Romanov-Hughes and Comcare
[2003] AATA 155
•14 February 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 155
ADMINISTRATIVE APPEALS TRIBUNAL Nº V2000/1174
Nº V2001/109GENERAL ADMINISTRATIVE DIVISION Nº V2001/110
Re: ALEXANDER ROMANOV-HUGHES
Applicant
And: COMCARE
Respondent
DECISION
Tribunal: G.D.Friedman, Member
Date: 14 February 2003
Place: Melbourne
Decision:(a) In respect of application V2000/1174 the Tribunal affirms the decision under review.
(b)In respect of application V2001/109 the Tribunal affirms the decision under review.
(c)In respect of application V2001/110 the Tribunal sets aside the decision under review and substitutes a decision that the respondent is liable to pay compensation to the applicant for incapacity for the periods 5 April 1999 to 9 April 1999 and 7 May 1999 to 27 May 1999. In all other respects the Tribunal affirms the decision under review.
(sgd) G.D. Friedman
Member
COMPENSATION - injuries to ankle - periods of incapacity - ongoing liability for special footwear - cease effects decision - liability for back injury
Safety, Rehabilitation and Compensation Act 1988 s4(1), 14
Morales v Minister for Immigration and Multicultural Affairs (1998) 154 ALR 51
Re Romanov-Hughes and Comcare [2000] AATA 394
Re Romanov-Hughes and Comcare (2001) 66 ALD 471
REASONS FOR DECISION
14 February 2003 G.D.Friedman, Member
1. This is an application by Alexander Romanov-Hughes (the applicant) for review of determinations by Comcare (the respondent) dated 3 August 2000 (V2000/1174: the 1998/99 incapacity); 6 December 2000 (V2000/109: the back injury) and 11 January 2001 (V2001/110: the footwear etc matter). The respondent affirmed decisions under the Safety, Rehabilitation and Compensation Act 1988 (the Act).
2. At the hearing of this matter on 3 and 18 October 2002 and 15 January 2003 the applicant represented himself and Mr I. Gourlay of counsel represented the respondent.
3. The Tribunal received into evidence the documents lodged under s37 of the Administrative Appeals Tribunal Act1975, together with twenty-seven exhibits (Exhibits A1 to A27) lodged by the applicant.
BACKGROUND
4. The applicant was born on 28 June 1949. On 6 November 1989 he joined the Department of Defence (the Department) in Melbourne as an Administrative Service Officer. On 20 June 1994, while working in the Army Health Records Office, the applicant fell into an excavation trench and injured his left ankle (the accident). On 22 September 1994 the respondent accepted liability for left ankle joint sprain.
5. On 31 May 1995 the respondent accepted liability for payment of arch support orthotics. On 29 June 1995 the applicant was transferred to the Defence Printing and Publishing Department. He remained there until 22 August 1995. Following exploratory surgery on his ankle on 23 August 1995 the applicant was off work until 2 October 1995. He was paid compensation under the Act for the period 23 August 1995 to 2 October 1995, together with the reasonable cost of medical treatment. On 2 October 1995 the applicant returned to the Army Health Records Office. In November 1996 the applicant was transferred to the Bureau of Meteorology. He remained there until June 1997.
6. On 12 December 1996 the respondent determined that the applicant was no longer entitled to medical treatment or compensation under the Act for incapacity from the ankle injury from 11 December 1996. On 24 March 1997 the respondent revoked the determination of 12 December 1996 and found that the applicant remained entitled to compensation under the Act in respect of the ankle injury.
7. In June 1997 the applicant claimed the cost of physiotherapy for the ankle injury, together with compensation for incapacity for work while undergoing physiotherapy. On 14 August 1997 the respondent denied liability for the cost of physiotherapy and incapacity payments relating to the time off work to obtain physiotherapy as the applicant did not provide medical certificates certifying incapacity or the need for physiotherapy. On 24 November 1997 the respondent made a reviewable decision affirming the determination.
8. On 18 December 1997 the applicant made a claim for special footwear. On 7 January 1998 the respondent denied liability for the cost of special footwear. On 25 March 1998 the respondent made a reviewable decision affirming the determination.
