Re Smith and Comcare

Case [2002] AATA 249

DECISION AND REASONS FOR DECISION [2002] AATA 249

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No A1999/424

GENERAL ADMINISTRATIVE  DIVISION       )        No A1999/461 No A2000/10 No A2000/11     
           Re      Stephen SMITH     
  Applicant
           And    COMCARE  
  Respondent

DECISION

Tribunal       Mr G A Mowbray    

Date15 April 2002

PlaceCanberra

Decision      The Tribunal:

  1. Affirms the reviewable decision of 8 December 1999 in matter A2000/10.

  2. Sets aside the reviewable decisions of 30 September 1999 in matter A1999/424 and of 8 December 1999 in matters A1999/461 and A2000/11 and remits these matters to the Respondent for reconsideration in accordance with the following directions:

    From 8 March 1999 the Applicant continued to be incapacitated for work for the purposes of section 19 of the Act;

    the Applicant remained incapacitated for work for the purposes of section 19 of the Act at October 2001;

    suitable employment for the Applicant for the purposes of section 19 of the Act would be administrative, clerical and similar work, without contact duties, within the ACT and surrounding regions;

    the Applicant did not receive an offer of suitable employment after becoming incapacitated for work as a result of the second incident, nor did he fail to accept any such offer;

    after becoming incapacitated for work the Applicant did not receive an offer of suitable employment on condition that he completed a rehabilitation or vocational retraining program;

    the Applicant did not fail to seek suitable employment after becoming incapacitated for work;

    the Applicant is entitled to payment of medical expenses from 24 September 1999  for ongoing treatment including in particular that detailed at paragraph 98 of the reasons for this decision;

    the Applicant is entitled to compensation for the cost of treatment for the psychological condition he suffers as sequelae of his neck sprain.

  3. Orders the Respondent to pay the Applicant's costs in the proceedings for which the reviewable decisions are set aside in paragraph 2, as agreed or taxed.

    ..............................................
      Member

CORRIGENDUM TO DECISION AND REASONS FOR DECISION

Tribunal        :Mr G A Mowbray, Member
Date              :           3 June 2002
Place            :           Canberra

Direction: Pursuant to section 43AA(1) of the Administrative Appeals Tribunal Act 1975 the Tribunal directs that the Registrar alter the text of the statement of reasons for decision in this matter, published 15 April 2002, as follows:

  1. In paragraph 13, by replacing the extract from section 19 of the Safety, Rehabilitation and Compensation Act 1988 with the following extract

    "19 Compensation for injuries resulting in incapacity
    (1) This section applies to an employee who is incapacitated for work as a result of an injury, other than an employee to whom section 20, 21, 21A or 22 applies.
    (2) Subject to this Part, Comcare is liable to pay compensation to the employee in respect of the injury, for each of the first 45 weeks (whether consecutive or otherwise) during which the employee is incapacitated, of an amount calculated using the formula:

    NWE – AE

    where:

    NWE is the amount of the employee's normal weekly earnings; and
    AE is the amount per week…

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AGLC
Re Smith and Comcare [2002] AATA 249
Case
[2002] AATA 249
Decision Date

CaseChat Overview and Summary

Mr Smith, a former employee of the ACT Department of Justice and Community Safety, sought a review of decisions made by Comcare denying him compensation for injuries sustained in two separate incidents during his employment. The key legal issues were the interpretation of the Safety, Rehabilitation and Compensation Act 1988, the effect of "cease liability" determinations, and whether Mr Smith could demonstrate a causal link between the incidents and his psychological condition. The tribunal considered whether Comcare's decisions to cease liability for certain aspects of Mr Smith's injuries were correct and if he was entitled to further medical treatment, including psychological counselling.

The tribunal found that Comcare's "cease liability" determinations did not preclude future claims for compensation for the injuries in question. Instead, these decisions only affected the payment of compensation under specific sections of the Act. The tribunal noted that the medical evidence supported Mr Smith's claim for ongoing treatment, including psychological counselling. Given the severity of his depression and stress, as well as the impact of the incidents on his life, the tribunal concluded that Mr Smith was entitled to the treatment he sought.

