O’Brien and Comcare (Compensation) - [2019] AATA 1004

O’Brien and Comcare (Compensation) [2019] AATA 1004 (24 May 2019)
Division: GENERAL DIVISION
File Number(s): 2017/0943
2017/0944
2017/0945
2017/0947
2017/0948
2017/0949
2017/0950
2017/0951
2015/0952
2017/0953
2017/0954
2017/0955
2017/0957
2017/5657
2018/1699

Re:Dean O'Brien
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Mr S. Webb, Member
Date:24 May 2019
Place:Canberra

The decision under review in application 2018/1699 is set aside. In place thereof the Tribunal decides the nature and conditions of Mr O’Brien’s previous employment caused an injury to his low back for which Comcare is liable.
The decision under review in application 2017/5657 is set aside. The effects of Mr O’Brien’s 2005 and 2010 injuries did not cease on or before 17 February 2017 and are presently ongoing. As of 17 February 2017 and presently, subject to claim, Comcare is liable to compensate Mr O’Brien for incapacity and medical treatment expenses.
The decision revoking determinations of compensation for incapacity made on 5 August 2015, 30 September 2015, 20 January 2016, 17 February 2016, 16 March 2016, 30 March 2016, 22 June 2016, 3 August 2016, 31 August 2016, 28 September 2016, 12 October 2016 and 9 November 2016, and denying compensation for incapacity from 13 May 2014 to 20 May 2015 is set aside. The revoked determinations will be reinstated. Comcare is liable to compensate Mr O’Brien for incapacity in the period from 13 May 2014 to 29 May 2015.
The matter is remitted to Comcare to determine amounts of compensation payable to Mr O’Brien.
The Parties have not been heard on the question of costs under s 67(8) of the SRC Act. Written submissions addressing this question and requesting orders may be made within 14 days. Should no such submissions be received, Comcare will be ordered to pay Mr O’Brien’s costs, as agreed or taxed in accordance with the Taxation of Costs Practice Direction.
........................................................................
Mr S. Webb, Member
COMPENSATION – low back injury claim – frank injury or disease - nature and conditions of work – notice of claimed injury – legal advice – no prejudice - serial occurrences of low back pain – accepted injuries – fluctuating symptoms – recurrence and exacerbation of symptoms – ‘disease’ contributed to by employment to a significant degree – progression of ‘disease’ - contribution of activities outside employment – nature and conditions of work significantly contributed to recurrence and progression of ‘disease’ – decision set aside
COMPENSATION – accepted low back injuries – frank injury – aggravation of intervertebral disc displacement significantly contributed to by employment – disease - progression and deterioration – causes of incapacity – medical treatment – persistence of effects of accepted injuries – meaning of ‘as a result of’ – no sole cause test - incapacity results from compensable injuries - liability to pay compensation in respect of incapacity and medical treatment expenses continues – decisions set aside
Administrative Appeals Tribunal Act 1975, ss 33, 43
Safety, Rehabilitation and Compensation Act 1988, ss 4, 5A, 5B, 6, 7, 14, 16, 19, 20, 21, 21A, 53 68

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 O’Brien and Comcare (Compensation)

Details

AGLC: O’Brien and Comcare (Compensation) [2019] AATA 1004
Case: [2019] AATA 1004
Decision Date: 24 May 2019

CaseChat Overview and Summary

This matter concerns an appeal by Dean O’Brien against decisions made by Comcare. Mr O’Brien sustained a low back injury during his employment as a Stores Officer with the Department of Parliamentary Services (DPS). He had previously received compensation for two separate back injuries sustained during this employment. The dispute arose when Comcare reviewed and subsequently revoked, curtailed, or rejected further compensation claims made by Mr O’Brien for incapacity, medical treatment, and the nature of his work as a cause of injury, particularly in light of activities outside his employment. The decision was made by Mr S. Webb, a Member of the Administrative Appeals Tribunal.

The primary legal issues before the Tribunal were to determine Comcare’s liability in respect of Mr O’Brien’s low back condition, specifically whether it constituted a ‘disease’ or an ‘injury (other than a disease)’, or related aggravations. This required an assessment of the precise evidence concerning the history and progress of his condition, including physiological changes in his lumbar spine, and whether the requisite nexus with his previous employment could be established. The Tribunal also had to consider the extent to which activities outside his DPS employment contributed to his low back condition and related symptoms, and whether his employment significantly contributed to the recurrence and progression of any disease.

The Tribunal reasoned that a detailed, fact-by-fact examination of Mr O’Brien’s employment duties and the progression of his low back condition was necessary. His role as a Stores Officer involved significant manual handling, including lifting loads up to 20kg, bending, twisting, operating vehicles, and loading and unloading heavy items. The Tribunal noted that Mr O’Brien’s evidence regarding these duties was largely unchallenged and consistent with his duty statement, with added detail about the weight of waste bins and the repetitive lifting and bending involved in X-ray screening procedures. The Tribunal considered whether his employment had significantly contributed to the recurrence and progression of his low back condition, and whether his incapacity and need for medical treatment resulted from his compensable injuries.

The Tribunal set aside Comcare’s decisions, finding that the nature and conditions of Mr O’Brien’s work significantly contributed to the recurrence and progression of his low back condition. It also determined that his incapacity and need for medical treatment resulted from his compensable injuries, meaning Comcare’s liability to pay compensation continues. The parties have not yet been heard on costs, with written submissions to be made within 14 days. If no submissions are received, Comcare will be ordered to pay Mr O’Brien’s costs.

