Parker and Comcare (Compensation)

Case [2021] AATA 3021

Parker and Comcare (Compensation) [2021] AATA 3021 (23 August 2021)

Division:GENERAL DIVISION

File Number(s):2021/1521      

Re:Catherine Parker  

APPLICANT

ComcareAnd  

RESPONDENT

Decision

Tribunal:Mr S. Webb, Member

Date:23 August 2021

Place:Canberra

The Tribunal has no jurisdiction in respect of an alleged injury under s 4(3) of the Safety, Rehabilitation and Compensation Act 1988.

………………[sgd]……………..

Mr S. Webb, Member

Catchwords

PRACTICE & PROCEDURE – application for review of reconsideration decision – Tribunal’s jurisdiction – allegation of injury resulting from medical treatment – operation of deeming provision – requirements for notice ‘of an injury’ – compensation not payable unless claim for compensation made – meaning of ‘substantial compliance’ – notice not given - no claim made – no jurisdiction.

Legislation

Administrative Appeals Tribunal Act 1975 ss 25, 43

Safety, Rehabilitation and Compensation Act 1988 ss 4, 5A, 5B, 14, 16, 19, 53, 54, 60, 62, 64

Cases

Bailey v Broadsword Marine Contractors Pty Ltd [2017] FCAFC 219

Buhr v Comcare [2007] FCA 575

Canute v Comcare [2006] HCA 47

Comcare v Canute [2005] FCAFC 262

Comcare v Muir [2016] FCA 346

Irwin v Military Rehabilitation and Compensation Commission [2009] FCAFC 33

Lang v Comcare [2007] FCA 47

Lees v Comcare [1999] FCA 753

Military Rehabilitation and Compensation Commission v May [2016] HCA 19

Parker v Comcare (Compensation) [2021] AATA 2350

Portors v Comcare [2018] FCA 914

Re Fuad and Telstra Corp Ltd [2004] AATA 11682

Telstra Corporation v Barrow [1994] FCA 1141

Telstra Corporation Ltd v Hannaford [2006] FCAFC 27

VYRP v Comcare (Compensation) [2018] AATA 3202

REASONS FOR DECISION

Mr S. Webb, Member

23 August 2021

  1. Catherine Parker claimed and was paid compensation in respect of an injury affecting her right upper limb. Comcare accepted liability for this injury and, in so doing, it applied different diagnostic labels, including ‘supraspinatus (muscle) (tendon) strain (right)’, ‘Nerve root plexus disorders (right)’ and ‘chronic pain syndrome’. In February 2020, Comcare decided that Ms Parker had no present entitlement to compensation for the injury under s 16 and s 19 of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act).[1] In March 2021, Comcare reconsidered and decided to affirm the determination.[2]

    [1] T94.

    [2] T111.

  2. Ms Parker was not satisfied with this decision and applied for review by the Tribunal.

  3. In the course of proceedings, two jurisdictional issues arose. The first related to the Tribunal’s jurisdiction to decide Ms Parker’s entitlement to compensation in respect of a chronic pain injury. This was dealt with in Parker v Comcare (Compensation) AATA 2350 (1st Parker decision).

  4. The second issue relates to the Tribunal’s jurisdiction to decide if Ms Parker sustained an injury under s 4(3) of the SRC Act for which Comcare is liable to pay compensation.

  5. It is this issue, alone, that I will deal with in these reasons.

  6. The parties provided detailed written submissions addressing related issues.

  7. In order to address the issues raised and to enable clear understanding, it…

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AGLC
Parker and Comcare (Compensation) [2021] AATA 3021
Case
[2021] AATA 3021
Decision Date

CaseChat Overview and Summary

This matter concerned an application for review of a reconsideration decision made by Comcare. The applicant, Ms Parker, sought compensation for injuries, including thoracic outlet syndrome, which she alleged resulted from medical treatment. The dispute centred on whether the Administrative Appeals Tribunal (AAT) had jurisdiction to determine Ms Parker's entitlement to compensation for this condition.

