Ramirez-Gamonal and Comcare (Compensation)

Case [2019] AATA 3321

Ramirez-Gamonal and Comcare (Compensation) [2019] AATA 3321 (6 September 2019)

Division:GENERAL DIVISION

File Number(s):      2017/5611

Re:Carlos Ramirez-Gamonal

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Mr S. Webb, Member Presiding
Dr P. Fricker OAM, Member

Date:6 September 2019

Place:Canberra

The decision under review is set aside, in place thereof the Tribunal decides that, as of 10 May 2017 and presently, Mr Ramirez-Gamonal’s accepted left foot injury is ongoing and he is entitled to compensation under s 16 and s 19 of the Safety, Rehabilitation and Compensation Act 1988 (the Act).

The matter is remitted to Comcare to determine specific entitlements under these sections that may be payable to Mr Ramirez-Gamonal, if any.

The parties have not been heard in relation to orders for costs. Written submissions on this subject may be made within 14 days. Should no such submissions be received within this period, as Mr Ramirez-Gamonal’s application has been successful, under s 67(8) of the Act, the Tribunal will order Comcare to pay his reasonable costs in these proceedings as agreed or taxed.

........................................................................

Mr S. Webb, Member Presiding

WORKERS’ COMPENSATION – accepted left foot injury – plantar fasciitis – decision denying present liability for medical treatment expenses and incapacity for work compensation payments – nature of accepted injury – meaning of ‘injury’, ‘ailment’ and ‘disease’ – examination of physiological changes and factors contributing to onset symptoms – inflammation – evidence of micro traumas and pathophysiological changes  – employment duties a significant contributing factor – persistence of symptoms and physiological changes – examination of contributory causes – persistence of ‘injury’ resulting in impairment and incapacity – liability to pay compensation – purposive construction of ‘results from’, ‘as a result of’ and ‘in relation to’ standards of causation - standards of causation for purposes of determining liability or entitlement not to be conflated with definitional tests for the purposes of determining the existence of an ‘injury’ – partial incapacity for work ‘as a result of’ an ‘injury’ – medical treatment ‘in relation to an injury’ – entitlement to compensation continues - decision set aside

Safety, Rehabilitation and Compensation Act 1988, s 4, 5A, 5B, 8, 14, 16, 19, 54, 67

Cases

Australian Postal Corporation v Oudyn [2003] FCA 318
Canute v Comcare [2006] HCA 47
Casarotto v Australian Postal Corporation [1989] FCA 116
Comcare v Martin [2016] HCA 43
Comcare v Power [2015] FCA 1502
Commonwealth of Australia v Keith Colville Smith [1989] FCA 189
Howard v Comcare [2019] FCA 1031
Howes v Comcare [2016] FCA 1521
Lees v Comcare [1999] FCA 753
Military Rehabilitation and Compensation Commission v May [2016] HCA 19
Prain v Comcare [2017] FCAFC 143
Salisbury v Australian Iron and Steel Ltd (1943) 44 SR (NSW) 157

Telstra Corporation Ltd v Hannaford [2006] FCAFC 87

REASONS FOR DECISION

Mr S. Webb, Member Presiding
Dr P. Fricker OAM, Member

6 September 2019

  1. Working as a visitor host at the National Museum of Australia (the Museum), Carlos Ramirez-Gamonal experienced pain in his left heel. Initially, he thought…

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AGLC
Ramirez-Gamonal and Comcare (Compensation) [2019] AATA 3321
Case
[2019] AATA 3321
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal by Mr Ramirez-Gamonal against a determination by Comcare that he was not entitled to compensation for medical treatment expenses and incapacity for work from 10 May 2017 onwards. The dispute centred on whether Mr Ramirez-Gamonal's employment continued to significantly contribute to his left foot ailment, which was diagnosed as plantar fasciitis. The case was heard by Mr S. Webb, Member Presiding.

