Saad and Comcare (Compensation) [2021] AATA 91 (4 February 2021)
Division:GENERAL DIVISION
File Numbers: 2019/4338
2019/5825
2020/8521
Re:Andrew Saad
APPLICANT
AndComcare
RESPONDENT
DECISION
Tribunal:Member R Maguire
Date:4 February 2021
Place:Brisbane
Application numbered 2019/4338 is dismissed pursuant to section 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth). The Reviewable Decisions in applications 2019/5825 and 2020/8521 are affirmed.
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Member R Maguire
Catchwords
COMPENSATION – Safety, Rehabilitation and Compensation Act - Liability for injury – Liability to compensate for medical treatment - whether impairment is the result of injury or degeneration – whether employment significantly contributed to impairment – temporary aggravation of ailment – decisions affirmed
PRACTICE AND PROCEDURE – Jurisdiction - Administrative Appeals Tribunal Act – time for lodging an application for review – when is an application for review lodged – whether an application can be lodged before the reviewable decision is rendered – what constitutes an application for review – Tribunal can not review decision until an application for review is lodged after that decision was rendered
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Cases
Asioty v Canberra Abattoir Pty Ltd [1989] HCA 40, (1989) 167 CLR 533, 87 ALR 385
Darling Island Stevedoring & Lighterage Co Ltd v Hankinson [1967] HCA 10, (1967) 117 CLR 19, [1967] ALR 545
Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34, (1964) 110 CLR 626, [1964] HCA 34, [1964] ALR 1031
Kennedy Cleaning (2000) 200 CLR 286
Kowalski and Repatriation Commission [2008] AATA 903
Mellor v Australian Postal Corporation (2009) 108 ALD 159, [2009] FCA 504
Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468, [2016] HCA 19
Ogden Industries Pty Ltd v Lucas (1967) 116 CLR 537
Prain v Comcare [2017] FCAFC 143
Re Colombo and Australian Postal Corporation [2015] AATA 10
Re Rutledge and Comcare (2011) 130 ALD 94
Salisbury v Australian Iron & Steel Ltd [1943] NSWStRp 50, (1943) 44 SR (NSW) 157
REASONS FOR DECISION
Member R Maguire
4 February 2021
INTRODUCTION
The Applicant seeks the review of two separate reviewable decisions made by Comcare (“the Respondent”) under the Safety Rehabilitation and Compensation Act 1988 (Cth) (“the Act”) to decline, liability under sections 14, 16, and 19 of the Act.
On 1 August 2019[1] the Respondent affirmed a determination[2] dated 6 June 2019, which declined liability for compensation in respect of a spine injury (claimed to have arisen out of an incident on 26 May 2016)[3] under section 14 of the Act (2019/4338 and 2020/8521 hereinafter referred to as the First Claim), on the basis that whilst the Applicant suffered an ailment, his employment was not the causation of his ailment. Specifically, the Respondent declined liability for “degeneration of cervical intervertebral disc; degeneration of intervertebral disc – thoracic; and displacement of intervertebral disc – lumbar”.[4]
[1] Exhibit 1 T48 pages 194 –200.
[2] Exhibit 1 T40 pages 183…
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- AGLC
- Saad and Comcare (Compensation) [2021] AATA 91
- Case
- [2021] AATA 91
- Decision Date
CaseChat Overview and Summary
The Tribunal was tasked with determining whether the applicant's claimed back pain was an injury in consequence of the incident on 26 May 2016, or an aggravation, acceleration, or recurrence of a pre-existing degenerative condition. It also had to consider Comcare's liability for compensation under sections 16 and 19 of the *Safety, Rehabilitation and Compensation Act 1988* (Cth) concerning the applicant's calcifying tendonitis of the right shoulder.
In relation to the first claim, the Tribunal accepted the evidence of Dr. Journeaux, who opined that the applicant's back pain stemmed from constitutional degenerative changes rather than the incident of 26 May 2016. The Tribunal noted the absence of any contemporaneous medical records referring to a back injury at the time of the incident and the significant delay before back pain was first documented. Consequently, the Tribunal was not satisfied that the applicant suffered an injury to his back in consequence of the incident. For the second claim, the Tribunal affirmed Comcare's decision to cease liability under sections 16 and 19 for the calcifying tendonitis of the right shoulder, as the applicant had lodged his application for review after the reviewable decision was rendered.
The Tribunal dismissed the application with matter number 2019/4338 and affirmed the reviewable decisions in respect of the First and Second Claims in matters numbered 2019/5825 and 2020/8521.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
The Tribunal also notes that in the ensuing paragraph of his report, in response to question (c):Is the Applicant’s condition(s) you described at paragraph 3.2 (a) above and aggravation, acceleration or recurrence of any pre-existing, degenerative or underlying condition?Dr Journeaux respondedMr Saad did not suffer asymptomatic or pathological aggravation or acceleration of a pre-existing degenerative condition as a consequence of the injury of 26 May 2016, these conditions just existed. In his evidence before the Tribunal – which the Tribunal accepts – Dr Journeaux was unhesitant in his view that the Applicant’s claimed back pain stems from these constitutional degenerative changes, and not from the incident of 26 May 2016. The Applicant did not adduce any expert evidence so as to comment on, or contradict the evidence of Dr Journeaux. The Tribunal notes that the contemporaneous records in respect of the incident of 26 May 2016 make no reference to any injury to the Applicant’s back, and that the first documented report of back pain did not arise until nearly three years after the incident. Having regard to the totality of evidence before it, the Tribunal finds that it is unable to be satisfied for the purposes of section 5A(1) of the Act, that the Applicant suffered an injury to his back in consequence of the incident of 26 May 2016. Accordingly, the reviewable decision in respect of the First Claim is affirmed.THE SECOND CLAIM – SECTIONS 16 AND 19Background In his Workers’ Compensation Claim Form dated 28 March 2017,[45] the Applicant claimed for tendonitis, pain and suffering affecting his right shoulder and right elbow which occurred whilst he was lifting and stretching, loading heavy objects into a car. The Applicant recorded that his shoulder and elbow became sore on an awkward lift and stretch, and that he first noticed his symptoms on 30 January 2017 at approximately 8:30 AM.[46] He stated that he first sought medical treatment from a physiotherapist on 8 February 2017, and that he expected to be absent from work due to his injury for less than 12 weeks.[47][45] Exhibit 2 T9 pages 17 – 22.[46] Exhibit 2 PT9 at page 19.[47] Exhibit 2 PT9 at page 19, items 19 – 24. By a determination dated 13 April 2017, liability was accepted under section 14 of the Act for “calcify in tendinitis of shoulder (right)”.[48][48] Exhibit 2 T14 pages 35 – 36. On 12 July 2019, Comcare sent the Applicant a notice of intention to determine no present liability under sections 16 and 19 of the SRC Act with respect to the “calcifying tendonitis of shoulder (right)” Injury.[49] That notice was given effect in a determination dated 16 August 2019. Following a request for review,[50] that determination was affirmed by a reviewable decision dated 13 September 2019.[51] The Applicant lodged an Application for Review of this reviewable decision in the Tribunal on 16 September 2019. It was allocated Application Number 2019/5825.[49] Exhibit 2 T48 at page 139. [50] Exhibit 2 T49 at page 141. [51] Exhibit 2 T55 at page 154.