9. The applicant claimed compensation for incapacity for work as a result of the ankle injury for the period 20 July 1998 to 30 November 1998. On 30 November 1998 the respondent refused that claim. On 30 November 1998 the respondent accepted liability for surgical exploration of the talo-navicular joint, repair of the spring ligament and tibialis posterior tendon release.
10. On 11 December 1998 the applicant sought review by the Tribunal of the reviewable decision dated 24 November 1997 (relating to the cost of physiotherapy and the incapacity to work as a result of the physiotherapy). On 5 January 1999 the applicant sought review by the Tribunal of the reviewable decision dated 25 March 1998 (relating to the claim for special footwear).
11. The respondent paid compensation to the applicant for incapacity for work as a result of the ankle injury between 18 January 1999 and 4 April 1999 and the reasonable cost of medical treatment obtained during that period in relation to the injury.
12. On 11 March 1999 the respondent made a reviewable decision affirming the determination dated 30 November 1998 (denying the claim for incapacity for work for the period 20 July 1998 to 30 November 1998). On 6 May 1999 the applicant sought review by the Tribunal of the reviewable decision.
13. On 30 May 1999 the applicant returned to work on a graduated return to work program, until November 1999. The applicant was paid compensation in respect of partial incapacity for work as a result of the ankle injury during this period.
14. On 19 November 1999 the applicant ceased work to undergo surgery on his right big toe, a non-compensable condition. On 22 November 1999 the applicant ceased work and has not worked since.
15. Following a hearing on 26 November 1999, 20 March 2000 and 21 March 2002 the Tribunal (constituted by Senior Member B. G. Gibbs) handed down its decision on 22 May 2000 (Re Romanov-Hughes and Comcare [2000] AATA 394 (the Gibbs decision). The Tribunal varied the determination dated 14 August 1997 and decided that the applicant was entitled to compensation in respect of physiotherapy and attendance at physiotherapy for the period 20 May 1997 to 8 July 1998. The Tribunal varied the determination dated 7 January 1998 and found that the applicant was entitled to payment for special footwear in respect of the ankle injury. The Tribunal affirmed the reviewable decision dated 11 March 1999 that the applicant was not entitled to compensation for incapacity for work in respect of the period 20 July 1998 to 30 November 1998.
16. On 2 June 2000 the applicant made a claim for incapacity payments for the period 1 December 1998 to 17 January 1999, 18 January 1999 to 30 May 1999, and for partial incapacity payments for the period 31 May 1999 to 2 June 2000. On 15 June 2000 the respondent determined that the applicant was not incapacitated for work as a result of an injury during the period 1 December 1998 to 17 January 1999 and that the applicant had an ability to earn an amount equal to his average weekly earnings for this period.
17. The applicant was paid compensation for incapacity for work as a result of the injury for the period 18 January 1999 to 5 April 1999 and for partial incapacity for the period 31 May 1999 to 22 November 1999. Compensation was not paid for the period 5 April 1999 to 30 May 1999 or from 22 November 1999 to date.
18. On 3 August 2000 the respondent made a reviewable decision affirming the determination dated 15 June 2000 (relating to the claim for incapacity for work during the period 1 December 1998 to 17 January 1999). On 28 September 2000 the applicant sought review by the Tribunal of the reviewable decision (V2000/1174).
19. On 2 June 1998 the applicant claimed that he had suffered a lower thoracic muscle strain in early 1998, as a result of undertaking photocopying tasks which he performed while seated due to his left ankle injury, for which he had first sought treatment on 20 May 1998. On 15 September 1998 the respondent accepted liability for thoracic muscle sprain for the period 20 May 1998 to 3 July 1998.
20. On 22 September 1999 a Magnetic Resonance Imaging (MRI) scan arranged by the applicant recorded mild degeneration of the L5/S1 disc associated with a small annular tear. On 4 October 1999 the applicant was diagnosed with a chronic back strain with lumbar disc degeneration. He was considered fit to continue sedentary work with appropriate restrictions to avoid back strain.
