Philson and Comcare (Compensation) - [2017] AATA 1358

Philson and Comcare (Compensation) [2017] AATA 1358 (28 August 2017)
Division:GENERAL DIVISION
File Number(s): 2016/2600
Re:Hoyt Philson
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Mr S. Webb, Member
Date:28 August 2017
Place:Canberra

The decision under review is set aside. Mr Philson’s accepted exacerbation of hypertension injury persisted as of 22 January 2016 and, from that day to the present, he is entitled to compensation under s 16 of the SRC Act, subject only to proper determination of any such claim by Comcare on the merits.
........................................................................
Mr S. Webb, Member
COMPENSATION – accepted injuries – acute anxiety and exacerbation of hypertension – terms of originating claim and liability determination to be interpreted generously – allowance for progressive and evolving decision-making – variation of ‘injury’ description in the light of new evidence – episodic character of exacerbation – progress of underlying medical condition – assessment of causes and effects – causal link between anxiety and exacerbation of hypertension ongoing – decision set aside
JURISDICTION – injury – psychiatric disease and exacerbation of hypertension – sequence of events and progressive decision-making – weight gain a symptom of psychiatric disease – obesity – no jurisdiction to determine if obesity is an ‘injury’ for which Comcare is liable
Compensation (Commonwealth Government Employees) Act 1971, s 29
Safety, Rehabilitation and Compensation Act 1988, s 5A, 5B, 14, 16, 124
Australian Postal Corporation v Nadge [1994] FCA 1163
Military Rehabilitation and Compensation Commission v May [2016] HCA 19
Telstra Corporation Ltd v Hannaford [2006] FCAFC 87
Tippett v Australian Postal Corporation [1998] FCA 335
REASONS FOR DECISION
Mr S. Webb, Member
28 August 2017

Many years ago, Hoyt Philson was injured at work. His mind was affected and his hypertension was exacerbated. After the injury, in many ways, his life changed. He did not return to employment. His world collapsed into social isolation, disorganisation and futility coloured by loss of motivation and occasional despair. The consequences of injury affect him still. These proceedings arise from one aspect of Mr Philson’s injury and his present circumstances, in respect of compensation for medical treatment of hypertension.
On 22 January 2016, Comcare decided that Mr Philson was not entitled to payment of compensation for medical treatment of this kind as he no longer suffered the work-related exacerbation of his hypertension. This determination was affirmed on reconsideration. Mr Philson is not satisfied with this result and he applied for review.
In order to understand this case, it is helpful to set out the background facts and evidence in some detail.
Facts
Details of Mr Philson’s family and employment history are recorded in the 2 February 1993 medical report by Dr Knox, previous treating psychiatrist.[1] Otherwise, little is known about Mr Philson’s family medical history (he was adopted at the age of three). The present medical records do not shed much light on the state of Mr Philson’s health, including his blood pressure and weight in particular, before April 1987.
[1] ST4 folio 213-214.
On 15 April 1987, Mr…

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.

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Details

Case: [2017] AATA 1358
Decision Date: 28 August 2017

CaseChat Overview and Summary

This matter came before Mr S. Webb, Member, concerning a dispute between Mr Philson and Comcare regarding compensation for an exacerbation of hypertension. The background facts indicate that Mr Philson experienced workplace stress and tension, which coincided with elevated blood pressure readings. While initial medical assessments in April 1987 recorded normal blood pressure, subsequent records from July 1989 onwards showed readings above the hypertension threshold. Mr Philson was admitted to hospital in September 1989 with chest pain, and medical reports at that time noted a background of hypertension diagnosed approximately two years prior, with treatment commencing only two months before his admission.

The legal issues before the court were whether Mr Philson's hypertension constituted an "injury" for the purposes of the *Safety, Rehabilitation and Compensation Act 1988* (Cth) (SRC Act), and if so, whether the exacerbation of this condition was ongoing and therefore continued to attract liability for compensation from Comcare. Specifically, the court needed to determine the date from which the accepted exacerbation of hypertension injury persisted and whether this persistence entitled Mr Philson to compensation under section 16 of the SRC Act.

