Shiree Power and Comcare - [2015] AATA 471

[2015] AATA 471

Division GENERAL ADMINISTRATIVE DIVISION

File Numbers

2013/4958, 2015/0137

Shiree Power

APPLICANT

And

Comcare

RESPONDENT

DECISION

Tribunal
Dr James Popple, Senior Member

Date 30 June 2015

Place Canberra
1.      In application 2013/4958, Comcare’s decision on 12 August 2013 is set aside and, in substitution, the following decision is made:

The applicant continues to suffer the effects of the compensable injury of 18 October 2010. Comcare remains liable under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) to pay the applicant compensation in respect of that injury. Comcare is required, under s 16 of the SRC Act, to pay the applicant compensation in respect of the cost of her medical treatment for that injury.

2.      In application 2015/0137, Comcare’s decision on 23 December 2014 is set aside and, in substitution, the following decision is made:

The applicant suffers from an adjustment disorder with mixed features of anxiety and depressed mood, with a date of injury of 18 August 2013. Comcare is liable under s 14 of the SRC Act to pay the applicant compensation in respect of that injury. Comcare is required, under s 16 of the SRC Act, to pay the applicant compensation in respect of the cost of her medical treatment for that injury.

3.      In each of applications 2013/4958 and 2015/0137, the following question is remitted to Comcare for determination:

Is Comcare required by s 19 of the SRC Act to pay Ms Power compensation for incapacity for work and, if so, how much?

4.      Comcare shall pay the costs of the proceedings in each of applications 2013/4958 and 2015/0137.

..............................[sgd]..........................................
James Popple, Senior Member
CATCHWORDS
COMPENSATION — Commonwealth employees — whether Applicant continues to suffer effects of injury — whether fall an aggravation — Applicant exaggerates symptoms — reliance on analgesics and ‘TENS’ machine — whether Applicant has psychiatric disorder — whether contributed to, to a significant degree, by employment — decision under review set aside — Applicant entitled to compensation for medical expenses — whether Applicant entitled to compensation for incapacity for work remitted to Comcare.

LEGISLATION
Safety, Rehabilitation and Compensation Act 1988, ss 5B(3), 14, 16, 19, 67

CASES
Commonwealth v Borg, unreported, Federal Court of Australia, Full Court, 15 November 1991

Jagtenberg and Australian Postal Corporation [1998] AATA 600

REASONS FOR DECISION
James Popple, Senior Member
30 June 2015
Summary

I set aside Comcare’s decisions denying the applicant compensation under the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act). The applicant continues to suffer from the effects of a physical injury arising out of her employment. The applicant also suffers from a psychological injury. Comcare must pay her compensation in respect of the cost of her medical treatment for both injuries. I remit, for Comcare’s determination, the question whether Comcare is also required to pay the applicant compensation for incapacity for work.
Background
Ms Shiree Power worked as a casual “house attendant” at the Lodge, the Prime Minister’s official residence in Canberra. She…

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.

Continue reading Shiree Power and Comcare

Details

AGLC: Shiree Power and Comcare [2015] AATA 471
Case: [2015] AATA 471
Decision Date: 30 June 2015

CaseChat Overview and Summary

The decision in Shiree Power and Comcare concerns an application for judicial review brought by Ms Shiree Power against Comcare. Ms Power was injured in a workplace accident in 2010 and has since been the subject of several determinations regarding her entitlement to compensation for the effects of her injury. The primary focus of the case is whether Ms Power continues to suffer the effects of her injury and whether she is entitled to compensation for medical expenses or incapacity for work. Additionally, the court examined whether Ms Power has a psychological condition significantly contributed to by her injury, and if so, whether she is entitled to compensation for that condition.

The legal issues before the court were whether Ms Power continues to suffer the effects of the compensable injury, whether she is entitled to compensation for medical expenses or incapacity for work, and whether she suffers from a psychological condition significantly contributed to by her compensable back injury. The court needed to assess the medical evidence and video surveillance evidence, including the impact of a fall Ms Power claimed to have had at a shopping centre, to determine whether the effects of her injury had ceased. Comcare had the burden of proving that the effects of the compensable injury had ceased.

The court reviewed evidence from several medical witnesses, including Ms Power’s general practitioner, Dr Tim Watson. Dr Watson diagnosed Ms Power with a severe lumbar spine sprain, chronic pain syndromes, and an adjustment disorder with depressed mood, likely caused by the initial lumbar spine injury. The court found that Ms Power does continue to suffer the effects of her compensable injury and that Comcare remains liable to pay her compensation under the Safety, Rehabilitation and Compensation Act 1988. The court set aside Comcare’s decisions rejecting liability for compensation for permanent impairment and non-economic loss for aggravation of disc degeneration, as well as for a psychological injury as a secondary condition. The court also found that Ms Power suffers from an adjustment disorder with mixed features of anxiety and depressed mood, significantly contributed to by her compensable back injury, and that Comcare is liable to pay her compensation for that condition. However, the question of whether Comcare is required to pay Ms Power compensation for incapacity for work was remitted to Comcare for determination.