21. On 6 October 2000 the applicant lodged a claim for compensation, alleging he suffered a small central circumferential annular tear with mild degeneration of the L5/S1 disc on 20 June 1994 in the accident. On 20 October 2000 the respondent determined that it was not liable to pay compensation for incapacity for work as a result of the disc degeneration L4-L5/L5-S1 back injury or the cost of medical treatment obtained in relation to the injury. On 6 December 2000 the respondent made a reviewable decision which affirmed the determination. On 1 February 2001 the applicant sought review by the Tribunal of the reviewable decision (V2001/109). The footwear etc. matter has three separate components: a claim for ongoing compensation for special footwear (the footwear component); a claim for compensation for incapacity for the period 5 April 1999 to 30 May 1999 (the incapacity component); and a claim that liability for compensation for injury to the left ankle should not cease with effect from 22 November 1999 (the cease effects component).
22. On 17 October 2000 the respondent determined that the applicant was no longer entitled to compensation, for incapacity for work as a result of the ankle injury or the cost of medical treatment obtained in relation to the injury, on and from 22 November 1999. The respondent also determined that the applicant was not entitled to compensation for incapacity for work as a result of the ankle injury for the period 5 April 1999 to 30 May 1999.
23. The respondent decided that the applicant was entitled to the cost of reasonable medical treatment in respect of the ankle injury, namely the provision of special footwear in the sum of $375. On 11 January 2001 the respondent made a reviewable decision which affirmed the determination dated 17 October 2000. On 1 February 2001 the applicant sought review by the Tribunal of the reviewable decision (V2001/110).
EVIDENCE
24. The applicant told the Tribunal that in respect of the 1998/99 incapacity Dr H. Sutcliffe, occupational physician, carried out a workplace assessment on 3 December 1998, in which she recommended that the applicant not return to work prior to surgery that was scheduled for 18 January 1999. He said he made claims for compensation, with supporting medical certificates, for the periods 1 to 29 December 1998 and 30 December 1998 to 17 January 1999.
25. The applicant said that on 15 June 2000 the respondent determined that he was not incapacitated and that he had the ability to earn an amount equal to his average weekly earnings for the period 1 December 1998 to 17 January 1999. He stated that the determination was made deliberately some three weeks after the Gibbs decision. The applicant said that no request was made by either party to have the period 1 December 1998 to 17 January 1999 made part of the proceedings before Senior Member Gibbs. He stated that when he did return to work he expected his working environment to be altered to take account of recommended changes, but he found the situation to be unsatisfactory. The applicant stated that the Department had not taken his injury seriously and had not complied with decisions of the Tribunal.
26. In respect of the back injury, the applicant told the Tribunal that when he injured his left ankle in the accident he also injured his spine. He referred to medical reports (Exhibits A9 to A21) which he said supported his claim. He referred particularly to a report dated 22 September 1999 (Exhibit A14), following an MRI scan, which concluded: Mild degeneration of the L5/S1 disc associated with a small annular tear. A further MRI scan on 18 May 2001 (Exhibit A20) concluded: Degenerative disc disease at L5/S1 with small central protrusion, non compressive. No other abnormalities.. He said that the results of the scans were consistent with an opinion dated 6 September 2001 (Exhibit A21) by Dr S. Jensen, musculoskeletal physician.
27. The applicant said that he was not aware of his back injury until March 1995 because the ankle injury caused swelling which restricted his range of movement for a considerable period. He told the Tribunal that he has been unable to work since a worsening of his back condition on 16 November 2000.
28. In respect of the footwear etc. matter, the applicant told the Tribunal that, in relation to the footwear component, on 18 December 1997 his orthopaedic surgeon prescribed special orthopaedic footwear, and the following day he made a compensation claim for the cost of the footwear. The applicant stated that the Gibbs decision required the respondent to pay compensation to him for special footwear, and that the decision covered the continuing supply of suitable footwear and not just one pair. He said that on 9 August 2000 the respondent approved the purchase of orthopaedic footwear to the value of $375, and that the respondent had insisted on a particular supplier.
