RUSSELL FOSTER and TELSTRA CORPORATION LIMITED
[2012] AATA 399
•28 June 2012
[2012] AATA 399
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2011/2572
Re
RUSSELL FOSTER
APPLICANT
And
TELSTRA CORPORATION LIMITED
RESPONDENT
DECISION
Tribunal Mr R G Kenny, Senior Member and Dr M Sullivan, Member
Date 28 June 2012 Place Brisbane The Tribunal determines that the applicant’s claim should proceed to hearing on the matters of whether there is a present entitlement under ss 16 or 19 of the Safety Rehabilitation and Compensation Act 1988 (Cth).
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Mr R G Kenny, Senior Member
CATCHWORDS
WORKERS’ COMPENSATION – Acceptance of liability under the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) for medical treatment and compensation for an aggravation of a pre-existing and constitutional right wrist ganglion which was materially contributed to by his employment with Telstra – Cessation of liability for incapacity for work or impairment or the need for medical treatment by 31 December 2007 – Applicant’s claim not a mere re-agitation of matters dealt with in a previous decision of the AAT – Matter to proceed to hearing in relation to compensation under sections 16 and 19 of the SRC Act.
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s 33
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 14, 16, 19
CASES
Abrahams v Comcare (2006) 93 ALD 147
Cheung v Administrative Appeals Tribunal [2009] FCA 241
Foster and Telstra Corporation Limited [2010] AATA 89
Re Quinn and Australian Postal Corporation (1992) 15 AAR 519
Re Rana v Military Rehabilitation and Compensation Corporation (2008) 104 ALD 595
REASONS FOR DECISION
Mr R G Kenny, Senior Member and Dr M Sullivan, Member
28 June 2012
BACKGROUND
On 16 February 2007, Mr Foster lodged a claim for workers compensation in relation to “tendonitis right wrist” which he alleged was caused by the use of a computer mouse on 14 February 2007. On 20 April 2007, the Telstra Corporation Ltd (“Telstra”),[1] accepted liability under the Safety, Rehabilitation and Compensation Act 1988 (“the SRC Act”), for rehabilitation and compensation in respect of “soft tissue injury to the right wrist”. On 16 October 2007, it revoked that decision. In turn, that decision was revoked by the respondent on 22 December 2008, determining that it was not liable for tendonitis but that it accepted liability for a ganglion condition up to 25 July 2007, when the side effects ceased. On 22 February 2009, the respondent revoked that decision and determined that it was liable for the applicant’s ganglion condition but that Mr Foster ceased to suffer the effects of that condition on 31 December 2007. On review of that decision by the Administrative Appeals Tribunal (“the Tribunal”) on 8 February 2010, that decision was affirmed.[2]
[1] All material decisions and determinations under the Act were made by Allianz Australia Insurance Limited, acting for and on behalf of Telstra.
[2] Foster and Telstra Corporation Limited [2010] AATA 89.
On 30 October 2010, Mr Foster completed a letter which has been treated by the respondent as a claim for ongoing incapacity benefits from 31 December 2007 as well as reimbursement for medical costs associated with further treatment for his right hand performed on 12 March 2010 as a result of a ganglion of the right wrist. On 25 March 2011, the respondent determined that there was no present liability for compensation under the SRC Act for Mr Foster's ganglion of the right wrist. On 11 May 2011, it varied that decision and decided:
·on 14 February 2007, Mr Foster sustained an aggravation of a pre-existing and constitutional right wrist ganglion which was materially contributed to by his employment with Telstra; and
·by 31 December 2007, the right wrist aggravation ceased to result in incapacity for work or impairment or the need for medical treatment, and accordingly, from 1 January 2008 to the present, Mr Foster was not entitled to compensation under ss 16 and 19 of the SRC Act in respect of the right wrist aggravation.
SUBMISSIONS
For Mr Foster, Ms Brenda Gordon said that she accepted the earlier decision of the Tribunal and noted that it affirmed the decision that Telstra had been liable with respect to the ganglion but that its effects had ceased by 31 December 2007. She submitted that, since then, further medical evidence had been obtained about the nature of Mr Foster's condition and that it established that Mr Foster continued to suffer from the original ganglion until it was removed on 12 March 2010, by Dr Gregory Couzens, after the Tribunal decision. She referred to Dr Couzens’ opinion that his earlier procedure to remove the ganglion had left a residue which had continued to develop and that accordingly, the second surgical procedure was related to the original ganglion in Mr Foster’s wrist. Ms Gordon submitted that Mr Foster had continued to suffer wrist pain after 31 December 2007. She submitted that the ganglion pain continued until July 2010 and has since resolved.