In summary, the tribunal set aside Comcare's decisions and ordered that Mr Smith was entitled to further medical treatment, including psychological counselling. The tribunal also directed Comcare to pay Mr Smith's costs associated with the review proceedings.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

At the hearing on 3, 4 and 18 October 2001 Mr Smith was represented by Mr R Crowe instructed by Porter Parkinson and Bradfield, and Comcare by Ms L Gabriel instructed by Phillips Fox.Background In October 1997 Mr Smith commenced employment with the ACT Department of Justice and Community Safety. His duties included transporting prisoners to court, guarding them whilst in court and undertaking work in the Belconnen Remand Centre. On 20 April 1998 in an incident in the cell corridor of the ACT Supreme Court Mr Smith suffered a broken nose, a torn muscle in his left leg and a neck injury (the first incident). Mr Smith filed a claim for compensation with Comcare on 22 April 1998 and Comcare accepted liability for "fracture nasal bones, partial tear (L) biceps femoris and strain to cervical spine". In June 1998 Mr Smith commenced casual work as a youth worker with the ACT Department of Education and Community Services at the Quamby Youth Detention Centre. From 6 August 1998 this became a temporary full-time contract which was eventually extended until 9 December 1998. In a further incident on 6 October 1998 Mr Smith sustained injuries to his toes and neck while attempting to restrain a juvenile during the course of his duties at Quamby (the second incident). Mr Smith lodged a claim for compensation with Comcare on 14 October 1998, which on 23 November 1998 accepted liability for "neck sprain" and "closed fracture of one or more phalanges of foot (Right)". It is not in dispute that these two incidents occurred, nor that they took place in the course of Mr Smith's employment. As indicated above Comcare accepted liability for each incident. On 15 July 1999 Comcare made a determination that Mr Smith was no longer incapacitated as a result of the injuries sustained in the second incident and as such no further benefits were payable to him beyond 8 March 1999. From that date Mr Smith was found to have capacity to undertake other employment so long as it was not highly physical. This determination was affirmed by a reviewable decision on 30 September 1999, review of which was sought with the Tribunal on 18 November 1999. On 12 August 1999 Comcare made a determination denying Mr Smith's claim for psychological counselling for injuries flowing from the second incident on the basis of the medical information then available. This was affirmed by a reviewable decision of 8 December 1999 which is the subject of an application for review of 24 December 1999. Comcare made a determination on 16 August 1999 that from that date Mr Smith was no longer entitled to any compensation under the Act as a result of the first incident. This was affirmed by a reviewable decision on 8 December 1999 and is the subject of an application for review of 11 January 2000. Another reviewable decision on 8 December 1999 affirmed a determination of 24 September 1999 that Mr Smith was not entitled to any further medical treatment for the second incident on the basis of medical evidence available at that time. This decision emphasised that it did not at that point in time cease ongoing liability for medical treatment and Mr Smith remained free to lodge additional medical evidence to support any claim for further medical treatment. On 11 January 2000 Mr Smith also lodged an application for review of this decision with the Tribunal.Legislation

Evidence

Evidence Before The Court

In giving his oral evidence Mr Smith presented as a straightforward individual genuinely trying to give an account of his circumstances as he saw them. Notwithstanding the unfortunate blemishes mentioned above, I in general accept Mr Smith as essentially a reliable and credible witness.The Medical EvidenceDr Foo In February 1999 Dr Foo, who has been Mr Smith's general practitioner since 1995, stated that in his opinion the effects of the neck injury resulting from the first incident were still present and that the second incident had aggravated the original injury (Exhibit S1T90). In a report of 2 April 2001 (Exhibit A14) Dr Foo noted that Mr Smith continued to have symptoms and disabilities related to the second incident injury and that further treatment to his neck was necessary, including facet joint injections. Mr Smith's last consultation with Dr Foo was on 1 May 2001 at which time he was still having treatment from Dr Speldewinde and taking certain medication. In a report of 21 September 2001 (Exhibit A8) Dr Foo said"... he continues to suffer from the effects of injuries of April 1998 and October 1998. The consensus of opinion of his treating specialists is that he is suffering from a cervical dysfunction, probably at the left C2/3 facet joint and at the C7 level. … These tears could interfere with the proper function of those joints and in turn lead to reflex muscular spasms in the other neck muscles. … Added to this is the effect of his anxiety and depression, which normally occurs co-morbidly in chronic pain, on muscular tension."…"His current treatment requirements would include the following: analgesics and non steroidal anti-inflammatories as required, physiotherapy during exacerbations of pain, continuation of the physical therapy program with Dr Speldewinde to its conclusion, and pain management counselling with psychologist."…"He is presently fit for work but with restrictions as laid out in various reports in the past i.e. no heavy physical activity involving heavy lifting, frequent bending, frequent work above shoulder level; no situations where he could be in danger of being attacked again." In his oral evidence Dr Foo added that he also supported the need for facet joint injections as recommended by Dr Speldewinde.Dr Speldewinde Dr Speldewinde, a consultant in rehabilitation, pain and musculoskeletal medicine, first saw Mr Smith on 8 October 1998. Dr Foo had referred Mr Smith on 23 July 1998 for advice on the neck injury resulting from the first incident. Surprisingly there is no mention in the written record of Mr Smith having mentioned the second incident to Dr Speldewinde even though it occurred only two days prior to the consultation. In a report on the consultation (Exhibit S2T12) Dr Speldewinde said· Mr Smith presented with disabling left lower neck pain and intermittent, but more severe left upper neck pain with associated headache· this problem greatly interfered with a number of his activities including semi-professional rugby league· Mr Smith described being far more irritable and felt more aggressive at work· he had a full range of neck movement but left sided tenderness at approximately C7, although the bone scan of the cervical spine was normal· Dr Speldewinde diagnosed possible problems at two levels of the cervical spine· Mr Smith should be assessed for a formal neck strengthening program and a possible local tender point injection· although the prognosis over the next 12 months was good, he was not fit to return to full duties as a custodial officer nor as a semi-professional football player.

