Re Oliver and Comcare

Case [2018] AATA 1964

Oliver and Comcare (Compensation) [2018] AATA 1964 (29 June 2018)

Division:GENERAL DIVISION

File Number(s):      2017/3257

Re:Catrina Oliver

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Deputy President Gary Humphries

Date:29 June 2018

Place:Canberra

The Applicant's application in matter 2017/3257 is dismissed pursuant to s 42B of the Administrative AppealsTribunal Act 1975.

........................................................................
Deputy President Gary Humphries

Catchwords

PRACTICE AND PROCEDURE – s 42B of the Administrative Appeals Tribunal Act 1975 – dismissal of proceedings if there are no reasonable prospects of success – Tribunal entitled to assess the strength of case based on material before it – Tribunal not satisfied that the Applicant has evidence of sufficient quality and weight to succeed at a hearing – Application dismissed

PRACTICE AND PROCEDURE – release from an implied undertaking

Legislation

Administrative Appeals Tribunal Act 1975 ss 42B

Federal Court of Australia Act 1976 s 31A

Safety, Rehabilitation and Compensation Act 1988 ss 14, 37

Cases

Comcare v Wuth [2018] FCAFC 13
Chin and Comcare [2017] AATA 634
Filsell and Comcare [2009] AATA 90
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd and Others [2008] FCAFC 60
Kanan v Australian Postal and Telecommunications Union (1992) 43 IR 257
LMFP and Comcare [2017] AATA 1512
Military Rehabilitation and Compensation Commission v May [2016] HCA 19
MRCC v May (2016) 257 CLR 468
Novosel v Comcare [2017] FCA 722
Spencer v Commonwealth of Australia [2010] HCA 28

Warner and Comcare [2017] AATA 2709

Secondary Material

Explanatory Memorandum, Tribunals Amalgamation Bill 2014

REASONS FOR DECISION

Deputy President Gary Humphries

29 June 2018

INTRODUCTION

  1. The Applicant, Ms Catrina Oliver has brought three applications for merits review before the Tribunal, all relating to injuries she says she incurred in the course of her employment. This is an interlocutory application by Comcare for dismissal of one of those applications, pursuant to s 42B(1) of the Administrative Appeals Tribunal Act 1975 (the AAT Act), on the basis that it has no reasonable prospect of success.

  2. Section 42B(1) allows the Tribunal to dismiss an application for review of a decision, at any stage of a proceeding, if it is satisfied that the application:

    (a)is frivolous, vexatious misconceived or lacking in substance;

    (b)has no reasonable prospect of success; or

    (c)is otherwise an abuse of process of the Tribunal.

    BACKGROUND

  3. The following factual background was submitted by the parties to the Tribunal.

  4. Ms Oliver is, and was at all relevant times, employed with the Department of Social Services (the DSS). She has an accepted workers compensation claim in respect of an unspecified disorder of synovium, tendon and bursa (left) and wrist sprain (left)[1] (the compensable conditions) with a date of injury of 30 July 2012.

    [1] In this decision, italicised text is generally used to indicate direct quotations.

  5. Ms Oliver has two proceedings before the Tribunal which relate to the compensable conditions. Those applications are:

    (i)Application 2016/4926 which relates to…

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AGLC
Re Oliver and Comcare [2018] AATA 1964
Case
[2018] AATA 1964
Decision Date

CaseChat Overview and Summary

This matter concerned an application before the Administrative Appeals Tribunal (AAT) by Ms Oliver, who sought review of a decision by Comcare. Ms Oliver had an accepted workers' compensation claim for a left wrist condition. She also claimed a secondary overuse injury to her right shoulder and wrist, alleging this arose from not being able to use her left wrist. Comcare had affirmed a decision that Ms Oliver's claimed right-sided conditions were not injuries or diseases prescribed under the relevant Act, nor were they secondary to her accepted left wrist condition. Comcare sought to have Ms Oliver's application dismissed under section 42B of the Administrative Appeals Tribunal Act 1975, arguing it had no reasonable prospect of success.

The AAT was required to determine whether Ms Oliver's application for review had no reasonable prospect of success, thereby permitting its dismissal under section 42B of the AAT Act. This involved assessing the quality and weight of the evidence presented by Ms Oliver in support of her claim that her right shoulder and wrist pain was a consequence of her accepted left wrist injury. The Tribunal also had to consider an interlocutory issue regarding the use of expert reports, specifically whether the use of Professor Youssef's reports breached an implied undertaking not to use documents produced in other proceedings for purposes other than those for which they were given.