29. In relation to the incapacity component, the applicant stated that he had acted on medical advice, in particular by Dr Sutcliffe, for his absence from work during this period. He said that the date of his return to work had been set by the Department which subsequently did not comply with the medical requirements of his return to work.
30. In relation to the cease effects component, the applicant stated that he believed that the effects of the injury suffered in the accident were becoming progressively worse. He said that Dr Shumack’s opinion that The physical effects of the injury sustained on 20/6/94 have ceased was contrary to that of all other medical professionals whom the applicant had consulted. He was critical of the rehabilitation contractors, and stated that the decision to cease payments was not related to the condition of his left ankle.
31. Ms L. Jemison, Manager, Civilian Personnel Services, Department of Defence, and formerly Rehabilitation Case Manager with the Department, gave oral evidence that she was the case manager from 1996 to 1999. She said that she gave evidence to the Tribunal on 21 February 1999 before Senior Member Gibbs. She said that she became aware of back problems suffered by the applicant in about 1998 when he lodged a claim arising from duties involving photocopying. Ms Jemison expanded on her previous evidence and stated that at all relevant times the Department was prepared to make any recommended modifications to the workplace to keep the applicant employed.
32. Ms Y. Stewart, Acting Manager of Workplace Transition Services, Department of Defence, gave oral evidence that she took over the position of Case Rehabilitation Manager from Ms Jemison in May 1999. She said that in May 1999 she liaised with Dr Sutcliffe before the applicant returned to work on 31 May 1999, and was involved in modifications to the workplace. She stated that the Department complied with recommendations of Dr Sutcliffe, although she agreed that that the applicant was unhappy with the changes that were made.
CONSIDERATION OF THE ISSUES
33. Section 14 of the 1988 Act provides:
Compensation for injuries
14(1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
(2) Compensation is not payable in respect of an injury that is intentionally self-inflicted.
(3) Compensation is not payable in respect of an injury that is caused by the serious and wilful misconduct of the employee but is not intentionally self-inflicted, unless the injury results in death, or serious and permanent impairment.
34. Under s4 (1) of the Act:
"'injury' means:
(a)a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee's employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), being an aggravation that arose out of, or in the course of, that employment;
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment."
"'disease' means:
(a)any ailment suffered by an employee; or
(b)the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee's employment by the Commonwealth or a licensed corporation."
"'ailment' means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)."
"'aggravation' includes acceleration or recurrence."
35. In respect of each application Mr Gourlay submitted that the applicant was an unreliable witness who had exaggerated the extent of his injuries and his general medical condition. He submitted that the applicant had sought to discredit the respondent and the Department by making unsubstantiated allegations that it had misled the Tribunal, refused to provide relevant documents and had acted improperly in its handling of his applications.
36. In respect of the 1998/99 incapacity, the applicant stated that he relied on Dr Sutcliffe’s report, the medical certificates provided by her, and the fact that the period 1 December 1998 to 17 January 1999 was not made part of the proceedings before Senior Member Gibbs.
37. Mr Gourlay referred the Tribunal to Morales v Minister for Immigration and Multicultural Affairs (1998) 154 ALR 51 in which the Full Federal Court stated at page 66:
In our view, the essentially administrative nature of the Tribunal's function and the nature of its task in looking to the correct or preferable decision, in circumstances where it is to have regard among other things to the dictates of fairness, point to the conclusion that the tribunal may, in appropriate circumstances, conclude that a previous decision should be applied again as the correct and preferable decision when it is sought to revisit the earlier decision at some later time.
Mr Gourlay submitted that the Gibbs decision covered largely the same matters as the current application, with the same medical and non-medical evidence that covered the period 1 December 1998 to 16 January 1999. He stated that the Tribunal has procedural flexibility to adopt the reasoning in the Gibbs decision without hearing the current matters in their entirety, even though in that matter the determination under review was made before the period 1 December 1998 to 17 January 1999 and the decision did not specifically cover it. Mr Gourlay said that after hearing medical and other witnesses over a period of three days Senior Member Gibbs did not accept the evidence by the applicant or Dr H. Sutcliffe, and found that there was no liability for the respondent to pay compensation for incapacity due to injuries to the left ankle for the period 20 July 1998 to 30 November 1998. He noted that the applicant did not seek review of the decision by the Federal Court.
