swollen. This was an impact injury rather than a twisting injury.

Decision

Reasons for decision

It is therefore appropriate to remit this matter to Comcare for determination of any entitlement to medical and incapacity payments with a direction that Mr Nichols continues to suffer from work related synovitis and Baker's cyst.Conclusions In summary, I conclude The reviewable decision of 1 September 2000 in A2000/353 is affirmed. Mr Nichols is not entitled to his costs in this matter. The reviewable decision of 5 September 2001 in A2001/374 is set aside and the matter remitted to Comcare for reconsideration with a direction that it determine Mr Nichol's entitlements under sections 16 and 19 of the Act on the basis that Mr Nichols continues to suffer from work related synovitis and a work related aggravation of a Baker's cyst in his right knee. The Tribunal orders Comcare to pay Mr Nichols' costs in A2001/374 as agreed or taxed.I certify that the 109 preceding paragraphs are a true copy of the reasons for the decision herein of Mr G A MowbraySigned: ..................................................................................... AssociateDates of Hearing 21-22 January 2002 Date of Decision 20 January 2003Counsel for the Applicant Mr I Bradfield Solicitor for the Applicant Ms S Snell, Baker Deane & NuttCounsel for the Respondent Ms L Walker Solicitor for the Respondent Ms K Kumar, Dibbs Barker Gosling

Ratio Decidendi

Legal Principle Established

Mr Nichols' general practitioner wrote a report on 10 May 2000 (T44). In it he set out "[t]he history as I know it". In his opinion Mr Nichols' earning capacity had been greatly reduced and he was not able to carry out he normal duties of an electrician. He would eventually require surgery to his Baker's cyst, possibly more than once as cysts had a history of recurrence. He would also develop osteoarthritis in his injured knee. Consideration of Issues and Findings"Cease liability/effects" decisions As I have said before, in many "cease liability" or "cease effect" decisions under the Act there appears to be a misunderstanding of the nature and effect of the determination that is made and of the statutory provisions relied on. In Re Carson and Telstra Corporation (2001) 33 AAR 351 Deputy President Estcourt stated"49. It would only be a rare case where a reconsideration of the substantive determination under s.14 that Comcare was liable to pay compensation in accordance with the Act would be warranted. Such a case might arise, for example, if it was subsequently discovered that the injury had never in fact occurred or that the person claiming was never in fact an employee.50. In such a case a reconsideration of the s.14 determination under s.62 resulting in a revocation would surely carry with it the result that no future claims in respect of that incident could properly be made, but in other cases, the revocation of a determination under relevant sections would not have the effect of preventing altogether further or other claims for compensation.…55. Telstra by its determination of 21 February 1995 was not, properly understood, denying those findings implicit in the original determination, it was merely determining that, on the available medical evidence, it was no longer liable for payment of medical expenses or incapacity payments.56. That is to say, the effect of the determination that "liability in respect of this injury ceased on and from 5 February 1995" was not a decision to "cease liability" altogether or to "cease liability" under s.14, but rather a purported determination to cease the payment of compensation under s.16 and s.19 of the Act.…58. The conclusion I have reached, namely, that at its highest, Telstra's determination only ceased payments of compensation under s.16 and s.19 of the Act and did not effectively revoke the earlier determination to accept liability under s.14, thereby preventing further claims for compensation being made at a later time, is also consistent with the reasoning of the Full Court in Plumb v Comcare (1992) 39 FCR 236." Implicit support for this approach is found in Lees v Comcare (1999) 29 AAR 350; 56 ALD 84, especially at [34] upon which Deputy President Estcourt relies. I agree with and adopt the views of Deputy President Estcourt. In these proceedings the second matter is a cease liability decision.The burden of persuasion It is neither particularly apt nor appropriate to refer to a common law concept of a burden or onus of proof placed on a particular party in administrative proceedings in the Tribunal. However there has been a line of authority in both the courts and the Tribunal on what has been described as the "burden of persuasion" in these matters.