QXQH and Comcare (Compensation) - [2021] AATA 3036

QXQH and Comcare (Compensation) [2021] AATA 3036 (25 August 2021)
Division:GENERAL DIVISION
File Number:2020/2652
Re:QXQH
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Member D Mitchell
Date:25 August 2021
Place:Brisbane

The Tribunal affirms the decision under review.
................[SGD]...............................
Member D Mitchell
CATCHWORD
COMPENSATION – present entitlement – right shoulder condition – whether an injury or disease – whether a physiological change occurred from the incident – whether liability exists in respect of medical treatment, incapacity benefits and household and attendant care – decision under review affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth)
CASES
Comcare v Stefaniak [2020] FCA 560
Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468; [2016] HCA 19
Pearson and Prosegur Australia Pty Ltd (Compensation) [2021] AATA 312
Prain v Comcare [2017] FCAFC 143
Telstra Corporation Limited v Hannaford [2006] FCAFC 87
Williamson and Comcare (Compensation) [2019] AATA 4774
REASONS FOR DECISION
Member D Mitchell
25 August 2021
INTRODUCTION

QXQH (the Applicant) is seeking review of a decision of the Respondent dated 29 April 2020.[1]
[1] Exhibit 1, T Documents, T113, pages 379-394, Reviewable Decision.
The reviewable decision affirmed a determination dated 10 February 2020[2] that decided that the Applicant had no present entitlement to compensation in respect of medical treatment, incapacity benefits and household and attendant care under sections 16, 19 and 29 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act) in respect of the Applicant’s previously accepted condition of ‘partial tear rotator cuff (right)’ with a date of injury of 13 October 2015 (accepted condition).[3]
[2] Exhibit 1, T Documents, T106, pages 340-353, Determination: no present entitlement for partial tear of rotator cuff (right).
[3] Exhibit 1, T Documents, T113, pages 379-394, Reviewable Decision.
BACKGROUND AND CLAIMS HISTORY
The Applicant was employed as an Executive Level 2 Director at the Department of Human Services (now known as Services Australia).[4]
[4] Exhibit 3, Joint Hearing Bundle, R8, Respondent’s Amended Statement of Issues, Facts and Contentions, page 39, paragraph 3.1.
On 19 October 2015, the Applicant reported to his employer that he sustained a right shoulder strain on 13 October 2015 while departing work. The Applicant described the mechanism of how he sustained the injury as “When opening a fire door (Fire Stair 10 – door on the left hand side) – The door stopped suddenly and I felt a sharp pain/tear in my right shoulder.”[5]
[5] Exhibit 1, T Documents, T4, pages 12-13, Incident Report.
On 29 October 2015, the Applicant submitted a claim for workers’ compensation[6] for “Restricted use of Right Shoulder – likely impingement syndrome” with a date of injury as 13 October 2015. The Applicant provided that he first sought medical treatment on                26 October 2015.[7]
[6]     Exhibit 1, T Documents, T6, pages 16-32, Claim for Workers’ Compensation.
[7]     Exhibit 1, T Documents, T6, page 19, Claim for Workers’ Compensation.
On the claim for compensation form, the Applicant provided that he had previously had a similar injury…

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 QXQH and Comcare (Compensation)

Details

AGLC: QXQH and Comcare (Compensation) [2021] AATA 3036
Case: [2021] AATA 3036
Decision Date: 25 August 2021

CaseChat Overview and Summary

The applicant, QXQH, sought compensation from Comcare for medical treatment, incapacity benefits, and household and attendant care under the *Safety, Rehabilitation and Compensation Act 1988* (Cth) (SRC Act). The dispute concerned whether the applicant had a present entitlement to compensation for a partial tear of the rotator cuff in his right shoulder, an injury accepted by Comcare with a date of injury of 13 October 2015. The reviewable decision had affirmed a prior determination that the applicant had no present entitlement to such compensation.