The Tribunal considered the extensive medical evidence, which included reports from various medical professionals and imaging results. This evidence generally indicated normal findings for Ms Oliver's right shoulder and wrist, with some reports noting reduced grip strength in the right wrist at one point, but later normal grip strength and full range of movement. Crucially, Dr Thai's report suggested that Ms Oliver's right-sided shoulder and neck pain were likely referred pain from her cervical spine, unrelated to employment, and that symptoms would have developed regardless of her favouring her right arm. The Tribunal found that the evidence did not demonstrate a sufficient link between Ms Oliver's claimed right-sided conditions and her accepted left wrist injury, nor did it establish that the conditions were employment-related. The Tribunal also noted that Comcare had been released from the implied undertaking concerning Professor Youssef's reports.

The Tribunal concluded that Ms Oliver had not provided evidence of sufficient quality and weight to establish that her claimed right-sided conditions were a consequence of her accepted left wrist injury or arose from her employment. Consequently, the Tribunal was satisfied that the application had no reasonable prospect of success and ordered that the application be dismissed.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Section 42B(1) allows the Tribunal to dismiss an application for review of a decision, at any stage of a proceeding, if it is satisfied that the application:(a)is frivolous, vexatious misconceived or lacking in substance; (b)has no reasonable prospect of success; or(c)is otherwise an abuse of process of the Tribunal.BACKGROUND The following factual background was submitted by the parties to the Tribunal. Ms Oliver is, and was at all relevant times, employed with the Department of Social Services (the DSS). She has an accepted workers compensation claim in respect of an unspecified disorder of synovium, tendon and bursa (left) and wrist sprain (left)[1] (the compensable conditions) with a date of injury of 30 July 2012. [1] In this decision, italicised text is generally used to indicate direct quotations. Ms Oliver has two proceedings before the Tribunal which relate to the compensable conditions. Those applications are:(i)Application 2016/4926 which relates to a decision under s 37(1) of the Safety, Rehabilitation and Compensation Act 1988 (the Act) requiring her to undertake a rehabilitation program commencing on 14 July 2016. (ii)Application 2017/0156 which relates to a suspension of her rights under section 37(7) of the Act for refusing or failing to undertake the rehabilitation program the subject of application 2016/4926 without reasonable excuse. A third application before the Tribunal also relates, she says, to her compensable conditions. It arose in the following way. On 14 November 2016, a workplace hazard and incident form was filed by Ms Oliver. She described the so-called hazard or incident as a secondary overuse injury as a result of not using her left wrist. Ms Oliver stated that her right shoulder and wrist had become extremely painful to the point that she was unable to fully function at work, and was limiting her functioning in her daily life. On 8 December 2016, Ms Oliver submitted a workers compensation claim with respect to her right shoulder and wrist. She claimed for a secondary overuse injury resulting from not being able to use her left wrist/arm. She stated that she first noticed symptoms on 1 October 2015, and first sought medical treatment on 14 October 2015 from Dr Tehmina Rauf-Rahim, general practitioner. On 23 December 2016, an employer statement was provided for, or on behalf of, the DSS by Ms Bernadette Shanks, Director, in response to Ms Oliver’s claim. Ms Shanks advised that the DSS considered there was doubt regarding the diagnosis and pathology of the claimed condition, as well as its causation. Ms Shanks noted that there was no specific workplace incident which caused the claimed condition, and that Ms Oliver had made complaints of right wrist, elbow and shoulder pain during her maternity leave in the period from 1 September 2014 to 22 June 2015. Ms Shanks summarised those instances as follows:(i)On 31 May 2015, Catherine Riddel, physiotherapist, stated Catrina reports recent occasions of right arm and shoulder pain due to protecting her left arm.(ii)In a medical certificate dated 3 June 2015, Dr Rauf-Rahim stated R wrist pain, R elbow and R shoulder pain.