The primary legal issue before the Tribunal was whether it possessed jurisdiction to determine if Ms Parker had sustained an injury under section 4(3) of the *Safety, Rehabilitation and Compensation Act 1988* (Cth) for which Comcare was liable to pay compensation. This question arose in the context of Ms Parker's claim for compensation for thoracic outlet syndrome, which she argued was a consequence of earlier accepted conditions and subsequent medical interventions.

The Tribunal determined that it lacked jurisdiction because Ms Parker had not provided notice of an injury, nor had she made a claim for compensation in respect of the thoracic outlet syndrome prior to the reconsideration decision. The Tribunal applied the principles that compensation is not payable unless a claim for compensation has been made, and that notice of an injury must be given. It found that the information provided by Ms Parker did not constitute substantial compliance with the requirements for notice of an injury or a claim for compensation for the specific condition of thoracic outlet syndrome. Consequently, the Tribunal concluded that it could not proceed to determine the merits of Ms Parker's claim.

Orders

Orders of the court

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Background

Background to the litigation

In order to address the issues raised and to enable clear understanding, it is first necessary to set out relevant facts.Facts On 4 January 2012, Ms Parker claimed compensation for an injury that was described in the following terms[3] –[3] T3, folio 10. On 9 March 2012, Comcare accepted liability under s 14 of the SRC Act in respect of ‘supraspinatus (muscle) (tendon) strain (right)’ and ‘nerve root plexus disorders (right)’.[4][4] T11, folio 40. On 13 February 2013, Comcare decided to accept liability under s 14 of the SRC Act for ‘chronic pain syndrome’ and ‘anxiety disorder due to a medical condition’. In so doing, Comcare referred to these ailments as ‘secondary conditions’.[5][5] T19, folio 77. On 24 September 2015, Comcare decided that Ms Parker had no present entitlement to compensation for her ‘supraspinatus (muscle) (tendon) strain (right)’, ‘nerve root plexus disorders (right)’ and ‘Chronic pain syndrome’ injuries under s 16 and s 19 of the SRC Act.[6][6] T39, folio 194. This decision notwithstanding, Ms Parker continued to experience pain and other symptoms in her right upper limb. On 11 May 2016, Dr Damiani, an orthopaedic surgeon, reported that Ms Parker’s symptoms were ‘consistent with a thoracic outlet syndrome with superimposed sympathetic dystrophy’.[7][7] T44. On 28 June 2016, Ms Parker consulted Professor Hardman, a consultant vascular surgeon, who diagnosed a ‘neurogenic thoracic outlet syndrome [that] would benefit from surgical intervention’.[8] Subsequently, on 5 August 2016, the Professor operated on Ms Parker and resectioned her first rib. On 31 January 2017, Professor Hardman reported –To have such a good surgical outcome for what is essentially a chronic pain syndrome, is good evidence that the diagnosis that led to this surgery was the correct diagnosis. Repetitive stress injuries in the workforce are a well-documented cause of neuropathic thoracic outlet.[9] [8] T50, folio 217.[9] T56, folio 241. On 9 February 2017, Ms Parker requested reconsideration of Comcare’s 24 September 2015 determination and attached copies of medical reports by Dr Damiani, Professor Hardman and her general practitioner, Dr Kamath.[10][10] T57, folio 243. On 8 March 2017, Comcare issued a reconsideration decision in which the 24 September 2015 determination was varied, such that there was present liability for ‘right nerve root and plexus disorder (diagnosed as thoracic outlet syndrome) under s 16 and s 19 of the SRC Act.[11] The decision maker referred to the report of Professor Hardman and stated –Given the above, I am satisfied a supraspinatus strain and chronic pain syndrome were provisional diagnoses and your symptomatology has now been attributed to the definitive diagnosis of thoracic outlet syndrome. As such, I find there is no present liability for the supraspinatus strain and chronic pain syndrome.[12][11] T58, folio 245.[12] Ibid, folio 247. There are many medical reports in the documents before the Tribunal that discuss Ms Parker’s symptoms after surgery. These include reports by –(a)Dr Jain, a treating pain specialist;[13](b)Dr Seevnarain, a consultant occupational physician;[14](c)Dr Seneviratne, a consultant neurologist;[15](d)Mr Croger, a pain physiotherapist;[16](e)Dr Gawarikar, a consultant neurologist;[17](f)Dr Gorman, a consultant physician and pain management specialist;[18] and(g)Dr McBurnie, a consultant occupational physician.[19][13] T60, T66, T68, T69, T73, T74, T78, T81, T85, T86, T88 and T95.[14] T83 and T89.[15] T91.[16] T87.[17] T79.[18] T76.[19] T67 and T71.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

