Sequeira and Comcare

[2005] AATA 1284

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 1284

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2005/333

GENERAL ADMINISTRATIVE  DIVISION		)
Re		LIONEL SEQUEIRA

Applicant

And COMCARE

Respondent

DECISION

Tribunal Ms N Bell, Senior Member

Date22 December 2005

PlaceSydney

Decision The decision under review is affirmed.

..............................................................

Ms N Bell
  Senior Member

COMPENSATION – Claim for Incapacity Payments – Liability Accepted In Respect of Back Condition – Applicant Contends Absences Related to Back Condition – No Medical Certificates Provided – Operation of Section 54 of the Safety, Rehabilitation and Compensation Act - Lack of Certification Is Bar to Claim Being Successful – Decision Under Review Affirmed

Safety, Rehabilitation and Compensation Act 1988

Kooragang Cement Pty Limited v Bates 35 NSWLR 452

Cao v Australian Postal Corporation 61 ALD 299

REASONS FOR DECISION

22 December 2005 Ms N Bell, Senior Member

1.      Mr Sequeira worked for Centrelink from 25 July 1988 to 30 October 1998 and for AAMI from 30 August 1999 to 3 September 2004.  On 25 October 1991, Mr Sequeira suffered an injury to his lower back when he was hit by a car.  Liability was accepted by Comcare in respect of “a soft tissue injury to the lower back”.  Compensation was paid to Mr Sequeira in relation to an incapacity for absence from work on 28 and 29 October 1991.  No compensation was paid in relation to medical expenses.  On 16 March 2004, Mr Sequeira claimed compensation for permanent impairment.

2.      Comcare accepted liability in respect of a ten per cent permanent impairment of Mr Sequeira’s lower back in accordance with sections 24 and 27 of the Safety Rehabilitation and Compensation Act 1988 (“the Act”) and Table 9.6 of the Comcare Guide.  On 1 September 2004, Mr Sequeira claimed compensation for incapacity for absences from work at Centrelink and AAMI, which he attributed to his lower back injury.  He claimed absences from work by reference to printouts of leave records from each employer.  Comcare refused compensation for incapacity on the basis that no medical evidence, including medical certificates, had been provided by Mr Sequeira to establish that the absences from work were related to his compensable injury.  On reconsideration, this decision was affirmed.  This is the reviewable decision under consideration in this application.

3.      At the hearing, Mr Sequeira narrowed the scope of his claim to a range of recreation leave days highlighted by him on a Centrelink leave card (R1) and two days of leave without pay highlighted on page 97 of the T documents (T 22).  In relation to his employment with AAMI, Mr Sequeira narrowed his claim to a number of recreation leave days highlighted by him on a AAMI leave record at pages 65 and 66 of the T documents (T 22).  He also claimed in respect of three days of leave without pay, recorded at page 66 of the T documents.

issues

4.      The first issue to be considered in this application is whether the absence of medical certificates in relation to the incapacity claimed by Mr Sequeira is an absolute bar to the success of his claim.  Section 54 of the Act is relevant to this question.  Section 54 of the Act provides in part:

… (2)   A claim shall be made by giving the relevant authority:

(a)       a written claim in accordance with the form approved by Comcare for the purposes of this paragraph; and

(b)       except where the claim is for compensation under section 16 or 17—a certificate by a legally qualified medical practitioner in accordance with the form approved by Comcare for the purposes of this paragraph.

(3)       Where a written claim, other than a claim for compensation under section 16 or 17, is given to a relevant authority under paragraph (2)(a) and the claim is not accompanied by a certificate of the kind referred to in paragraph (2)(b), the claim shall be taken not to have been made until such a certificate is given to that authority.

… (5)   Strict compliance with an approved form referred to in subsection (2) is not required and substantial compliance is sufficient.

5.      If there is no such bar, the question arises as to whether, Mr Sequeira’s injury “results in an incapacity to work” (see s 14 of the Act).  This is a question of fact and will depend on the evidence available in support of each of his claimed periods of incapacity (see Kooragang Cement Pty Limited v Bates (35 NSWLR 452).

mr sequeira’s evidence of the link between his injury and his absences from work

6.      Mr Sequeira referred to the leave records noted above to identify the days in respect of which he wished to claim.  He said that he identified the various days purely from memory and had no reference to any other records such as notes or diaries.

7.      Mr Sequeira agreed that he had not presented certificates in relation to the days claimed and said he wasn’t aware that this was required.  He referred the Tribunal to reports from Drs Wallace, Silva and Young, which are discussed later in these reasons.

8.      In cross examination, Mr Sequeira agreed his memory is not perfect and in some cases, when shown available leave applications, he agreed the leave had not been related to his back.  In most cases, where leave applications were not available, he conceded he had no specific recollection of the day or days concerned.  In no case did he have a medical certificate or any other independent verification of the reason for his absence from work.  He had no diary notes, or other personal aids to his memory and relied entirely on his memory.