Evidence

Evidence Before The Court

Ms Oliver lodged an application for review of the reviewable decision with the Tribunal on 2 June 2017. It is this application which Comcare submits ought to be dismissed under s 42B of the AAT Act.THE MEDICAL EVIDENCE An MRI of Ms Oliver’s right wrist on 30 August 2012 showed mild tenosynovitis of the extensor carpi ulnaris tendon in the ulnar styloid. There was no other abnormality in the wrist. On 12 September 2012, Ms Lenore Gunning, occupational therapist, reported that Ms Oliver had experienced pain in the right forearm extensor origin in excess of two years ago. On 31 July 2013, Ms Gunning reported that Ms Oliver had been experiencing right upper limb pain which she – Ms Oliver – attributed to increasing use while managing the left wrist condition. On 15 August 2013, Ms Kristine Lew, physiotherapist, did not place an indicator in a body chart for right upper limb discomfort. Ms Lew observed that the ranges of movement in Ms Oliver’s right shoulder and wrist were normal. Her grip strength in the right wrist was reported as reduced. However, on 18 October 2013, Ms Lew reported that grip strength in her right wrist was normal and there continued to be a normal range of movement in her right wrist. In a medical certificate dated 8 July 2014, Dr Rauf-Rahim noted that Ms Oliver was complaining of left wrist pain and tingling and numbness which were associated with right wrist pain too. On 13 August 2014, Dr Matthew Paul, occupational physician, observed that there was a full range of movement in her right wrist. On 31 May 2015, Ms Riddel noted that she reported recent occasions of right arm and shoulder pain due to protecting her left arm. On 19 October 2015, Dr Schalk Willem van der Merwe, general specialist, reported that an x-ray of Ms Oliver’s right shoulder, specifically the glenohumeral and acromioclavicular joints, appeared unremarkable. Dr van der Merwe advised that no bone or joint abnormality was noted. Dr van der Merwe advised that there was no abnormality noted on ultrasound of Ms Oliver’s supraspinatus, infraspinatus, subcapularis, biceps and visualised portions of the triceps muscles. Dr van der Merwe advised that no bursal abnormality was noted. In a medical certificate dated 11 November 2016, Dr Rauf-Rahim asserted that a bone scan showed increased uptake of the right acromioclavicular joint. On 18 January 2017, Dr Thai reported the following:(i)Ms Oliver told Dr Thai that she had right sided intermittent shoulder pain since returning from maternity leave in June 2015. She described the pain in the posterior shoulder girdle radiating up to the neck and down the forearm into the wrist on the right side. She suffered from posterior shoulder pain, referred from the cervical spine.(ii)But the above complaints were made in the absence of abnormal findings on right shoulder X-ray and ultrasound.(iii)Dr Thai observed that Ms Oliver had a full range of movement in the right shoulder, making the diagnosis of RSI of the right shoulder unlikely. (iv)He considered that her right-sided posterior shoulder and neck pain were related to referred pain from the cervical spine. (v)Dr Thai advised that there were no employment-related factors identified as contributing to Ms Oliver’s right posterior shoulder pain. He noted that she did not perform repetitive tasks at work that were likely to exacerbate shoulder pain. He considered that her symptoms would have developed in any event. Dr Thai advised that it would be difficult to argue that Ms Oliver’s symptoms related to her favouring the right arm.