Ms Gordon also submitted that Mr Foster suffered from right forearm tendonitis and muscle fatigue and that the pain from these conditions had remained constant. She submitted that the Tribunal had incorrectly determined that Mr Foster suffered from a second ganglion which had developed subsequent to the excision of the original ganglion and which had not been associated with Mr Foster's work with Telstra because he had left that employment in November 2007. She submitted that the evidence of Dr Couzens confirmed that this had not been a second ganglion but a continuation of the first ganglion.
For the respondent, Ms Ford submitted that Mr Foster's application was an attempt to re-agitate issues which had been the subject of review in the Tribunal decision of 8 February 2010. There, the Tribunal affirmed the respondent's decision, of 22 February 2009, that it was liable for the aggravation of Mr Foster’s ganglion condition but that Mr Foster had ceased to suffer the effects of this condition on 31 December 2007. Ms Ford referred to findings of fact made by the Tribunal in its decision of 8 February 2010 and submitted that these should be accepted as determinative of those matters and that new evidence in relation to them should not be admitted.[3] This would preclude the admission of evidence concerning treatment of Mr Foster after 31 December 2007.
[3] In reliance on Cheung v Administrative Appeals Tribunal [2009] FCA 241, Re Rana v Military Rehabilitation and Compensation Corporation (2008) 104 ALD 595 and Re Quinn and Australian Postal Corporation (1992) 15 AAR 519
Ms Ford submitted that a range of diagnostic terms had been used to describe Mr Foster's condition and that the medical evidence now pointed to a musculoskeletal strain injury or a mild extensor tendon tenosynovitis rather than a ganglion. She submitted that it was not uncommon for changing diagnoses to be advanced over time for the same set of symptoms[4] and that, regardless of the diagnostic term before the Tribunal in February 2010, the symptoms for the condition at that time were the same as those experienced by Mr Foster since then. Ms Ford submitted that the Tribunal had jurisdiction to consider Mr Foster’s circumstances only from 1 January 2008, the day after the Tribunal determined that liability ceased.[5] Ms Ford submitted that it had been open to Mr Foster to appeal the Tribunal decision but noted that this had not been done. She also submitted that the issue of whether to treat the Tribunal decision as determinative had been expressly raised in its facts and contentions and this had been forwarded to Mr Foster.
[4] Referring to Abrahams v Comcare (2006) 93 ALD 147.
[5] Relying on Cheung v Administrative Appeals Tribunal [2009] FCA 241.
Mr Foster's claim, in his letter of 30 October 2010, raises issues relating to payment of medical expenses and compensation under ss 16 and 19, respectively, of the SRC Act. However, Ms Ford’s submission seeks to bring matters to finality without considering those issues. Accordingly, in these proceedings, the Tribunal is concerned with the submissions of the parties on whether or not new evidence relating to Mr Foster’s wrist should be led or whether we should adopt the findings of the earlier Tribunal decision as being determinative of the issues decided there.
Of relevance is s 33(1)(c) of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”) which provides:
In a proceeding before the Tribunal:
…
(c) the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate.
THE TRIBUNAL’S DECISION OF 8 FEBRUARY 2010
In its decision of 8 February 2010, the Tribunal set out the following four issues for its determination:
1. Is the respondent entitled to review its decision of its own motion? In particular, is the decision of 2 February 2009 legally effective?
2. Does the applicant suffer from tendonitis of the right wrist or a ganglion condition of the right wrist?
3. If the applicant suffered from either tendonitis or a ganglion condition is that attributable to his employment with Telstra?
4. If the answer to (3) is "yes", is the applicant entitled to medical treatment or incapacity payments beyond 31 December 2007?
The first of those was answered in the affirmative but is not of particular relevance in this matter. As to the second question, the Tribunal answered:
27. The complaint of ongoing pain is therefore, on the balance of probabilities, explicable by the opinions of Dr Coleman and Dr Couzens that it is possible for the ganglion to regrow which would be due to an individual's predisposition. Neither of the medical experts said that there was any logic from a medical point of view that either pain while working in Telstra, or pain which appears to have become worse since December 2007 could be attributable to the work performed by Mr Foster while he was with Telstra. Working with Telstra would have been an aggravation, but not a cause to Mr Foster's condition.