The Member reasoned that the mechanism of exacerbation of Mr Philson's hypertension was ongoing, and therefore the 'injury' for which Comcare was liable continued. The court applied the principle that if an injury persists, the entitlement to compensation also persists. The decision under review was set aside, and it was determined that Mr Philson's accepted exacerbation of hypertension injury persisted as of 22 January 2016 and continued to the present.

Consequently, Mr Philson was found to be entitled to compensation under section 16 of the SRC Act from 22 January 2016 onwards, subject to Comcare's proper determination of any such claim on its merits.

Orders

Orders of the court

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Background

Background to the litigation

In order to understand this case, it is helpful to set out the background facts and evidence in some detail.Facts Details of Mr Philson’s family and employment history are recorded in the 2 February 1993 medical report by Dr Knox, previous treating psychiatrist.[1] Otherwise, little is known about Mr Philson’s family medical history (he was adopted at the age of three). The present medical records do not shed much light on the state of Mr Philson’s health, including his blood pressure and weight in particular, before April 1987. [1] ST4 folio 213-214. On 15 April 1987, Mr Philson underwent a medical examination for employment as a fitter in the Rehabilitation Unit of the Woden Valley Hospital. He denied any personal or family history of high blood pressure.[2] The medical examiner, Dr Rososinski, recorded Mr Philson’s height as 170 centimetres; his weight as 93 kilograms; and his blood pressure as 110/80.[3] [2] Exhibit 1, page 2.[3] Ibid, page 6. Things did not go well for Mr Philson at work. Conflict and mistrust arose in the workplace, and Mr Philson experienced tension and stress. On 17 July 1989, Mr Philson was noted to be “overweight” and his blood pressure was “160/110 sitting”.[4] It appears that his blood pressure was labile at this time. Mr Philson’s blood pressure was recorded to be elevated in the period from 17 July 1989 to 23 August 1989. On 30 August 1989, his blood pressure was within the normal range at 120/90, but this increased above the hypertension threshold of 130/90 in the period from 1 September 1989 to 14 September 1989. [4] Exhibit 10, page 1. On 15 September 1989, he was admitted to the Woden Valley Hospital complaining of chest pain. His height (1.72 metres) and weight (99.2 kilograms) were recorded and he was noted to be obese.[5] Mr Philson cavils with this assessment on grounds that, at the time, he was fit, well-muscled and with a large frame.[5] Exhibit 10, page 66.. On 18 September 1989, he was examined by Dr Hayes, a cardiology registrar, who reported that his blood pressure was “120/70 lying” and “145/76 standing”, and “he has a background of hypertension for about two (2) years, on treatment for only about two (2) months”.[6] Mr Philson says that Dr Hayes made a number of mistakes when recording his medical history – recording him as a ‘smoker’, when this should have been ‘ex-smoker’, and confusing his history of chest pains with hypertension. I am unable to determine if Mr Philson is correct as Dr Hayes was not called to give evidence. [6] Exhibit 8, page 1. While the contemporaneous clinical records do not establish that Mr Philson’s blood pressure was elevated to hypertensive levels prior to July 1989, there are other records that refer to a diagnosis of hypertension from 1987. Mr Philson was assessed in the Staff Clinic of the Woden Valley Hospital on 27 September 1989 with a six-month history of “atypical chest pain”. This symptomatology was investigated. On 5 October 1989, Dr McIntyre, a gastroenterology registrar, reported –“A summary of this patient’s medical problems is:hypertension – diagnosed two years ago. Currently treated with Metoprolol 50mg bd, Nifedipine slow release 40mg bd.previous traumatic fractures – of left leg.atypical chest pain – ischemic pain excluded with stress Thallium.For endoscopy and oesophageal transit study looking for oesophageal cause of pain.”[7][7] Exhibit 10, page 11.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

As the mechanism of exacerbation of his hypertension continues, so too does the ‘injury’ for which Comcare is liable.Decision The decision under review is set aside. Mr Philson’s accepted exacerbation of hypertension injury persisted as of 22 January 2016 and from that day to the present he is entitled to compensation under s 16 of the SRC Act, subject only to proper determination of any such claim by Comcare on the merits.

Ratio Decidendi

Legal Principle Established

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