Decision

Reasons for decision

In my view the psychological counselling sought by Mr Smith (see for example Exhibits S3T15 and A7) clearly amounts to medical treatment as defined in section 4(1), being "therapeutic treatment obtained at the direction of a legally qualified medical practitioner" (see Comcare v Watson (1997) 73 FCR 273; 24 AAR 516; 46 ALD 481). I find that in the circumstances it is reasonable for Mr Smith to obtain this treatment.Conclusions In these matters I have made findings that lead to the following conclusions In accordance with section 43(1) of the Act the Tribunal decides that The Tribunal orders the Respondent to pay the Applicant's costs in the proceedings for which the reviewable decisions are set aside in paragraph 116 (2), as agreed or taxed.I certify that the 117 preceding paragraphs are a true copy of the reasons for the decision herein of Mr G A MowbraySigned: ..................................................................................... AssociateDate/s of Hearing 3-4, 18 October 2001 Date of Decision 15 April 2002Counsel for the Applicant Mr R Crowe Solicitor for the Applicant Porter Parkinson & Bradfield Counsel for the Respondent Ms L Gabriel Solicitor for the Respondent Phillips Fox

Ratio Decidendi

Legal Principle Established

Testing revealed extremely severe depression, high levels of stress, persecutory ideas, deviation, thinking disorder and impulse expression (Exhibit A7). Dr Fraser treated Mr Smith for depression both in therapeutic sessions over a period of some months and by providing a set of audio tapes for use at home. He concluded that the assaults taken with changes in his relationship with his partner "made for severe stress and trauma". It was only in January 2000 (the time of Dr Fraser's report) that Mr Smith was "starting to move forward and to deal with the results of these occurrences".Consideration of Issues and Findings"Cease liability/effects" decisions In many "cease liability" or "cease effects" decisions made under the Act there appears to be a misunderstanding of the nature and effect of the determination that is made and of the statutory provisions relied upon. The matters before the Tribunal include examples of this. In Re Carson and Telstra Corporation (2001) 33 AAR 351 Deputy President Estcourt stated "49. It would only be a rare case where a reconsideration of the substantive determination under s.14 that Comcare was liable to pay compensation in accordance with the Act would be warranted. Such a case might arise, for example, if it was subsequently discovered that the injury had never in fact occurred or that the person claiming was never in fact an employee.50. In such a case a reconsideration of the s.14 determination under s.62 resulting in a revocation would surely carry with it the result that no future claims in respect of that incident could properly be made, but in other cases, the revocation of a determination under relevant sections would not have the effect of preventing altogether further or other claims for compensation.…55. Telstra by its determination of 21 February 1995 was not, properly understood, denying those findings implicit in the original determination, it was merely determining that, on the available medical evidence, it was no longer liable for payment of medical expenses or incapacity payments.56. That is to say the effect of the determination that "liability in respect of this injury ceased on and from 5 February 1995" was not a decision to "cease liability" altogether or to "cease liability" under s.14, but rather a purported determination to cease the payment of compensation under s.16 and s.19 of the Act.…58. The conclusion I have reached, namely, that at its highest, Telstra's determination only ceased payment of compensation under s.16 and s.19 of the Act and did not effectively revoke the early determination to accept liability under s.14, thereby preventing further claims of compensation being made at a later time, is also consistent with the reasoning of the Full Court in Plumb v Comcare (1992) 39 FCR 236." Implicit support for this approach is found in Lees v Comcare (1999) 29 AAR 350; 56 ALD 84, especially at [34], upon which Deputy President Estcourt relies. I agree with and adopt the views of Deputy President Estcourt.Ceasing liability - the burden of persuasion