The legal issues before the Tribunal were whether the applicant continued to suffer an injury within the meaning of the SRC Act, and consequently, whether the causative thresholds under sections 5A and 5B of the SRC Act continued to be met. This involved determining if the applicant's ongoing pain and problems with his shoulder and bicep were attributable to the accepted workplace injury, or if they constituted a separate injury for which compensation was payable. The Tribunal was required to consider whether a subsequent injury arising from surgery related to the accepted injury should be treated as a separate injury under section 4(3) of the SRC Act.

The Tribunal reasoned that while the facts of the incident and the acceptance of liability for the initial injury were not in dispute, the core of the matter was a medical question regarding ongoing entitlement. The Tribunal noted that the acceptance of liability for an injury does not preclude a later decision from finding that liability has ceased or ought never to have been accepted, particularly when reviewing whether compensation is payable. The Tribunal considered the applicant's contentions that his current pain was linked to complications from surgeries approved by Comcare, and that this should be treated as a standalone injury. However, based on its findings, the Tribunal rejected the applicant's contention that his present pain and ongoing problems were likely attributable to complications linked to the surgeries and therefore constituted a separate injury under section 4(3) of the SRC Act.

Accordingly, the Tribunal affirmed the decision under review, finding that the applicant did not have a present entitlement to compensation.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The reviewable decision affirmed a determination dated 10 February 2020[2] that decided that the Applicant had no present entitlement to compensation in respect of medical treatment, incapacity benefits and household and attendant care under sections 16, 19 and 29 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act) in respect of the Applicant’s previously accepted condition of ‘partial tear rotator cuff (right)’ with a date of injury of 13 October 2015 (accepted condition).[3] [2] Exhibit 1, T Documents, T106, pages 340-353, Determination: no present entitlement for partial tear of rotator cuff (right).[3] Exhibit 1, T Documents, T113, pages 379-394, Reviewable Decision.BACKGROUND AND CLAIMS HISTORY The Applicant was employed as an Executive Level 2 Director at the Department of Human Services (now known as Services Australia).[4][4] Exhibit 3, Joint Hearing Bundle, R8, Respondent’s Amended Statement of Issues, Facts and Contentions, page 39, paragraph 3.1. On 19 October 2015, the Applicant reported to his employer that he sustained a right shoulder strain on 13 October 2015 while departing work. The Applicant described the mechanism of how he sustained the injury as “When opening a fire door (Fire Stair 10 – door on the left hand side) – The door stopped suddenly and I felt a sharp pain/tear in my right shoulder.”[5][5] Exhibit 1, T Documents, T4, pages 12-13, Incident Report. On 29 October 2015, the Applicant submitted a claim for workers’ compensation[6] for “Restricted use of Right Shoulder – likely impingement syndrome” with a date of injury as 13 October 2015. The Applicant provided that he first sought medical treatment on 26 October 2015.[7][6] Exhibit 1, T Documents, T6, pages 16-32, Claim for Workers’ Compensation.[7] Exhibit 1, T Documents, T6, page 19, Claim for Workers’ Compensation. On the claim for compensation form, the Applicant provided that he had previously had a similar injury for which he had surgery on his right shoulder on 18 December 2006, performed by Dr Robert Creer.[8][8] Exhibit 1, T Documents, T6, page 20, Claim for Workers’ Compensation. On 20 November 2015, liability was accepted for ‘partial tear rotator cuff (right)’ with a date of injury of 13 October 2015.[9][9] Exhibit 1, T Documents, T11, page 40, Determination accepting claim for partial tear of rotator cuff (right). The Applicant accessed various treatments, including physiotherapy, steroid injections, imaging, investigations, pain management, reviews with multiple specialists and his general practitioner, as well as incapacity benefits and household services.[10][10] Exhibit 3, Joint Hearing Bundle, R8, Respondent’s Amended Statement of Issues, Facts and Contentions, page 40, paragraph 3.4. On 7 June 2016, the Applicant underwent a right shoulder arthroscopy and rotator cuff repair under Dr Maurizio Damiani, orthopaedic surgeon.[11] The principal findings at operation were:[12][11] Exhibit 1, T Documents, T26 pages 77-82, Operation Report of Dr Damiani.[12] As summarised by Dr Burke at Exhibit 1, T Documents, T85, page 253, Report of Dr Burke.·Evidence of progressive osteoarthritis in the glenohumeral joint.·Severe degeneration of the posterior labrum and uncovering of the bone on the back of the glenoid.·Uncovering of bone on the humerus posteriorly and anterosuperiorly.·Long head of biceps was stable in the groove and had no significant tendinosis.·No significant labral tear.·The previous labral tear was intact but degenerative.·Severe tendinosis involving the supraspinatus and infraspinatus which was debrided.·Bony ossicles within the rotator cuff.·The quality of the tendon was poor.

