Sheppard and Comcare - [2014] AATA 157

[2014] AATA 157

Division GENERAL ADMINISTRATIVE DIVISION

File Number(s)

2012/5391 & 2013/5378

Re

Jon Sheppard

APPLICANT

And

Comcare

RESPONDENT

DECISION

Tribunal
Mr S. Webb, Member

Date 21 March 2014

Place Canberra
The decisions under review are affirmed.
.........................[sgd]...............................................
Mr S. Webb, Member
COMPENSATION – neck and pain syndrome injury claims – no frank injury – no objective evidence of neck pathology - soft tissue neck injury not established by probative evidence – back injury claim rejected – back symptoms not attributable to claimed neck injury - neck symptoms not significantly contributed to by employment - unreliable and inconsistent evidence – medical evidence reliant upon applicant’s unreliable account – theories of causation – possibility and plausibility not sufficient – employment contribution to neck ailments not established as significant - decisions affirmed.
Safety, Rehabilitation and Compensation Act 1988, ss 4, 5A, 5B, 7, 14
Asioty v Canberra Abattoir Pty Ltd [1989] HCA 40
Bater v Bater [1950] 2 All ER 458
Federal Broom Co Pty Ltd v Semlitch [1964] 110 CLR 626
Jones v Dunkel (1959) 101 CLR 298
Mellor v Australian Postal Corporation [2009] FCA 504
Repatriation Commission v Smith (1987) 74 ALR 537
Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262
REASONS FOR DECISION
Mr S. Webb, Member
21 March 2014

Jon Sheppard claimed compensation for neck injuries and chronic pain he attributes to employment by the Attorney-General’s Department and, subsequently, by the Clean Energy Regulator. Comcare refused the claims by primary determination and on reconsideration. Mr Sheppard applied for review.
Confidentiality
In the course of proceedings, Mr Sheppard sought orders supressing his name from publication and protecting certain documents he filed from disclosure or publication. The documents related to Mr Sheppard’s employment by the Attorney-General’s Department. Some of the documents contained highly sensitive private information of individuals who are not in any way relevant to the present proceedings. In order to deal properly with the documents, I gave the Attorney-General’s Department opportunity to be heard about appropriate orders. Orders were duly made.
Mr Sheppard informed me that he intended to put on evidence in support of his request for non-publication of his name. This matter was held over to be determined at the hearing. Ultimately Mr Sheppard withdrew this aspect of his request for confidentiality orders.
Injury claims
The substantive issues for determination relate to the two compensation claims Mr Sheppard made in respect of neck injuries and chronic pain.
The first claim, dated 9 April 2012, relates to a “pain syndrome and cervical strain” affecting his “cervical spine (neck)” that occurred or was first noticed on 20 March 2008, when he first sought medical treatment from Mr Bloom, a physiotherapist[1]. Mr Sheppard was employed by the Attorney-General’s Department at that time.
[1] T68 folio 248.
In the claim, Mr Sheppard set out the following causal factors –

24. What were you doing at the time you were injured or contracted your illness?

7.

Working

Excessive frequency neck rotation and underlying weakness of neck…

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: [2014] AATA 157
Decision Date: 21 March 2014

CaseChat Overview and Summary

Jon Sheppard applied for a review of Comcare's rejection of his claims for compensation for neck injuries and chronic pain he attributes to his employment by the Attorney-General's Department and the Clean Energy Regulator. The Tribunal affirmed the decisions of Comcare. Mr Sheppard submitted that repetitive 'down-left' neck rotations with incorrect posture over long periods while using a computer at his desk at work, caused or aggravated symptoms in his neck in February or March 2008 and in October or November 2011. He maintained that the symptoms in his neck were not treated, and they were prolonged or exacerbated by continuing work duties, which caused them to become chronic and entrenched, in the form of a chronic pain syndrome affecting his neck and shoulder girdles. The Tribunal rejected Mr Sheppard's claims on the basis that his evidence was not reliable and that the medical evidence did not establish a causal link between his employment and the injuries claimed.

Orders