The primary legal issue before the Tribunal was to determine whether Mr Ramirez-Gamonal's employment continued to significantly contribute to his ongoing symptoms of left plantar fasciitis, thereby entitling him to compensation for medical treatment and incapacity for work under sections 16 and 19 of the relevant Act. Comcare argued that the employment's contribution to the ailment had diminished to a point where it was no longer significant, thus negating any entitlement to compensation from 10 May 2017.

The Tribunal found that Comcare's argument that Mr Ramirez-Gamonal's left foot ailment had resolved by 10 May 2017 was not supported by the evidence. The majority of medical evidence indicated a diagnosis of left plantar fasciitis, and the Tribunal accepted Mr Ramirez-Gamonal's evidence that symptoms first occurred at work and worsened over time. The Tribunal considered one report suggesting resolution to be unreliable due to concerns about the examination process. It concluded that the ailment was chronic and ongoing, and that its symptoms required medical treatment and resulted in incapacity for work both before and after 10 May 2017, particularly as Mr Ramirez-Gamonal relied more heavily on his left lower limb after injuring his right knee.

Consequently, the Tribunal set aside Comcare's decision and determined that Mr Ramirez-Gamonal was entitled to compensation under sections 16 and 19 of the Act as of 10 May 2017 and presently. The matter was remitted to Comcare to assess and determine the amounts of compensation payable. The Tribunal also indicated that it would order Comcare to pay Mr Ramirez-Gamonal's reasonable costs of the proceedings if no submissions were made regarding costs within 14 days.

Orders

Orders of the court

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Background

Background to the litigation

Prior to hearing, Comcare made clear its intention to assert the correctness of its primary determination, denying present entitlement to compensation for medical treatment expenses and incapacity for work as of 10 May 2017. The hearing proceeded on that basis.FACTS Mr Ramirez-Gamonal is 56 years old. He commenced employment as a Visitor Services Host with the Museum on 29 June 2007.[1] This employment was part time on a rostered basis, working a set number of hours in every four-week period. Generally, he worked 5 days out of every seven, commencing work at 8.45am and finishing at 5.15pm with two 30 minute breaks.[1] T5, folio 24. On 31 August 2012, Mr Hinton, a human resources officer of the Museum, stated that Mr Ramirez-Gamonal worked 94 hours every four weeks, being an average of 23.5 hours each week.[2] On 4 October 2012, Mr Hinton recorded Mr Ramirez-Gamonal’s ‘NW Hrs’ (normal weekly hours) to be “32:57”, which appears to have included 1 hours 57 minutes overtime.[3] The difference between Mr Hinton’s estimates of Mr Ramirez-Gamonal’s pre-injury hours has not been explained. Mr Hinton was not called to give evidence. Mr Ramirez-Gamonal’s evidence is that he worked an average of 31 hours each week, totalling 124 hours every four weeks. Comcare accepts that this is correct. It appears, however, that this figure excludes overtime, averaging 1 hour and 57 minutes each week.[2] T11.[3] T17, folio 62. Little turns on this presently as, for the purposes of calculating Mr Ramirez-Gamonal’s entitlements to compensation for incapacity under s 19 of the Act, his ‘normal weekly hours’ and ‘normal weekly earnings’ amounts were calculated under s 8 of the Act on the basis of 32.57 hours per week, including an average weekly component of 1 hour 57 minutes overtime.[4][4] See, for example, T17, folio 62; T29, folio 83; and T283, folio 617. Mr Ramirez-Gamonal’s Visitor Services Host duties were, broadly, to assist visitors to the Museum and to conduct tours of galleries and exhibits in the Museum.[5] Particular details of his duties varied in the different work areas of the Museum. These are set out in an attachment to Mr Hinton’s letter.[6] Mr Ramirez-Gamonal explained that his duties involved a lot of walking and standing: by his estimate, 80% to 95% of his working hours. We accept his uncontroverted evidence on this point. There is, however, some controversy over the extent to which he sat down during his work. Much was said about Mr Ramirez-Gamonal’s ability to sit in the parts of the Museum in which he worked. His evidence is that he refrained from sitting down because doing so was not possible when dealing with visitors and when the Museum was busy, and it was frowned upon by management when visitors were present. We accept that he was able to sit from time to time while performing his duties, especially when the Museum was not busy, or when performing duties that involved a seated role. Nonetheless, we also accept that he perceived, rightly or wrongly, that sitting down while performing his usual ambulatory or standing duties was frowned upon - his evidence on this point is supported by the 28 June 2016 report of Dr McBurnie, an occupational physician.[7] [5] Ibid, folio 6.[6] T12.[7] T253, folio 538.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Mr Ramirez-Gamonal is entitled to compensation under s 16 in respect of medical treatment and under s 19 in respect of partial incapacity for work as of 10 May 2017 and presently. DECISION The decision under review is set aside. In place thereof, the Tribunal decides that, as of 10 May 2017, Mr Ramirez-Gamonal is entitled to compensation under s 16 and s 19 of the Act. The matter is remitted to Comcare to assess and determine the amounts of compensation payable to Mr Ramirez-Gamonal. The parties have not yet fully been heard as to costs, however. Each will have 14 days in which to make written submissions addressing this issue, if they choose to do so. If no such submissions are received within this period, as Mr Ramirez-Gamonal’s application has been successful, the Tribunal will then order, forthwith, that Comcare is to pay Mr Ramirez-Gamonal’s reasonable costs of these proceedings, as agreed or taxed.