Evidence

Evidence Before The Court

At Hearing the Applicant told the Tribunal that:[55][55] Transcript, pages 6-10.·The injury occurred on 13 October 2015 and since that date the Respondent accepted his claim and approved surgeries.·He had regularly kept in contact providing updates on his condition following the operation on 7 June 2016.·He contends that the injury occurred as a result of a faulty door closer which was malfunctioning on the door. He had sought legal advice regarding the possibility of compensation.·Regardless of whether or not this is an injury or a disease, the fact is that the door was the cause of his injury. Up until that point he had “absolutely zero problems with that shoulder. None whatsoever.” (Reference being to the Applicant’s right shoulder).·Since 13 October 2015 he had had two significant operations, at least six MRI scans and different x-rays, approximately five sessions of guided cortisone injections, attended countless physiotherapy and pool sessions, been prescribed Panadeine Forte to assist with the ongoing pain and attended three or four independent specialist appointments.·He accepts the proposition that the degenerative changes in his right shoulder are in part due to his age, genetics, et cetera, however considers it is also highly likely that a secondary cause of degeneration can be attributed to the incident in 2015.·He considers it was unreasonable to cease ongoing entitlements, noting there were underlying medical issues which remain partially treated to date. ·“Whilst my current and ongoing pain may not be considered to be directly related to the incident in October 2015, I’ve included medical evidence which indicate the ongoing problems which my shoulder and bicep are likely to be attributed to complications linked to both surgeries, as performed by Dr Damiani.”·Dr Tunggal stated during his appointment that the ongoing pain in his bicep are inconsistent with any degenerative disease, and more likely to be overtightening of the biceps.·“On the balance of probabilities, the current situation associated with my shoulder is likely to be attributed to the workplace incident, and subsequent operations and treatments which Comcare accepted liability for, workplace – and approved the subsequent operations and treatments. It would be unreasonable – and I reiterate again, it was unreasonable to cease entitlements, knowing that there were underlying issues. I’ll just make a statement here – where a compensable injury gives rise to a subsequent injury that satisfies the definition of an injury in section 4 of the Act, that subsequent injury is to be treated as a separate injury, with all entitlement of a separate injury. And I’m going to argue that this injury to my bicep is actually a sequela of – a consequence of the operation and the incident that occurred following waking up at night and – after the second operation.”·Dr Damiani in his report of 22 February 2017 provided that the surgery was a result of the workplace injury and the reason was that: “Whilst the opening of the door did not result in the requirements for a bicep tenodesis surgery, it seems that a complication of that surgery, that was covered by his insurance – as mentioned, he had a severe jolt in the weeks after the surgery – and there is a likelihood that this has caused further injury.” However, this was not considered or mentioned in any of the medical correspondence by Dr Steadman.·Dr Burke’s report of 30 July 2018 confirmed that there appeared to be some relationship between the previous incident and subsequent operation. He said: “It would be reasonable to apportion 50 per cent to pre-existing degenerative changes, and 50 per cent to the workplace incident.”·As a qualified risk assessor, he considers that it is highly likely that on the balance of probabilities that the workplace incident in October 2015 was, in fact, inherently linked to the complications associated with the surgeries performed by Dr Damiani.·In his view Dr Steadman, had not provided definitive medical evidence to support or deny his injuries relationship to the original incident.·When asked why he had not sought a further opinion from Dr Damiani, said that he had moved from Canberra to the Sunshine Coast between November 2017 and December 2020, so he went and saw Dr Tunggal. Dr Tunggal then sent him for three separate cortisone injections in different areas to try and determine and rule out the more likely areas of ongoing pain. The result was that his right bicep tendon is more than likely to have been overtightened during the operation, or during Dr Damiani’s second operation in March 2017. He reported ongoing and consistent pain from the date of the second operation right through to the very end, and up until today.·He accepts that he did have surgery on his right shoulder in December 2006. In relation to that injury, he does not know what caused it.Evidence of Professor Steadman

