Pito and Comcare (Compensation) - [2019] AATA 1347

Pito and Comcare (Compensation) [2019] AATA 1347 (20 June 2019)
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL              )
  )         No: 2017/5548
)         2018/1999
)         2018/2760

General Division )
Re: Josephine Pito
Applicant

And: Comcare
Respondent
CORRIGENDUM
TRIBUNAL:  Member R West
DATE OF CORRIGENDUM:            12 July 2019
PLACE:           Melbourne

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application as follows:

Delete the orders stated on pages 1 and 2 of the decision and replace them with:
1. The decision of the delegate of the Respondent dated 22 August 2017 in Matter 2017/5548 is affirmed.
2. The decision of the delegate of the Respondent dated 16 March 2018 in Matter 2018/1999 is set aside.
3. The decision of the delegate of the Respondent dated 9 May 2018 in Matter 2018/2760 is set aside.
4. In substitution for the decisions set aside in paragraphs 2 and 3 above the Tribunal decides that, on and from 7 November 2014 the Applicant suffered an injury, namely an aggravation of chronic pain syndrome for which the Applicant is entitled to compensation pursuant to section 14 the Safety Rehabilitation and Compensation Act 1988.
5. Costs are reserved

Delete paragraphs 176 to 180 (inclusive) of the Reasons for Decision and replace them with:
176. Accordingly, the decisions of the delegate of the Respondent dated 16 March 2018 in Matter No. 2018/1999 and dated 9 May 2018 in Matter 2018/2760 to deny liability to the Applicant, under s. 14 of the SRC Act, are each set aside.
177. Having found that the physiological effects of the Applicant’s right ankle sprain had resolved by 10 February 2017 the Tribunal affirms the decision of the delegate of the Respondent dated 22 August 2017 in Matter 2017/5548.
178. The Tribunal makes the following orders:
1. The decision of the delegate of the Respondent in Matter 2017/5548 that there was no present entitlement to compensation benefits under s. 16 and 19 of the SRC Act for ‘ankle sprain (right)’ is affirmed.
2. The decision of the delegate of the Respondent dated 16 March 2018 in Matter 2018/1999, to deny liability to the Applicant under s. 14 of the SRC Act, is set aside.
3. The decision of the delegate of the Respondent in Matter 2018/2760, to deny liability to the Applicant under s. 14 of the SRC Act is set aside.
4. In substitution for the decisions set aside in paragraphs 2 and 3 above the Tribunal decides that, on and from 7 November 2014 the Applicant suffered an aggravation of chronic pain syndrome resulting from a right ankle injury sustained in the course of her employment on 7 November 2014 for which the Applicant is entitled to compensation pursuant to section 14 the SRC Act.

Renumber Paragraph 181 as paragraph 179.

...........[sgd]........................................................
Member R West
Division:GENERAL DIVISION
File Numbers: 2017/5548, 2018/1999 and 2018/2760
Re:Josephine Pito
APPLICANT

AndComcare
RESPONDENT

Decision
Tribunal:

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 Pito and Comcare (Compensation)

Details

AGLC: Pito and Comcare (Compensation) [2019] AATA 1347
Case: [2019] AATA 1347
Decision Date: 20 June 2019

CaseChat Overview and Summary

This matter concerned appeals by the Applicant against decisions of the Respondent, Comcare, which affirmed primary determinations to reject claims for compensation. The Applicant sought review of decisions relating to an ankle sprain sustained on 7 November 2014, and subsequent claims for chronic pain syndrome, chronic regional pain syndrome, and aggravation of adjustment disorder, all allegedly as sequelae to that injury. The core dispute revolved around the scope of the Tribunal's jurisdiction to consider the Applicant's claims, particularly whether it was limited to the specific injury of 7 November 2014 or extended to all employment-related injuries and their resulting incapacities.

The legal issues before the Tribunal included determining whether, under section 14(1) of the *Safety, Rehabilitation and Compensation Act 1988* (SRC Act), the Applicant was suffering from chronic pain syndrome or chronic regional pain syndrome (or their aggravation), and/or aggravation of adjustment disorder, as a sequelae to the right ankle sprain sustained on 7 November 2014. Crucially, the Tribunal was required to ascertain whether these conditions constituted an "injury" as defined by the SRC Act, suffered by the Applicant as an employee, and resulting in death, incapacity for work, or impairment. A significant preliminary issue was the extent of the Tribunal's jurisdiction, specifically whether it could consider the Applicant's entire employment injury history and its consequences, or if its review was confined to the specific injury and conditions identified in the claim dated 7 November 2017.

The Applicant contended that the Tribunal's jurisdiction was not limited to the consequences of the 7 November 2014 injury but extended to all employment injuries that had resulted in incapacity for work, including earlier claims for phlebitis and thrombophlebitis of the lower extremities and sprain of the left knee and leg. The Applicant argued that the Respondent's focus on individual "claims" rather than the "injury" was the source of confusion regarding the Tribunal's jurisdiction. The Tribunal acknowledged these submissions and reserved its decision on the jurisdictional question until after hearing evidence at the substantive hearing, indicating that the scope of its review was a central point of contention.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

