Salehi and Comcare (Compensation) - [2021] AATA 3294

Salehi and Comcare (Compensation) [2021] AATA 3294 (13 September 2021)
Division:GENERAL DIVISION
File Number: 2018/6181
Re:Khan Salehi
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Senior Member C. J. Furnell
Date:13 September 2021
Place:Melbourne

The decision under review is affirmed.
...................[SGD].....................................................
Senior Member C. J. Furnell
Catchwords
COMPENSATION – Commonwealth employee – low back condition – degenerative change in lumbar spine – whether applicant suffers from medical condition – whether disease or injury other than disease – applicant attributes condition to prolonged sitting at work – other work-related factors – employment did not contribute to disease to a degree that is substantially more than material – decision under review affirmed
Legislation
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Cases
Bailey v Broadsword Marine Contractors Pty Ltd [2017] FCAFC 219
Comcare v Laidlaw [1999] FCA 40
Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 200 CLR 286
Lees v Comcare (1999) 29 AAR 350
Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468
Prain v Comcare [2017] FCAFC 143
Schodde v Comcare [2015] AATA 598
Woodhouse v Comcare [2021] FCAFC 95
Secondary Materials
LexisNexis Australia, Cross on Evidence, vol 1 (online)
REASONS FOR DECISION
Senior Member C. J. Furnell
13 September 2021

The Applicant submits that he is entitled to compensation under the Safety, Rehabilitation and Compensation Act 1988 (“the Act”). In a compensation claim of 12 June 2017, that entitlement was said to arise with respect to two conditions: “lower back injury and anxiety due to injury.”[1]
[1] T3, p.2.
A liability to pay such compensation was denied in a determination of 4 August 2017.[2] The conditions with respect to which the determination was made were described as “low back pain related to degenerative change in the lumbar spine with probable radicular symptoms” and “adjustment disorder with depressed and anxious mood”.
[2] T15.1, p.168.
On 29 September 2017,[3] that determination was affirmed by a decision of a delegate of the Department of Human Services.
[3] T1.
The Applicant applied to the Tribunal for review of that decision. Leading up to the hearing of this application, the claim with respect to anxiety and depression was discontinued.
Hence, the sole issue in this proceeding is whether the respondent is liable under the Act to pay compensation to the applicant with respect to a lower back condition.
I have decided that the respondent is not so liable. Before delving into the reasons for doing so, however, I should first outline some aspects of the legislative and factual context.
ASPECTS OF LEGISLATIVE CONTEXT
Section 14(1) of the Act is central to this proceeding. Under it, the respondent is liable to pay compensation as required and provided for in the Act[4] “… in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.”
[4] Lees v Comcare (1999) 29 AAR 350 at [27].
Hence, in order for a liability to pay compensation…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] AATA 3294
Decision Date: 13 September 2021

CaseChat Overview and Summary

This matter concerned an appeal by Mr Salehi against a decision by Comcare. Mr Salehi sought compensation for a low back condition, specifically degenerative changes in his lumbar spine, which he attributed to prolonged sitting at work, as well as other work-related factors such as prolonged standing and significant bending, twisting, or lifting. The Administrative Appeals Tribunal was required to determine whether Mr Salehi suffered from a compensable medical condition under the relevant legislation, and if so, whether his employment contributed to that condition to a degree that was substantially more than material.

The Tribunal considered medical evidence, including opinions from Dr Journeaux and Dr Burke. Dr Journeaux acknowledged that prolonged standing and significant bending, twisting, or lifting could potentially cause symptomatic aggravation of Mr Salehi's condition. However, the Tribunal found no medical evidence to satisfy it that these additional factors, either alone or in combination with prolonged sitting, had actually caused such aggravation or contributed to the back condition to a degree substantially more than material. The Tribunal noted Dr Burke's opinion suggesting the condition would have occurred at that stage of life irrespective of employment.

The Tribunal concluded that Mr Salehi's back condition was a disease that was not contributed to by his employment to a degree substantially more than material. Consequently, Comcare was not liable to pay compensation. The decision under review was affirmed.

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

Dr Journeaux accepted that, as well as prolonged sitting, prolonged standing and significant bending, twisting or lifting had the potential to result in symptomatic aggravation of the applicant’s condition.[94] There is, however, no medical evidence before me on the basis of which I could be satisfied that these two additional, allegedly employment-related, factors – whether alone or in combination with the prolonged sitting factor – had, in fact, caused any such symptomatic aggravation (or made any contribution to the applicant’s back condition, let alone a contribution to a degree that is substantially more than material).[95] Indeed, the material before me is suggestive of a contrary conclusion noting, for example, Dr Burke’s opinion that the applicant’s condition “would have occurred at about this stage of life irrespective of him being employed…”.[96] [94] Exhibit R9 (report of 19 October 2020).[95] That the applicant did not seek to adduce such evidence might have reflected a misunderstanding as to where the burden of persuasion lies in this proceeding. In his undated Statement of Facts, Issues and Contentions, the applicant notes that “there is no strong evidence that this back issue is…not work related injury”.[96] T13, p.141.CONCLUSION I have found that the applicant’s back condition is a disease which was not contributed to, to a degree that is substantially more than material, by his employment. As such, the respondent is not liable under the Act to pay compensation to the applicant with respect to his lower back condition. Accordingly, the decision under review is affirmed.

Ratio Decidendi

Legal Principle Established

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