28. We accept the evidence of both Dr Couzens and Dr Coleman. We find no evidence of any significance which is in dispute between the opinions of these doctors. Consequently, based on the evidence, we find as a fact that there is no tendonitis condition suffered by Mr Foster. We also make a finding of fact that Mr Foster had a ganglion which was removed in 2007. We further find that on the balance of probabilities, the only explanation based on the medical evidence is that any pain experienced by the applicant since 31 December 2007, the reasonable period following excision of the ganglion, would be that a further ganglion has grown due to constitutional factors. In our opinion, the evidence clearly shows that this must have occurred since Mr Foster has ceased his employment with Telstra.
For the third question, the Tribunal concluded that causation of the ganglion in Mr Foster's right wrist could not be attributed to his employment with Telstra. In its reasons for decision, the Tribunal made reference to the original ganglion and a possible further ganglion which developed subsequent to the first ganglion excision. The decision under review in that case was in respect of the first ganglion which the respondent had determined was not caused by employment with Telstra but aggravated by that employment. It was on that basis that the respondent accepted liability and compensated Mr Foster until December 2007. The formal outcome of the Tribunal's deliberations on 8 February 2010 was that it “affirmed” that decision. However, in its reasoning, the Tribunal clearly found that, on the medical evidence before it which included that of Dr Couzens, Mr Foster’s ganglion was not caused by his employment but aggravated by it.[6] The Tribunal also referred to the second ganglion in terms that it was not causally related to Mr Foster's employment with Telstra because it developed after he had ceased his employment with Telstra in November 2007.
[6] See para 27 (reproduced above in para 10 of these reasons).
Though not necessary for its decision, the Tribunal also answered the fourth question and determined that there was no justification for any payment for medical treatment or incapacity under the SRC Act beyond 31 December 2007.
MEDICAL EVIDENCE
On 14 September 2007, Dr Couzens removed a ganglion from Mr Foster’s right wrist. On 12 March 2010, shortly after the Tribunal made its decision on 8 February 2010, Dr Couzens completed a further surgical procedure on Mr Foster’s right wrist. In evidence was his report, dated 4 June 2010, where he wrote:
The ganglion removed on the 12 March 2010 was arising in the same area as the original ganglion. It most likely represents a recurrence of the ganglion, although I note that I did not explore the plantar insertion of the TFC at the time of the original surgery in 2007, and therefore may have missed the original ganglion.
Dr Kenneth Cutbush, orthopaedic surgeon, completed reports on 24 November 2011 and 21 February 2012. He considered that an MRI report on 10 May 2007 showed an ulnar sided ganglion related to the distal radial ulnar joint as well as a degree of tendinopathy. He read an MRI report of 17 April 2009 as demonstrating a small ganglion in the prestyloid recess as well as a degree of extensor carpi ulnaris tendonitis. His first report appeared to proffer differing opinions as to the nature of the ganglion removed in 2010. He stated that it was either a residual ganglion not removed in 2007 or a recurrence in the same region; that it may well have been a residual ganglion from the first operation; and that it was a residual ganglion from the first operation. He wrote that the ganglion conditions were not related to Mr Foster’s employment. His opinion was that Mr Foster appeared to have a musculoskeletal strain injury or a mild extensor tendon tenosynovitis but that the MRI and ultrasound investigations did not support a formal diagnosis of the latter condition. He considered that the symptoms in his wrist were related to his work with Telstra. Dr Cutbush described Mr Foster’s symptoms as having essentially resolved which made it difficult to be certain which condition he had suffered from. He described significant contribution from his work with Telstra but wrote that the work-related symptoms had ceased after his Telstra work ended in November 2007.
CONSIDERATION
In the Federal Court decision of Cheung v Administrative Appeals Tribunal (Cheung),[7] Bennett J confirmed that the Tribunal has discretion to accept a previous Tribunal decision as determinative of an issue and not to allow it to be reopened.[8] His Honour noted that this was the approach adopted by the Tribunal in Rana v Military Compensation Commission[9] where Deputy President Forgie said:
These are considerations that must inform any exercise of the Tribunal’s power in s 33(1)(c) of the AAT Act. That power must also be exercised with the exhortation found in s 2A to pursue, among others, the objectives of fairness, justice, economy, informality and speed firmly in mind. When I do that, it seems to me to lead to a conclusion that Mr Rana should not be permitted to rehearse the circumstances of his employment a further time, to challenge the findings that have been made about the circumstances of that employment or to challenge the findings that have been made about the compensability of the conditions for which he has previously been denied compensation and in respect of which the Tribunal has affirmed the decisions. Instead, the Tribunal should have regard to the findings of fact made by the earlier Tribunals presided over by Deputy Presidents Layton and Jarvis respectively in reviewing the decision in the current matter. Any evidence that is given should be directed to establishing the necessary causal links between the facts as found by those previous Tribunals and the conditions as now claimed by Rana.
