Robertson and Comcare

Case [2002] AATA 1259

DECISION AND REASONS FOR DECISION [2002] AATA 1259

ADMINISTRATIVE APPEALS TRIBUNAL      )          No A2000/345

)          No A2001/44

GENERAL ADMINISTRATIVE  DIVISION     )          No A2001/363        No A2001/364        No A2001/365 
           Re      JOANNE ROBERTSON   
  Applicant
           And    COMCARE  
  Respondent

DECISION

Tribunal       Mr G A Mowbray    

Date6 December 2002

PlaceCanberra

Decision      The Tribunal: 1.       Sets aside the decisions under review in matters A2000/345, A2001/364 and A2001/365 and remits the matters to the Respondent for reconsideration with a direction to give effect to the findings of the Tribunal as set out in the reasons for decision that (a)           in early 1995 Ms Robertson injured her right shoulder, forearm and thumb (b)       as a consequence Ms Robertson currently suffers from a chronic regional pain syndrome (c) Ms Robertson's regional pain syndrome has been ongoing and continuous since early 1995 (d)      the regional pain syndrome was work-related in its origin in 1995 and continues to be a work-caused injury for the purposes of the Act (e)        this condition has not ceased (f)    Ms Robertson was incapacitated for work as a result of the original injury in early 1995 (g)       Ms Robertson was incapacitated during the periods for which she sought incapacity payments from May 1998 to October 1999 (h)     Ms Robertson was incapacitated for work at 13 March 2000 (i)         Ms Robertson was incapacitated for work at 20 June 2001 (j)      Ms Robertson remains incapacitated for work today. 2.     Sets aside the decision under review in matter A2001/44 and in substitution therefor decides Ms Robertson is entitled to compensation for a house clean and gardening assistance. 3.           Sets aside the decision under review in matter A2001/363 and in substitution therefor decides Ms Robertson is entitled to the cost of motorised garage doors. 4.         Orders the Respondent to pay the Applicant's costs as agreed or taxed.           
  ..............................................
  Member
CATCHWORDS
COMPENSATION – correct diagnosis of condition – whether current condition related to employment or constitutional – whether incapacitated for work – whether entitled to compensation for house clean and gardening assistance – whether entitled to the cost of motorised garage doors

Safety, Rehabilitation and Compensation Act 1988, ss 4, 14, 19, 29, 39

Re Carson and Telstra Corporation (2001) 33 AAR 351
Lees v Comcare (1999) 29 AAR 350; 56 ALD 84
Comcare v Nichols [1999] FCA 209
Re Quinn and Australian Postal Corporation (1992) 15 AAR 519
Commonwealth v Borg  (1991) 20 AAR 299n
Comcare v Rowe (2002) 35 AAR 410
Re Smith and Comcare [2002] AATA 249

REASONS FOR DECISION

6 December 2002   Mr G A Mowbray                

  1. This matter concerns five applications by Joanne Robertson for review of decisions made by Comcare. The first application (A2000/345) is for review of a decision dated 31 August 2000 that on and from 13 March 2000 Ms Robertson was not entitled to any payments for incapacity under section 19 of the Safety, Rehabilitation and Compensation Act 1988 ("the Act"). A2001/44 relates to a decision dated 12 January 2001 that accepted some liability for household services but denied a "one off…

Continue reading Robertson and Comcare

Sign in free to access the full text

Details
AGLC
Robertson and Comcare [2002] AATA 1259
Case
[2002] AATA 1259
Decision Date

CaseChat Overview and Summary

The case of Robertson v Comcare involved a dispute between the claimant, Ms Joanne Robertson, and the respondent, Comcare, concerning compensation for injuries sustained by Ms Robertson during her employment with the Public Service. The primary issue was whether the injuries Ms Robertson claimed to have suffered were related to her employment, and if so, whether she was entitled to compensation for various forms of assistance and costs. The case was heard by the Administrative Appeals Tribunal (AAT) from 19 to 22 February 2002, with additional written submissions received thereafter. The legal issues at the heart of the case included determining the correct diagnosis of Ms Robertson's condition, establishing the relationship between her condition and her employment, assessing her capacity for work, and deciding on the entitlement to compensation for specific services and costs.

The court's reasoning was influenced by prior cases such as Re Carson and Telstra Corporation and Lees v Comcare, which clarified the nature of "cease liability" decisions under the Safety, Rehabilitation and Compensation Act 1988. The court noted that such decisions do not necessarily revoke the initial determination of liability but rather may pertain to the cessation of certain compensation payments. The tribunal considered whether Ms Robertson's condition was related to her employment and if it rendered her incapacitated for work. It also examined her entitlement to compensation for household services, including a one-off clean and gardening assistance, as well as the cost of motorised garage doors.