38. In respect of the back injury, the applicant stated that the effects of the accident were not apparent for several months. He submitted that, although his back injury was difficult to attribute to a particular event, a comparison of the two MRI scans showed that the small annular tear at the base of the spine was consistent with a tear to the spine that probably occurred in the accident.
39. Mr Gourlay submitted that there was no demonstrable link between the back problems suffered by the applicant and the accident. He noted that in the six months following the accident the applicant had not reported any back pain, and the matter was not raised before Senior Member Gibbs. He said that, on the medical evidence, there were a number of factors such as the applicant’s age and weight, degeneration of existing conditions and problems with posture that may have contributed to back pain that has occurred since the accident. He said that the applicant may have suffered thoracic pain whilst undertaking photocopying duties, and had not established that the pain was related to the lumbar spine or the accident.
40. In relation to the footwear component, the applicant stated that Senior Member Gibbs found that the respondent was liable to pay compensation for the purpose of special footwear. He submitted that the clear inference from the decision was that the Tribunal had found ongoing injuries to his feet, so that compensation for the purposes of providing special footwear should also be ongoing.
41. Mr Gourlay stated that the respondent had offered to pay $375 to the applicant for a pair of specially designed shoes. However, he submitted that there was no obligation to provide ongoing compensation for special footwear, as the applicant suffered from congenital flat feet. He referred to the report dated 9 August 1999 from Dr Edwards and evidence given to Senior Member Gibbs that the applicant required modified shoes rather than specially-made footwear.
42. In relation to the incapacity component, the applicant relied on the medical certificates provided by Dr Sutcliffe and the failure by the Department to modify the workplace to enable him to return to work.
43. Mr Gourlay acknowledged that Dr Sutcliffe had provided the applicant with medical certificates for the periods 5 March 1999 to 9 April 1999 and 7 May 1999 to 27 May 1999 and he returned to work on 31 May 1999. Mr Gourlay said that for the remaining period (9 April 1999 to 7 May 1999) the applicant should have returned to work because, on the medical evidence, there were no complications from the surgery to justify additional time away from the workplace.
44. In relation to the cease effects component, the applicant submitted that the surgery to his left ankle in 1999 was of an exploratory nature. He stated that in a report dated 14 October 1998 Dr Edwards confirmed that the injury was ongoing, and it became progressively worse. He also submitted that the decision to cease liability was related to a dispute between the Department and a rehabilitation provider over fees.
45. Mr Gourlay submitted that the medical evidence shows that as at 22 November 1999 the injury to the left ankle sustained in the accident had largely healed. He referred to the reports by Dr Shumack (dated 29 October 1999 and 18 November 1999) and by Dr Colwill (dated 14 January 2000), which refer to the physical effects of the accident having ceased, and stated that the applicant suffered from degeneration of non-compensable injuries to his feet, including congenital flat feet. Mr Gourlay submitted that these were not relevant to the injury to the applicant’s left ankle.
46. In reaching its decision the Tribunal takes into account the relevant documents, oral evidence and submissions made at the hearing.
47. In respect of the 1998/99 incapacity the Tribunal accepts the submission by Mr Gourlay that Morales is authority for the proposition that the Tribunal has procedural flexibility to consider the conduct of previous matters where appropriate. The Tribunal notes that in the Gibbs decision the Tribunal stated at paragraph 70:
From the material before me I am satisfied that during the period from 15 September 1998 to 18 January 1999, the reason why Mr Romanov-Hughes did not return to work was essentially because he regarded it as the respondent’s fault that he did not have his operation until 18 January 1999, and that he would therefore simply remain off work until after the operation.