[7] [2009] FCA 241.
[8] Referring to Morales v Minister for Immigration and Multicultural Affairs (1998) 82 FCR 374 at 390.
[9] (2008) 104 ALD 595 at [137] per Deputy President S Forgie.
There, the Tribunal decided that, under s 33(1)(c) of the AAT Act, it would inform itself by reference to the findings of fact made by the Tribunal in an earlier case and did not permit the parties to lead further evidence regarding those matters. In Cheung, Bennett J summarised the position thus:
Generally speaking, there should not be relitigation without reason of the same issues before the Tribunal where the relitigation is of the same facts and issues already decided. In those circumstances, previous Tribunal decisions would generally be regarded as establishing the matters actually decided and the grounds for determination. It is open to a subsequent Tribunal to regard a previous decision as determinative of an issue and to decide that an issue should not be reopened. The Tribunal has a discretion in those circumstances to take such a course….[10]
[10] At para 49 and citing Morales v Minister for Immigration and Multicultural Affairs (1998) 82 FCR 374 at 390.
In Cheung, the Tribunal had proceeded on the basis that, in the circumstances of the case, it would not treat an earlier decision of the Tribunal as determinative and Bennett J held that no error of law was made by the Tribunal in its doing so. However, it would seem to be material to that decision that no application had been made to the Tribunal to exclude any new evidence which was not before the earlier Tribunal and no application made to treat the earlier decision as determinative of the conclusions to be drawn. The position is different in the matter of Mr Foster. Ms Ford has made specific submissions about the earlier decision involving Mr Foster in the documents provided to Mr Foster before the hearing.
The decision under review before us was made by the respondent following its receipt of Mr Foster’s letter of 30 October 2010. He gave the date of injury as 14 February 2007 which was the same date as for the first ganglion. He sought to associate the second formation of a ganglion, removed by Dr Couzens on 12 March 2010, with the first ganglion on the basis that it had not been fully excised in 2007. He claimed that the new evidence from Dr Couzens showed that he had been suffering from the ongoing effects of the original injury from 14 February 2007 until 12 March 2010 and that he still suffers from the effects of the original ganglion. He wrote that he was still unable to perform the duties he was undertaking with Telstra before 14 February 2007.
One of the findings of the Tribunal on 8 February 2010 was that the ganglion identified in 2009 was a new condition and, as Mr Foster had ceased working for Telstra in 2007, it was unrelated to that employment. The subsequent evidence of Dr Couzens and Dr Cutbush may well have caused the Tribunal to consider the matter differently. Yet, as we read the report of Dr Couzens, it does not necessarily support Ms Gordon’s submission that the ganglion excised in March 2010 was the same one as he excised in 2007 and which had been incompletely removed in 2007. Dr Couzen’s description that the ganglion was “most likely” to be a recurrence of the condition would suggest a condition unrelated to the first ganglion. However, that must be qualified by his comment that he may have “missed” the original ganglion. It may be that this is an expression of a mere possibility that he may not have completely removed the original ganglion. Dr Cutbush reports on the difficulty in diagnosing Mr Foster’s wrist condition but, in relation to the ganglion removed by Dr Couzens on 12 March 2010, he describes either a residual ganglion not removed in 2007 or a recurrence in the same region and then appears to adopt the opinion that it was a residual ganglion from the first operation.
We do not make any findings in relation to the ganglion excised in 2010. In that regard, we consider that there is a need for clarification of the nature of that ganglion. We note that Dr Couzens is to give evidence at the hearing of Mr Foster’s claim. We accept that, based upon the authorities noted above, there is a discretion to take as definitive the findings of the Tribunal in 2010. However, we are satisfied that Mr Foster should not be considered as merely re-agitating all of the issues as were before the Tribunal at that time. Nonetheless, at the resumed hearing, consideration will need to be given to the finality or otherwise of some aspects of the Tribunal’s findings including those in relation to the diagnosis of tendonitis and to Mr Foster’s ganglion not being caused by his employment but being aggravated by it.
DECISION
We are reasonably satisfied that Mr Foster’s claim should proceed to hearing on the matters of whether there is a present entitlement under ss 16 or 19 of the SRC Act.
22. I certify that the preceding 21 (twenty-one) paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Senior Member and Dr M Sullivan, Member.
23.
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Associate
Dated 28 June 2012
Date(s) of hearing 28 May 2012 Advocate for the Applicant Brenda Gordon Counsel for the Respondent Elenne Ford
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