After reviewing the evidence and submissions, the tribunal found that Ms Robertson's condition was indeed related to her employment, and she was entitled to certain forms of compensation. The tribunal concluded that the restrictions suggested by her general practitioner were reasonable and that her self-managed treatment regime was appropriate. The tribunal further determined that Ms Robertson was entitled to compensation for specific household services and the cost of motorised garage doors, based on the recommendations from a home assessment conducted in March 2000. The final orders reflected these findings, granting Ms Robertson the compensation she was entitled to for the services and costs in question.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The matter was heard from 19 – 22 February 2002. Ms Robertson was principally represented by her husband, Mr Stuart Robertson, although on occasion she also presented her own case. Comcare was represented by Mr Charles Clark of counsel. At the close of the hearing the parties were also given an opportunity to provide additional written submissions if they desired. A written submission was received from Ms Robertson on 8 March 2002 and from Comcare on 27 March 2002.Background Ms Robertson was born on 1 May 1959. She joined the Public Service as a dietician in 1984 in Adelaide and performed a variety of roles in that area before transferring to Canberra in 1993. Early in 1995 Ms Robertson spent a period of time acting in a higher position. During this period she used the office and workstation of the person who normally worked in that higher position. On 17 March 1995 she made a claim for compensation and rehabilitation for "strained right shoulder, right flexor tendonitis, right forearm and right thumb" in which she attributed her condition to the time recently spent using the other person's workstation. It is evident this claim was accepted although the initial acceptance does not appear in the documents tendered to the Tribunal. Ms Robertson continued to work full-time but subject to some medical restrictions until going on maternity leave during 1996. She returned to work but after a few months began working part-time and taking leave without pay for the days not worked. There is no dispute that this was initially for the purpose of looking after her infant son, but there is considerable dispute as to whether this continued to be the rationale for working part-time. In about October 1999 moves were made by Ms Robertson's management to alter the existing state of affairs. Again, the precise nature of what took place over the next few months is the subject of dispute. It is sufficient for the present to say that Ms Robertson began to make claims for incapacity payments in relation to days not worked. In addition her hours worked began to drop and eventually there were periods where her general practitioner certified her unfit to work. On 24 May 2000 Comcare rejected claims for time off work on and from 13 March 2000. The same letter also informed Ms Robertson that Comcare intended to cease paying compensation benefits altogether but no action was taken at this time. On 19 and 26 June 2000 Ms Robertson made requests for the determination on her claims for time off work to be reviewed. Comcare affirmed that determination on 31 August 2000 and an application for review of this decision was lodged with the Tribunal on 14 September 2000. This is the subject of A2000/345. Other forms of compensation continued to be paid. On 25 October 2000 Comcare approved three months of household services, not including gardening, at three hours per week. Ms Robertson sought a variation in the services provided to include specific recommendations from a home assessment that been conducted in March 2000, an assessment that Comcare had referred to in its determination. These recommendations included a one off thorough clean and gardening services. Ms Robertson also sought repayment of the cost she had incurred in replacing her garage doors. This issue had also been discussed in the earlier home assessment.

Evidence

Evidence Before The Court

The Tribunal also received Applicant's exhibits A1 to A45 and Respondent's exhibits R1 to R15. Oral evidence was given by Ms Robertson, her husband Mr Robertson, Professor Philip Sambrook (rheumatologist), Dr G. David Champion (rheumatologist and specialist in pain management), Dr Garth Eaton (occupational physician), Dr Gregory Carr (rheumatologist), Dr Andrew Brook (rheumatologist), Dr Paterson Kwan (general practitioner), Dr Peter Stevenson (consultant physician), Dr Neil McGill (rheumatologist), Dr Joan Chen (consultant in occupational medicine), Ms Shirley Byrne, Ms Elizabeth D'Abbs, Ms Joyce Lawrence, Ms Jean Ffrench and Mr Philip Drever. Ms Byrne and the other lay witnesses named after her are employees of the Department of Employment, Workplace Relations and Small Business along with Ms Robertson.Ms Robertson's Evidence Ms Joanne Robertson gave evidence that her job as a dietician prior to 1993 had not been "deskbound" in contrast to her later work. Her main role had been interviewing patients at their bedside. She had transferred to Canberra for policy work in what was then the Department of Industrial Relations. Prior to 1995 she had not had any conditions similar to her problems since then. Ms Robertson was cross-examined on this prior medical history, specifically on the accuracy of the medical history she had given to various doctors and her failure to mention certain events to some or all of them. These included a motor vehicle accident in 1985 and an episode of back pain in 1986. She responded that these had been minor and she had not suffered any ongoing problems. She had had only one treatment for the motor vehicle accident. She had had two physiotherapy sessions and a single investigative X-ray for the back pain and never returned for treatment. In 1992 she had a "twinge" while lifting a box but no ongoing pain. She subsequently acknowledged that she had had some symptoms in her left shoulder and neck for a period of about four weeks, but maintained this had resolved and was nothing like her current problems. An episode of shoulder and knee pain in October 1994 had been diagnosed as due to a viral infection. In January 1995 Ms Robertson commenced acting temporarily in a more senior SOGB position using the workstation of the officer who normally occupied this position. This workstation had been set up for a man who was two metres tall, i.e. considerably taller than herself. It had been jacked up on blocks for his use. The desk was sloped and the computer mouse was above the height of the keyboard. As a consequence she had injured her right shoulder, forearm and thumb. She continued to suffer pain on returning to her own workstation and consulted Dr Kwan, her general practitioner for treatment after about a week. In March 1995 she claimed compensation and Comcare subsequently accepted liability. Apart from one day off she continued to work, but with restrictions on her use of computers and in particular keyboards. Her workplace had been supportive and she received assistance with keyboard duties.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Her current treatment regime was self-managed, which was appropriate. The only other intervention that might be suitable was formal pain management. The restrictions suggested by Dr Kwan were reasonable.Consideration of Issues and Findings"Cease liability/effects" decisions As I have said before, in many "cease liability" or "cease effect" decisions 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 on. 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 payments of compensation under s.16 and s.19 of the Act and did not effectively revoke the earlier determination to accept liability under s.14, thereby preventing further claims for 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. In these proceedings the fourth matter is a cease liability decision.The burden of persuasion It is neither particularly apt nor appropriate to refer to a common law concept of a burden or onus of proof placed on a particular party in administrative proceedings in the Tribunal. However there has been a line of authority in both the courts and the Tribunal on what has been described as the "burden of persuasion" in these matters.