Norman Davie and Comcare - [2014] AATA 1

[2014] AATA 1

Division GENERAL ADMINISTRATIVE DIVISION

File Number(s)

2012/3484

Re

Norman Davie

APPLICANT

And

Comcare

RESPONDENT

DECISION

Tribunal
The Hon R J Groom AO (Deputy President)

Date 16 January 2014

Place Hobart
The decision under review is affirmed.

[Sgd Hon R J Groom]
Deputy President
COMPENSATION – Commonwealth employee – whether medications prescribed for compensable back injury caused sensorineural hearing loss and tinnitus – relevance of Statement of Principles in claims under Safety Rehabilitation and Compensation Act 1988 – comparative evidentiary value of various research studies and reports of general application and specifically focused expert medical evidence – burden and standard of proof – decision affirmed
Safety, Rehabilitation and Compensation Act 1988, ss 4, 6A, 14
Statement of Principles concerning Sensorineural Hearing Loss No 6 of 2011
Veterans’ Entitlements Act 1986
Repatriation Commission v Deledio (1998) 49 ALD 193
Holbrook and Australian Postal Commission (1993) 5 ALN N46
Ladic and Capital Territory Health Commission (1982) 5 ALN N60
Briginshaw v Briginshaw (1938) 60 CLR 336
Re Kirby and Collector of Customs (1989) 20 ALD 369
Field v Australian Postal Corporation [2003] AATA 1036
Robertson v Comcare [2002] AATA 1259
Roe v Comcare [2003] AATA 126
Re Elliott and Comcare (2001) 64 ALD 423
Re Winter and Commonwealth of Australia (1989) 18 ALD 264
REASONS FOR DECISION
The Hon R J Groom AO (Deputy President)
16 January 2014
INTRODUCTION

Mr Davie was an employee of the then Repatriation Department, now known as the Department of Veterans’ Affairs, from 1975 until 1991. He then became a Tasmanian State Service employee when the Repatriation General Hospital in Hobart was transferred to the Tasmanian Government. Mr Davie continued in a managerial role in the State Department of Health and Human Services until he retired in April 2009.
In 1975 Mr Davie, then a Commonwealth employee, successfully claimed compensation for a work-related back injury “… causing lumbar disc degeneration at L5 level and adjustment reaction with mixed emotional features …”
To relieve the pain caused by his compensable back injury Mr Davie was prescribed various medications by his general practitioners. The cost of the medications was paid for as part of his entitlement to compensation following his 1975 claim.
It is not in dispute in these proceedings that Mr Davie suffers binaural high tone sensorineural hearing loss. On 14 December 2011 Mr Davie made a claim for compensation under the Safety, Rehabilitation and Compensation Act 1988 (“the Act”) for “sensorineural deafness”. It is alleged that this deafness is caused by, or materially contributed to by, the medications prescribed for the back injury.
On 14 May 2012 the respondent denied liability for sensorineural hearing loss (bilateral) as well as for a further condition of tinnitus (bilateral). In a reviewable decision dated 23 July 2012 (T12) the respondent affirmed the determination of 14 May 2012.
The applicant has now applied to this Tribunal for a review of the decision of 23 July 2012.
It is common ground between the parties that each of the medical conditions…

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 Norman Davie and Comcare

Details

AGLC: Norman Davie and Comcare [2014] AATA 1
Case: [2014] AATA 1
Decision Date

CaseChat Overview and Summary

Norman Davie, an applicant, sought a review of a decision by Comcare, the respondent, which declined to pay him compensation for hearing loss and tinnitus. The applicant argued that his condition was caused by his long-term use of prescribed medications. The matter was heard by the Administrative Appeals Tribunal, which was tasked with determining whether the medications were a probable cause of the applicant's hearing issues.

The primary legal issue before the Tribunal was whether the applicant had demonstrated, to the requisite standard, that his hearing loss and tinnitus were caused by his prescribed medications. The Tribunal also needed to determine the appropriate standard of proof in the absence of specific legislative direction. Given the administrative nature of the Tribunal's proceedings, the relevant facts were to be established to the Tribunal's reasonable satisfaction, on the balance of probabilities.

The Tribunal found that the applicant's claim was not supported by direct evidence from a medical expert, which was crucial to establishing the required causal link. The expert evidence provided by the respondent, on the other hand, was focused and specific, suggesting that the applicant's hearing loss was more likely due to advanced presbyacusis or age-related hearing loss. The Tribunal concluded that the applicant had not met the necessary standard of proof to establish that the prescribed medications were a probable cause of his hearing problems.

The Tribunal dismissed the applicant's appeal, affirming the original decision of Comcare.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The Tribunal found Mr Matison, an experienced Ear Nose and Throat Specialist, to be a persuasive expert witness and accepts his opinion that the medications taken by Mr Davie were not a “probable” cause of his hearing loss and tinnitus but were merely a “possible” causative factor.CONCLUSION In a case of this kind the Tribunal, in effect, “stands in the shoes” of the original administrative decision-maker. There is no formal onus or standard of proof unless the specific legislation so provides. In this application the relevant legislation is silent on the issue. The question of any onus of proof applying in Administrative Appeals Tribunal applications was discussed in Re Holbrook and Australian Postal Commission (1993) 5 ALN N46, where it was suggested as a matter of common sense “that he who asserts, or he who seeks a result, must prove.” That accorded with the view earlier expressed by Fox J in Ladic and Capital Territory Health Commission (1982) 5 ALN N60. Bearing in mind the administrative nature of the Tribunal’s proceedings, facts relevant to a decision are to be established to the Tribunal’s “reasonable satisfaction” (See Briginshaw v Briginshaw (1938) 60 CLR 336 at 362 per Dixon J (as he then was) and also Re Kirby and Collector of Customs (1989) 20 ALD 369). In the absence of a legislated standard the Tribunal has consistently held that relevant facts are to be determined on the “balance of probabilities” (see, for example, Field v Australian Postal Corporation [2003] AATA 1036, Robertson v Comcare [2002] AATA 1259 and Roe v Comcare [2003] AATA 126). The fundamental problem for the applicant in this case is the complete lack of any direct supporting evidence from a medical expert. The applicant relies on reasonably authoritive but quite inconclusive studies and reports of general application as well as the expressions of opinion contained in the SOP. Mr Skinner has acknowledged that SOPs “are not law in relation to claims under the Act” (see the “Statement of Agreed Facts” (R2)). Had Mr Davie’s claim been supported by direct evidence from a medical expert who, after considering Mr Davie’s medical conditions and his long term use of prescribed medications, was able to express the opinion that there was a probable causative link between the taking of the medications and his hearing problems then his case may then have been more persuasive. In contrast the respondent’s case is supported by the focused and specific expert evidence of Mr Matison. He interviewed Mr Davie and after considering the relevant history expressed the view that the cause of Mr Davie’s hearing loss was “probably advanced presbyacusis” (T7 page 5) or deafness that occurs as part of the ageing process. Although doubtful that the various prescribed medications were a causative factor he was prepared to acknowledge that it was “possible” that the long term use of the prescribed medication may have had some effect on Mr Davie’s hearing. Mr Matison put it no higher than that. It is noted that the RMA report itself highlighted the prevalence of hearing impairment in older people and the many factors which can contribute to hearing loss (see eg page 14 of that report). Mere possibilities are not sufficient to establish an entitlement to compensation under the Act.

Ratio Decidendi

Legal Principle Established

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Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2012/3484
Re	Norman Davie
APPLICANT
And	Comcare
RESPONDENT

Tribunal	The Hon R J Groom AO (Deputy President)
Date	16 January 2014
Place	Hobart