In conclusion, the court ordered that Comcare’s decision on 12 August 2013 be set aside, and it substituted a decision that Ms Power continues to suffer the effects of her compensable injury and that Comcare must pay her compensation for medical expenses. Similarly, the court set aside Comcare’s decision on 23 December 2014, substituting a decision that Ms Power suffers from a psychological condition significantly contributed to by her compensable back injury and that Comcare must pay her compensation for medical expenses. The court remitted the question of whether Comcare is required to pay Ms Power compensation for incapacity for work to Comcare for determination. Finally, the court ordered Comcare to pay the costs of the proceedings.

Orders

Orders of the court

1. In application 2013/4958, Comcare’s decision on 12 August 2013 is set aside and, in substitution, the following decision is made:

The applicant continues to suffer the effects of the compensable injury of 18 October 2010. Comcare remains liable under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) to pay the applicant compensation in respect of that injury. Comcare is required, under s 16 of the SRC Act, to pay the applicant compensation in respect of the cost of her medical treatment for that injury.

2. In application 2015/0137, Comcare’s decision on 23 December 2014 is set aside and, in substitution, the following decision is made:

The applicant suffers from an adjustment disorder with mixed features of anxiety and depressed mood, with a date of injury of 18 August 2013. Comcare is liable under s 14 of the SRC Act to pay the applicant compensation in respect of that injury. Comcare is required, under s 16 of the SRC Act, to pay the applicant compensation in respect of the cost of her medical treatment for that injury.

3. In each of applications 2013/4958 and 2015/0137, the following question is remitted to Comcare for determination:

Is Comcare required by s 19 of the SRC Act to pay Ms Power compensation for incapacity for work and, if so, how much?

4. Comcare shall pay the costs of the proceedings in each of applications 2013/4958 and 2015/0137.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

On 13 January 2015, Ms Power applied to the Tribunal, under s 64 of the SRC Act and s 29(1) of the AAT Act, for review of that decision.Decisions under review The decisions under review are Comcare’s reconsidered decisions:·on 12 August 2013, rejecting liability for compensation for permanent impairment and non-economic loss for aggravation of disc degeneration L4-L5/L5-S1; and·on 23 December 2014, rejecting liability for a psychological injury as a secondary condition.Issues The issues in this review are:·Does Ms Power continue to suffer the effects of the compensable injury?·If so, is she entitled to compensation for medical expenses (under s 16 of the SRC Act) or for payments for incapacity for work (under s 19)?·Does Ms Power suffer from a psychological condition which was significantly contributed to by her compensable back injury?·If so, is she entitled to compensation for that condition (under s 14)?Does Ms Power continue to suffer the effects of the compensable injury? In deciding whether Ms Power continues to suffer the effects of the compensable injury, I must have regard to medical evidence and video surveillance evidence. I must also consider the effect of the fall that Ms Power says she had at a shopping centre. Comcare bears a practical onus of demonstrating that the effects of the compensable injury have ceased.[1][1] Commonwealth v Borg, unreported, Federal Court of Australia, Sweeney, Jenkinson and Gray JJ, 15 November 1991. The court’s reasons appear, in their entirety, in an editor’s note to Telstra Corporation Ltd v Arden (1994) 20 AAR 285 at 299–310: see at 307 per Jenkinson J, with whom Sweeney J agreed.Medical witnesses At the hearing, evidence was given by five medical witnesses. The evidence of four of those witnesses is relevant to Ms Power’s back injury.[2] I have summarised their evidence below.Dr Tim Watson[2] The evidence of the fifth medical witness (Dr Robert Lewin) is discussed below in relation to Ms Power’s claimed psychological condition (see [78]–[80]). Dr Tim Watson has been Ms Power’s general practitioner (GP) since 16 July 2013. In a report on 4 February 2014, he diagnosed Ms Power as suffering from a severe lumbar spine sprain, lumbosacral chronic pain syndrome, cervical and thoracic chronic pain syndrome, and an adjustment disorder with depressed mood. He also said that it was likely that she had developed fibromyalgia. Referring to various magnetic resonance imaging (MRI) scans that Ms Power had had, Dr Watson said that it appeared that she had annular tears and degeneration of her spine. At the hearing, Dr Watson agreed that an annular tear can become asymptomatic over time, but said that Ms Power’s had been getting worse. Dr Watson made the same diagnoses in another report on 2 February 2015, except that he then characterised the lumbosacral chronic pain syndrome as an initial complication, and made no mention of cervical and thoracic chronic pain syndrome. He also diagnosed fibromyalgia, possibly caused by the initial lumbar spine injury.

Ratio Decidendi

Legal Principle Established

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Division	GENERAL ADMINISTRATIVE DIVISION
File Numbers	2013/4958, 2015/0137
Shiree Power
APPLICANT
And	Comcare
RESPONDENT

Tribunal	Dr James Popple, Senior Member
Date	30 June 2015
Place	Canberra