Decision

Reasons for decision

Based on the Tribunal’s findings, the Applicant’s contention that his present pain and ongoing problems with his shoulder and bicep were likely to be attributed to complications linked to the surgeries performed by Dr Damiani and therefore should be considered as a standalone injury pursuant to section 4(3) of the SRC Act is not accepted.CONCLUSION Accordingly, the decision under review is affirmed.

Ratio Decidendi

Legal Principle Established

In closing submissions, the Applicant provided the following contentions:[59]·In regards to Dr Tunggal and Dr Lewington’s reports, they could not be pursued as further treatment could not be pursued because the Respondent closed the case.·The jolt is clearly an incident which occurred and is relevant to the ongoing pain associated with the bicep, which can be a complication of surgery, regardless of whether or not he was in a sling.·The estimated recovery timeframes which had been outlined during the Hearing were general statements based on averages and are not specific to his case. ·Whether or not the accepted condition should have been accepted and treatment approved, or whether the surgery contributed to his condition, is irrelevant. The fact is that he pulled on a faulty door on 13 October 2015 and both of his operations were approved by the Respondent.·Where a compensable injury gives rise to a subsequent injury that satisfied the definition of any injury in section 4 of the Act, that subsequent injury is to be treated as a separate injury with all of the entitlements of a separate injury. ·He relies on the reports by Dr Damiani and Dr Burke regarding the attributing factors and degenerative diseases and the 50/50 rule. Regardless of the discrepancy in Dr Burke’s report he has attributed a link.[59] Transcript, pages 31-32.CONSIDERATION The Tribunal notes that there is no dispute in relation to the facts of this matter, it is accepted that the incident reported by the Applicant that occurred on 13 October 2015, occurred and resulted in him experiencing pain for which subsequent treatment was obtained. There is also no dispute that on 20 November 2015, the Respondent accepted liability for ‘partial tear rotator cuff (right)’ with a date of injury of 13 October 2015. The Tribunal accepts that the Applicant has since 13 October 2015 experienced pain in his right shoulder and that in the lead up to and subsequent to the surgery in 2017 pain also in his right bicep. The Applicant continued to report his pain symptoms since the date of injury. The dispute in this matter, however is whether the Applicant has an ongoing entitlement to compensation under the SRC Act, which really is a medical question. The Tribunal notes that for liability to pay compensation in relation to medical treatment, incapacity benefits, and household and attendant care under section 16, 19 and 29 of the SRC Act the Applicant must continue to suffer an injury. This means the causative thresholds provided by section 5A and 5B of the SRC Act must continue to be met.[60] [60] See Prain v Comcare [2017] FCAFC 143. Consequently, simply because liability has been accepted, does not mean that a later decision cannot make new findings of fact that either liability ought never have been accepted for the injury or that liability ceased to have effect. In Telstra Corporation Ltd v Hannaford [2006] FCAFC 87; (2006) 151 FCR 253, Conti J outlined at [59]:59. I would therefore conclude, contrary to the decision of the primary judge, that the AAT below was duly empowered, upon the true construction of the SRA Act [sic] and in the events which happened(i) to make findings of fact that effectively undercut the necessary findings of fact made in the initial or original decision...under s 14 of the SRC Act to accept liability in respect of Mr Hannaford’s claim for compensation; and(ii) to do so in circumstances where the AAT was undertaking its review of whether any compensation should be payable or further payable, for instance under ss 16 and 19 of the SRC Act,... and(iii) to do so in the circumstances further where Telstra’s s 14 decision remained in force to the extent that it had not been actually reversed, and had not been the subject of any adverse review per se by the AAT.