This claim defines the scope of the Tribunal’s jurisdiction in matters 2018/1999 and 2018/2760, that is, to determine on review whether under s. 14(1) of the SRC Act at the date of the claim on 7 November 2017 the Applicant was suffering chronic pain syndrome or chronic regional pain syndrome (or their aggravation) and/or aggravation of adjustment disorder as a sequelae to the ankle sprain (right) injury sustained by the Applicant on 7 November 2014; and whether any or all of these conditions are an injury, as defined in the SRC Act, suffered by the Applicant as an employee and which has resulted in death, incapacity for work or impairment.Applicant’s Evidence The Applicant gave evidence that she is 53 years old. She holds a Bachelor of Arts degree and a Diploma of Education. She has two adult daughters with whom she lives. She took ill-health retirement on 15 November 2017 and is currently in receipt of a disability support pension. She had a fall while working for the Moreland Council in 1989 for which she claimed workers compensation under the Victorian state scheme. From 1990 until 1999 she worked as an emergency teacher with the Victorian Department of Education. The Applicant joined the National Australia Bank as a teller in 1999 and during that employment sustained an injury to her shoulder, head and left hip when she slipped on some stairs. She was treated by Dr Chan, her general practitioner, and prescribed Panadeine Forte. She was referred to Dr Clayton Thomas in 2000 for assistance with pain management. She was off work for around two years. In 2006 she joined the Australian Public Service working in the Child Support Agency Call Centre located in the Melbourne Central building in the Melbourne CBD. In 2008 she had a mild heart attack. In 2010 she had a fall at Melbourne Central while going for lunch. She slipped on the wet floor and fell onto her knees and had ongoing pain in her left knee as a result. She took a few days off initially and consulted Dr Chan. In June 2012, while in Canberra she had a fall getting out of her car when she slipped on icy ground and sustained an injury to her left side. In October 2013 she was seeing Dr Thomas about ongoing pain in her left knee. She had a fall in a shopping centre when her left knee ‘gave way’. She was prescribed Panadeine Forte and Avanza, and participated in a pain management course at the Dorset Rehabilitation Centre under the supervision of Dr Thomas. She ceased work in 2013 because of the pain and did not resume work until September 2014. She was placed on a return to work program at the DHS office in Broadmeadows. On 7 November 2014 she sustained an injury to her right ankle when a door slammed on her foot as she was entering the Broadmeadows building. She received first aid and remained at work that day, later seeing Dr Chan. The pain from the injury caused her to stop work from time to time and she worked reduced hours. She could not cope with the pain and stopped work in February 2015. In May 2015 she was referred to Dr Thomas and was prescribed pain relief medication. She saw an orthopaedic surgeon in December 2016. She was suffering depression at the time feeling down most days and not coping. She was prescribed Gabapentin which helped the pain but caused her depression to increase and she ceased its use. She participated in a pain management program with the Dorset Rehabilitation Centre run by Dr Thomas.

Decision

Reasons for decision

The Applicant lodged a further claim in relation to Claim 5, which was considered by the Respondent and a primary determination to reject the claim was made on 5 March 2018. This primary determination was affirmed in a reviewable decision of 9 May 2018 (Matter No. 2018/2760). The effect of the Respondent’s second consideration of the claim is identical to the effect of the first considerationDecisions to be reviewed In Matter No. 2017/5548 the Applicant seeks a review of the decision of the delegate of the Respondent dated 22 August 2017[1] affirming the primary determination made on 10 February 2017 that there was no present entitlement to compensation benefits under ss. 16 and 19 of the SRC Act for ‘ankle sprain (right)’. [1] T1 at p.8 In Matter No. 2018/1999 the Applicant seeks a review of the decision of the delegate of the Respondent dated 16 March 2018[2] affirming the primary determination made on 19 January 2018 to deny liability to the Applicant under s. 14 of the SRC Act for chronic pain syndrome and aggravation of adjustment disorder or aggravation thereof. [2] T12.1 at p.458 In Matter No. 2018/2760 the Applicant seeks a review of the decision of the delegate of the Respondent dated 9 May 2018 affirming the primary determination made on 5 March 2018 to deny liability to the Applicant under s. 14 of the SRC Act for chronic pain syndrome or chronic regional pain syndrome (or their aggravation) and aggravation of adjustment disorder. Jurisdiction In the course of the interlocutory stages of these proceedings the parties applied to have the Tribunal determine a matter related to its jurisdiction as a preliminary matter. The parties were directed to file written submissions setting out their respective assertions on the jurisdictional question. The Tribunal gave consideration to these submissions and determined to reserve its decision in relation to the jurisdictional question until after hearing the evidence at the substantive hearing. The Applicant’s submission noted that the Respondent identifies 5 separate claims for compensation made by the Applicant, but asserts that the relevant matter for the Tribunal to consider in determining its jurisdiction is not the claim but the injury. The submission goes on to say:…the continual reference to a ‘Claim’ instead of injury appears to be the source of confusion for what the Respondent understands is the jurisdiction of the Tribunal. Hence, the Respondent suggests that it is the ‘Claim’ that is before the Tribunal. It is not. The Applicant contended that the Tribunal’s enquiry is not limited to the results of just one injury sustained on 7 November 2014 but to all employment injuries that have resulted in incapacity for work,[3] and that the Tribunal’s jurisdiction extended to a consideration of all the history and the sources of incapacitation. This included a ‘phlebitis and thrombophlebitis of lower extremities’ (Claim 2) and ‘sprain of unspecified site of knee and leg (left)’ (Claim 3). [3] at paragraph 54 of their ASOFIC

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.