Orders

Orders of the court

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Background

Background to the litigation

Furthermore, it is necessary to consider the precise evidence concerning the history and progress of Mr O’Brien’s low back condition, including the nature and incidents of physiological changes in his lumbar spine, on a fact by fact basis in order to determine Comcare’s liability in respect of a ‘disease’ or ‘an injury (other than a disease)’, or related aggravations, should the requisite nexus with his previous employment be made out. This requires a lengthy and detailed exposition of facts.Facts Mr O’Brien was 22 years old when he commenced full time employment with DPS in or about January 2000. He had no history of back complaints, injuries or symptoms. He was employed as a Stores Officer in the loading dock area of Parliament House. The Duty Statement for this position indicates that the job included receiving, packing, stowing and delivering stores (including furniture), collecting and removing waste and refuse, and operating materials handling equipment, including tugs (electronic tractors).[1][1] ST2, folio 913. In addition, the job involved the following physical work –Use of Vehicles –· Operate vehicles in the basement including forklifts· Load and unload vehicles· Strap and lash loads (ie tie down on vehicles)· Getting in and out of vehicles at intervals all day· Bending and swivelling required to operate forklifts and hook up trailers· Required to twist while seated to check for any obstructions behind vehicle eg when undertaking ‘garbage run’ – need to check for traffic in front, sides and behind when lifting and moving mini skips· Pull trailers into place by hand so they can be hooked onto vehicle (in most cases these will be empty but on occasion they will be laden with goods [sic]Loading items –·Load, unload and move equipment to different locations in the building as required·Assess loads of unusual shape and size and determine the best method to move them eg use pallet jack, fork lift or assistance from other staff·Will be required to lift loads and will therefore need flexibility to bend, lift and stack goods·Use proper manual handling techniques when lifting loads·Would be required to lift loads of up to 20kg by hand (staff are instructed to utilise lifting apparatus or to seek assistance from other staff lifting items heavier than this, posters in the work area also advise staff on this issue)[2][2] ST1, folio 912. Mr O’Brien gave detailed oral evidence in respect of the actual work he carried out of a regular daily basis. His evidence on these matters was not seriously challenged and it is largely consistent with the stated duties, although with greater detail. For example, he explained the ‘garbage run’ involved, among other things, the collection of 240 litre bins of waste paper that would be hoisted onto trailers by a single person standing on the trailer deck, bending forward and pulling up the heavy bin onto the deck. On his evidence, the 240 litre waste bins weighed well in excess of 20 kilograms. He also gave evidence about the X-ray screening procedure for all goods entering Parliament House, including heavy items of furniture, such as fridges, and pallets of boxes of paper in reams, where each box would be unstacked, placed on the running belt of the X-ray machine and then stacked again. He explained that the running belt was approximately knee height from the floor, so the procedure involved a lot of lifting, bending and twisting.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The Parties have not been heard on the question of costs under s 67(8) of the SRC Act. Written submissions addressing this question and requesting orders may be made within 14 days. Should no such submissions be received, Comcare will be ordered to pay Mr O’Brien’s costs, as agreed or taxed in accordance with the Taxation of Costs Practice Direction.........................................................................Mr S. Webb, MemberCOMPENSATION – low back injury claim – frank injury or disease - nature and conditions of work – notice of claimed injury – legal advice – no prejudice - serial occurrences of low back pain – accepted injuries – fluctuating symptoms – recurrence and exacerbation of symptoms – ‘disease’ contributed to by employment to a significant degree – progression of ‘disease’ - contribution of activities outside employment – nature and conditions of work significantly contributed to recurrence and progression of ‘disease’ – decision set asideCOMPENSATION – accepted low back injuries – frank injury – aggravation of intervertebral disc displacement significantly contributed to by employment – disease - progression and deterioration – causes of incapacity – medical treatment – persistence of effects of accepted injuries – meaning of ‘as a result of’ – no sole cause test - incapacity results from compensable injuries - liability to pay compensation in respect of incapacity and medical treatment expenses continues – decisions set asideAdministrative Appeals Tribunal Act 1975, ss 33, 43Safety, Rehabilitation and Compensation Act 1988, ss 4, 5A, 5B, 6, 7, 14, 16, 19, 20, 21, 21A, 53 68Taxation Administration Act 1953, s 14ZZKCasesAbrahams v Comcare [2006] FCA 1829Allianz Australia Insurance Ltd v GSF Australia Pty Ltd [2005] HCA 26Comcare v Martin [2016] HCA 43Commonwealth of Australia v Keith Colville Smith [1989] FCA 189Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452McDonald v Director-General of Social Security [1984] FCA 59Military Rehabilitation and Compensation Commission v May [2016] HCA 19.Phillips v The Commonwealth (1964) 110 CLR 347Power v Comcare [2015] FCA 1502Prain v Comcare [2017] FCAFC 143.REASONS FOR DECISIONMr S. Webb, Member24 May 2019 Dean O’Brien hurt his back undertaking manual work in the course of his previous employment as a storeman by the Department of Parliamentary Services (DPS). On two occasions he successfully claimed compensation for injuries to his back. His DPS employment came to an end and Comcare determined amounts of periodic compensation for incapacity to which he was entitled. A dispute arose about the extent to which, if at all, activities outside his DPS employment contributed to his low back condition and related symptoms. It is in this context that Comcare made a series of reviewable decisions revoking, curtailing and rejecting compensation Mr O’Brien claimed in respect of incapacity for work, medical treatment expenses and the nature and conditions of his previous work as a cause of injury.

Ratio Decidendi

Legal Principle Established

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