Ratio Decidendi

Legal Principle Established

Comcare’s central argument is that, for an entitlement to compensation to exist, there must be an ‘injury’, and where the ‘injury’ is in the form of a ‘disease’, it must be established that the employment continues to significantly contribute to the underlying ‘ailment’. From this it follows, so the argument goes, that for compensation to be payable under s 16 or s 19 of the Act, it must be established that the employment significantly contributes to the ongoing symptoms of the underlying ailment that require medical treatment or are productive of incapacity for work. It is on this reasoning that Comcare asserts Mr Ramirez-Gamonal had no entitlement to compensation under s 16 and s 19 from 10 May 2017 to the present – the degree to which his employment contributed to his left foot ailment had diminished, or had been pushed into the background or overtaken by other factors, to the extent it was no longer significant. CONSIDERATIONAilment To the extent that Comcare argues Mr Ramirez-Gamonal’s left foot ailment resolved by 10 May 2017, we do not agree. The word ‘ailment’ is given meaning by s 4(1) of the Act –ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development). The preponderant weight of medical evidence, including the evidence of Dr Perera, Dr Edwards, Dr Fitzgerald, Dr Stubbs (first report[77]), Dr Aubin, Dr McBurnie, Dr Wilkins, Dr Watson and Mr Hotchkis, supports a diagnosis of left plantar fasciitis. We are reasonably satisfied that diagnosis is made out.[77] T200. We accept Mr Ramirez-Gamonal’s evidence that symptoms first occurred in his left foot while he was at work on or about 2 July 2012, and these symptoms became worse over the following days when dealing with large groups of school children during the school holidays. The only evidence that symptoms of left plantar fasciitis resolved completely is found in the second report of Dr Stubbs,[78] about which there is some controversy. For reasons we have outlined in paragraphs 54 to 57 above, Mr Ramirez-Gamonal’s allegations that Dr Stubbs examined his right foot instead of his left, and the doctor’s examination was cursory and dismissive, raise serious concerns about the manner in which Dr Stubbs examined him, to the extent that we consider Dr Stubbs’ report of this examination unreliable. For this reason, we are not inclined to give this report of Dr Stubbs any significant weight.[78] T281. We prefer the evidence of Dr Aubin, Dr McBurnie, Dr Pellemer, Dr Wilkins, Dr Watson and Mr Hotchkis and find that the symptoms of Mr Ramirez-Gamonal’s left plantar fasciitis did not resolve on or before 10 May 2017, rather the ailment was chronic and it is presently ongoing. Furthermore, As Dr Watson’s clinical notes and medical certificates clearly reveal, the ailment was productive of symptoms that required medical treatment and resulted in incapacity for work prior to, on and after 10 May 2017. On his evidence, Mr Ramirez-Gamonal’s plantar fasciitis symptoms increased after he injured his right knee, relying more heavily on his left lower limb.