48. After considering the medical and other reports tendered, as well as the evidence given before Senior Member Gibbs, the Tribunal agrees with Mr Gourlay that the matters covered by the Gibbs decision were largely the same as the matters currently before the Tribunal. While this Tribunal is not bound by the findings of the Tribunal in respect of an earlier period of liability (per Senior Member Dwyer in Re Romanov-Hughes and Comcare (2001) 66 ALD 471) the Tribunal is not persuaded by the evidence of the applicant that it should depart from those findings in respect of the ankle injury. Therefore, the Tribunal accepts the submission by Mr Gourlay that, on balance, the evidence of the other medical and non-medical witnesses should be preferred to that of Dr Sutcliffe. The Tribunal finds that there is no liability for the respondent to pay compensation for incapacity due to injuries to the left ankle for the period 1 December 1998 to 17 January 1999.
49. In respect of the back injury, the Tribunal takes into account that in the six months following the incident the applicant had not reported any back pain, and the matter was not raised before Senior Member Gibbs. The Tribunal also notes that the MRI scans show a small annular tear at the base of the spine. The Tribunal accepts the submission by Mr Gourlay that a number of factors such as other activities carried out by the applicant, degeneration of existing conditions and his age and weight may have contributed to ongoing back pain. On balance the Tribunal finds that there is no demonstrable link between the back problems suffered by the applicant and the accident. Therefore, the Tribunal finds that the respondent is not liable to pay compensation to the applicant for incapacity due to injuries to the applicant’s back.
50. In relation to the footwear component, the Tribunal takes into account that in the Gibbs decision the Tribunal found that the respondent was liable to pay compensation to the applicant for the purpose of special footwear. However, the Tribunal notes the contents of the report by Dr Edwards and the evidence given before Senior Member Gibbs, and finds that there is no reason to draw an inference that such compensation was intended to be ongoing. In the circumstances the Tribunal finds that the compensation should be limited to one pair of special footwear.
51. In relation to the period incapacity component, the Tribunal takes into account the acknowledgment by Mr Gourlay that medical certificates were provided for the period 5 March 1999 to 9 April 1999 and 7 May 1999 to 27 May 1999. The Tribunal finds that the respondent is liable to pay compensation to the applicant for incapacity for the periods 5 April 1999 to 9 April 1999 and 7 May 1999 to 27 May 1999. For the period 9 April 1999 to 7 May 1999 the Tribunal accepts that there was no medical certificate to account for the applicant’s absence from the workplace, and the Tribunal is satisfied that the Department made efforts to modify the workplace before the applicant was due to return to work. Although the applicant was dissatisfied with the extent of these efforts, the Tribunal finds that this was insufficient to justify the applicant ’s decision not to present himself at his place of employment. Therefore, the Tribunal finds that for the period 9 April 1999 to 7 May 1999 the respondent is not liable to pay compensation to the applicant for incapacity.
52. In respect of the cease effects component, there is no persuasive evidence to support the applicant's claim that the decision is the result of, or is related to, any dispute alleged to have existed between the Department and a rehabilitation provider over fees. On balance, the Tribunal accepts the submission by Mr Gourlay that the medical and other evidence shows that the injury suffered in the accident had largely healed by 1999, and that other problems with the applicant’s feet were contributed to by degeneration and non-compensable injuries. Therefore, the Tribunal finds that the applicant is not entitled to compensation for incapacity for work as a result of the ankle injury on and from 22 November 1999 onwards.
DECISION
53.(a) In respect of application V2000/1174 the Tribunal affirms the decision under review.
(b)In respect of application V2001/109 the Tribunal affirms the decision under review.
(c)In respect of application V2001/110 the Tribunal sets aside the decision under review and substitutes a decision that the respondent is liable to pay compensation to the applicant for incapacity for the periods 5 April 1999 to 9 April 1999 and 7 May 1999 to 27 May 1999. In all other respects the Tribunal affirms the decision under review.
I certify that the fifty‑three [53] preceding paragraphs are a true copy of the reasons for the decision of:
G.D. Friedman, Member
(sgd) Catherine Thomas
Clerk
Date of Hearing: 3 October 2002
18 October 200215 January 2003
Date of Decision: 14 February 2003
Advocate for the applicant: Self-represented
Counsel for the respondent: Mr I. Gourlay
Solicitor for the respondent: Australian Government Solicitor
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