In the course of proceedings, two jurisdictional issues arose. The first related to the Tribunal’s jurisdiction to decide Ms Parker’s entitlement to compensation in respect of a chronic pain injury. This was dealt with in Parker v Comcare (Compensation) AATA 2350 (1st Parker decision). The second issue relates to the Tribunal’s jurisdiction to decide if Ms Parker sustained an injury under s 4(3) of the SRC Act for which Comcare is liable to pay compensation. It is this issue, alone, that I will deal with in these reasons. The parties provided detailed written submissions addressing related issues. In order to address the issues raised and to enable clear understanding, it is first necessary to set out relevant facts.Facts On 4 January 2012, Ms Parker claimed compensation for an injury that was described in the following terms[3] –[3] T3, folio 10. On 9 March 2012, Comcare accepted liability under s 14 of the SRC Act in respect of ‘supraspinatus (muscle) (tendon) strain (right)’ and ‘nerve root plexus disorders (right)’.[4][4] T11, folio 40. On 13 February 2013, Comcare decided to accept liability under s 14 of the SRC Act for ‘chronic pain syndrome’ and ‘anxiety disorder due to a medical condition’. In so doing, Comcare referred to these ailments as ‘secondary conditions’.[5][5] T19, folio 77. On 24 September 2015, Comcare decided that Ms Parker had no present entitlement to compensation for her ‘supraspinatus (muscle) (tendon) strain (right)’, ‘nerve root plexus disorders (right)’ and ‘Chronic pain syndrome’ injuries under s 16 and s 19 of the SRC Act.[6][6] T39, folio 194. This decision notwithstanding, Ms Parker continued to experience pain and other symptoms in her right upper limb. On 11 May 2016, Dr Damiani, an orthopaedic surgeon, reported that Ms Parker’s symptoms were ‘consistent with a thoracic outlet syndrome with superimposed sympathetic dystrophy’.[7][7] T44. On 28 June 2016, Ms Parker consulted Professor Hardman, a consultant vascular surgeon, who diagnosed a ‘neurogenic thoracic outlet syndrome [that] would benefit from surgical intervention’.[8] Subsequently, on 5 August 2016, the Professor operated on Ms Parker and resectioned her first rib. On 31 January 2017, Professor Hardman reported –To have such a good surgical outcome for what is essentially a chronic pain syndrome, is good evidence that the diagnosis that led to this surgery was the correct diagnosis. Repetitive stress injuries in the workforce are a well-documented cause of neuropathic thoracic outlet.[9] [8] T50, folio 217.[9] T56, folio 241. On 9 February 2017, Ms Parker requested reconsideration of Comcare’s 24 September 2015 determination and attached copies of medical reports by Dr Damiani, Professor Hardman and her general practitioner, Dr Kamath.[10][10] T57, folio 243. On 8 March 2017, Comcare issued a reconsideration decision in which the 24 September 2015 determination was varied, such that there was present liability for ‘right nerve root and plexus disorder (diagnosed as thoracic outlet syndrome) under s 16 and s 19 of the SRC Act.[11] The decision maker referred to the report of Professor Hardman and stated –Given the above, I am satisfied a supraspinatus strain and chronic pain syndrome were provisional diagnoses and your symptomatology has now been attributed to the definitive diagnosis of thoracic outlet syndrome. As such, I find there is no present liability for the supraspinatus strain and chronic pain syndrome.[12][11] T58, folio 245.[12] Ibid, folio 247.

Ratio Decidendi

Legal Principle Established

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