Decision

Reasons for decision

Ms Oliver sought reconsideration of the determination on 2 March 2017. On 13 April 2017, Comcare made a reviewable decision (the reviewable decision) that affirmed the determination. Comcare was not satisfied that she had an injury or disease as prescribed under the provisions of the Act or that her experience of pain was secondary to her compensable conditions. Ms Oliver lodged an application for review of the reviewable decision with the Tribunal on 2 June 2017. It is this application which Comcare submits ought to be dismissed under s 42B of the AAT Act.THE MEDICAL EVIDENCE An MRI of Ms Oliver’s right wrist on 30 August 2012 showed mild tenosynovitis of the extensor carpi ulnaris tendon in the ulnar styloid. There was no other abnormality in the wrist. On 12 September 2012, Ms Lenore Gunning, occupational therapist, reported that Ms Oliver had experienced pain in the right forearm extensor origin in excess of two years ago. On 31 July 2013, Ms Gunning reported that Ms Oliver had been experiencing right upper limb pain which she – Ms Oliver – attributed to increasing use while managing the left wrist condition. On 15 August 2013, Ms Kristine Lew, physiotherapist, did not place an indicator in a body chart for right upper limb discomfort. Ms Lew observed that the ranges of movement in Ms Oliver’s right shoulder and wrist were normal. Her grip strength in the right wrist was reported as reduced. However, on 18 October 2013, Ms Lew reported that grip strength in her right wrist was normal and there continued to be a normal range of movement in her right wrist. In a medical certificate dated 8 July 2014, Dr Rauf-Rahim noted that Ms Oliver was complaining of left wrist pain and tingling and numbness which were associated with right wrist pain too. On 13 August 2014, Dr Matthew Paul, occupational physician, observed that there was a full range of movement in her right wrist. On 31 May 2015, Ms Riddel noted that she reported recent occasions of right arm and shoulder pain due to protecting her left arm. On 19 October 2015, Dr Schalk Willem van der Merwe, general specialist, reported that an x-ray of Ms Oliver’s right shoulder, specifically the glenohumeral and acromioclavicular joints, appeared unremarkable. Dr van der Merwe advised that no bone or joint abnormality was noted. Dr van der Merwe advised that there was no abnormality noted on ultrasound of Ms Oliver’s supraspinatus, infraspinatus, subcapularis, biceps and visualised portions of the triceps muscles. Dr van der Merwe advised that no bursal abnormality was noted. In a medical certificate dated 11 November 2016, Dr Rauf-Rahim asserted that a bone scan showed increased uptake of the right acromioclavicular joint. On 18 January 2017, Dr Thai reported the following:(i)Ms Oliver told Dr Thai that she had right sided intermittent shoulder pain since returning from maternity leave in June 2015. She described the pain in the posterior shoulder girdle radiating up to the neck and down the forearm into the wrist on the right side. She suffered from posterior shoulder pain, referred from the cervical spine.(ii)But the above complaints were made in the absence of abnormal findings on right shoulder X-ray and ultrasound.(iii)Dr Thai observed that Ms Oliver had a full range of movement in the right shoulder, making the diagnosis of RSI of the right shoulder unlikely. (iv)He considered that her right-sided posterior shoulder and neck pain were related to referred pain from the cervical spine. (v)Dr Thai advised that there were no employment-related factors identified as contributing to Ms Oliver’s right posterior shoulder pain. He noted that she did not perform repetitive tasks at work that were likely to exacerbate shoulder pain. He considered that her symptoms would have developed in any event. Dr Thai advised that it would be difficult to argue that Ms Oliver’s symptoms related to her favouring the right arm.

Ratio Decidendi

Legal Principle Established

French CJ and Gummow J stated at [24]–[25]:[24] The exercise of powers to summarily terminate proceedings must always be attended with caution. That is so whether such disposition is sought on the basis that the pleadings fail to disclose a reasonable cause of action or on the basis that the action is frivolous or vexatious or an abuse of process. The same applies where such a disposition is sought in a summary judgment application supported by evidence. As to the latter, this Court in Fancourt v Mercantile Credits Ltd said:“The power to order summary or final judgment is one that should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried”.More recently, in Batistatos v Roads and Traffic Authority (NSW) Gleeson CJ, Gummow, Hayne and Crennan JJ repeated a statement by Gaudron, McHugh, Gummow and Hayne JJ in Agar v Hyde which included the following:“Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways, but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way.”There would seem to be little distinction between those approaches and the requirement of a “real” as distinct from “fanciful” prospect of success contemplated by s 31A. That proposition, however, is not inconsistent with the proposition that the criterion in s 31A may be satisfied upon grounds wider than those contained in pre‑existing Rules of Court authorising summary dispositions.[25] Section 31A(2) requires a practical judgment by the Federal Court as to whether the applicant has more than a “fanciful” prospect of success. That may be a judgment of law or of fact, or of mixed law and fact. Where there are factual issues capable of being disputed and in dispute, summary dismissal should not be awarded to the respondent simply because the Court has formed the view that the applicant is unlikely to succeed on the factual issue. Where the success of a proceeding depends upon propositions of law apparently precluded by existing authority, that may not always be the end of the matter. Existing authority may be overruled, qualified or further explained. Summary processes must not be used to stultify the development of the law. But where the success of proceedings is critically dependent upon a proposition of law which would contradict a binding decision of this Court, the court hearing the application under s 31A could justifiably conclude that the proceedings had no reasonable prospect of success. (Footnotes omitted)CONSIDERATIONThe implied undertaking and Prof Youssef The Tribunal will deal firstly with an interlocutory issue. Ms Oliver took objection to the Tribunal using the reports of Prof Youssef. It was said that Prof Youssef’s opinion was formed using documents produced in other proceedings before the Tribunal, such that their use constituted a breach of the implied undertaking not to use such material for any purpose other than that for which it was given. Comcare told the Tribunal that Prof Youssef’s reports were produced as part of the claims management of her compensable conditions, and that the Tribunal had previously released Comcare from the implied undertaking for such purposes.