9.      Mr Sequeira had claimed leave without pay for two days but conceded in cross examination that neither of the days was related to his back condition and instead, one day was for the purpose of taking his daughter to the doctor and the other was for strike action.  In cross examination in relation to his AAMI leave, Mr Sequeira made various similar concessions as he had for his Centrelink absences from work.  In relation to a number of days, he agreed the leave was not related to his work.  In all cases Mr Sequeira had no medical certificates and no independent records verifying his reasons for the leave.  As with his Centrelink leave, Mr Sequeira relied entirely on his memory and had no diary notes or similar aids.

10.     Mr Sequeira had claimed unpaid sick leave and in relation to those days for which medical certificates were available, he agreed those certificates showed that his illness was not related to his back condition.  Again, in relation to other days of unpaid sick leave, no certificates were available and he relied only on his unaided memory.  Mr Sequeira conceded that he is not as sure now, as he was, that all the days claimed by him were related to his back.

11.     Mr Sequeira provided a report dated 19 September 2003 by Dr Wallace, Orthopaedic Surgeon, in which Dr Wallace said:

He was employed on a full time basis at the time of his injury in October 1991.  He was off work for one week after his injury and then returned to work at his pre-injury duties.

Since his accident he has been off work for up to two months per year during periods of exacerbations of his lumbar spinal pain.

12.     Mr Sequeira also provided a report dated 3 June 2004 by Dr Silva, Orthopaedic Surgeon, in which Dr Silva said:

The summary of absence from work because of his injury amounts to the initial absence of five days and the subsequent absence he says amounts to about one day of sick a month because of low back pain and stiffness which prevents him from getting to work.

Since 25.10.91 he has experienced episodic low back pain and this becomes quite difficult once every three months requiring some absence from work and the application of liniments and massages and after a couple of days he gets better and gets back to work.  His last absence was on 1.2.04 and 2.6.04 because of low back pain and again he had massages from him mum and had some back pain and is now better.

13.     In an undated report received by Comcare in January 2005 from Dr Young, Mr Sequeira’s general practitioner, Dr Young noted that he had treated or seen Mr Sequeira in respect of his back pain on 26 May 1993, 8 September 1993, 16 June 1998, 2 September 1997, 18 January 2000, 18 September 2001 and 3 April 2001.  Dr Young said:

Although Mr Sequeira has not seen me on each absence of sick leave, I do believe that the claimed absences can be reasonably attributed to the aggravation of prior injury, compounded by the inherent physical disability suffered by him.

14.     I note none of those dates correspond with the dates of the absences claimed by Mr Sequeira.

15.     Mr Sequeira also provided a statement by Mr Mark Salm, an employee of Centrelink dated 6 June 2005, in which Mr Salm stated that since Mr Sequeira’s accident, there was an increase in the number of days on which he was unfit for work and were mostly the result of his injured back.

16.     A statement was also provided from Mr Steven Fisher of GTM Employment Agency dated 6 June 2005, in which Mr Fisher said that in the four years he worked with Mr Sequeira at Centrelink he remembers occasions on which Mr Sequeira would take sick leave due to his back pain and stated that the majority if not all the times he called in sick, were due to his back problem.

17.     Mr Sequeira also provided a statement from Susan Hopcroft who worked with Mr Sequeira at AAMI between the years 1998 and 2004.  She stated that Mr Sequeira had a considerable amount of paid and unpaid sick leave due to an injury to his back.

consideration

18.     The requirements of section 54 are clear and unambiguous (Cao v Australian Postal Corporation (61 ALD 299)). It is also clear that Mr Sequeira has not provided medical certificates of the kind required by section 54(2) or, indeed, of any kind. Notwithstanding the allowance made in section 54(5) that substantial compliance with section 54(2) is sufficient, the reports of Drs Wallace, Silva and Young do not provide sufficient, or sufficiently particular, information to support his wide ranging claim.

19.     This absence of certificates or particular expert medical substantiation of Mr Sequeira’s claim is sufficient to dispose of the matter.  However, even if this was not so, I note the many concessions made by Mr Sequeira in his evidence and his increasing uncertainty, as he gave his evidence, as to the correctness of his recollection.  Nor am I persuaded by the statements of Mr Sequeira’s former colleagues.  Those statements are also very general and vague.

Decision

20.     I affirm the decision under review.

I certify that the 20 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Senior Member

Signed:         ..........[Linda Blue]...........................................
  Associate

Date of Hearing  10 November 2005
Date of Decision  22 December 2005 
Counsel for the Respondent     Mr Mark Best
Solicitor for the Respondent     Dibbs Abbott Stillman Lawyers