Singh and Comcare (Compensation) - [2023] AATA 720

Singh and Comcare (Compensation) [2023] AATA 720 (28 March 2023)
Division:GENERAL DIVISION
File Number(s): 2021/1228 and 2021/7716
Re:Sneh Singh
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Senior Member G Lazanas
Dr L Bygrave, Member
Date:28 March 2023
Place:Sydney

The Tribunal affirms the reviewable decisions.
..........................[SGD]..............................................
Senior Member G Lazanas
CATCHWORDS

COMPENSATION – whether injury or disease – whether ailment – whether either or both of the falls occurring during course of employment aggravated and or accelerated pre-existing osteoarthritis in the hip that was contributed to, to a significant degree by employment – decisions affirmed

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 5A, 5B, 14

CASES

Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468
Prain v Comcare (2017) 256 FCR 65
Telstra Corporation Ltd v Hannaford (2006) 151 FCR 253
Vros and Australian Postal Corporation (Compensation) [2021] AATA 79

SECONDARY MATERIALS

Melhorn, MD, J. M., Talmage, MD, J. B., Ackerman III, MD, W.E., Hyman, MD, M.H., AMA Guides to the Evaluation of Diseases and Injury Causation, 2^nd ed., Chicago, Illinois.

REASONS FOR DECISION
Senior Member G Lazanas
Dr L Bygrave, Member
28 March 2023

The Applicant, Ms Sneh Singh, is 63 years of age. The Applicant has worked for the Department of Human Services (now Services Australia) since early 1990 in a full-time capacity and, more recently, part-time. The Applicant suffered from osteoarthritis in her right hip and, in July 2022, had surgery in the public health system to treat her condition.
The Applicant is seeking review of two decisions made by Comcare (the Reviewable Decisions) pursuant to the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act) in respect of two incidents involving falls as described further below. Broadly, the issues for determination by the Tribunal are whether those falls relevantly contributed to or aggravated her pre-existing osteoarthritis condition.
In Proceeding 2021/1228, Comcare decided on 2 March 2021 to affirm a determination made by Comcare on 19 January 2021 that it is not liable to pay compensation under s 14 of the SRC Act in respect of “Osteoarthritis of the [right] hip with a geode in the femoral head” (the First Reviewable Decision).[1] The Applicant had lodged this claim on 17 November 2020. The Applicant claimed that she injured her right hip on 29 July 2016 as a result of tripping over a cord while walking away from her desk at work (the July 2016 Fall).
[1] Proceeding 2021/1228 T-Doc T39, p 151.
In Proceeding 2021/7716, Comcare decided on 11 October 2021 to affirm a determination made by Comcare on 2 September 2021 that it is not liable to pay compensation under s 14 of the SRC Act in respect of “leg pain (right hip and leg) or aggravation thereof” (the Second Reviewable Decision).[2] The Applicant had lodged this claim on 6 July 2021. The Applicant claimed that she had injured her right hip on…

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: [2023] AATA 720
Decision Date: 28 March 2023

CaseChat Overview and Summary

In Proceeding 2021/7716, the Administrative Appeals Tribunal considered a decision by Comcare to affirm its earlier determination that it was not liable to pay compensation under the *Safety, Rehabilitation and Compensation Act 1988* (Cth) (SRC Act) for "leg pain (right hip and leg) or aggravation thereof". The applicant had lodged a claim for compensation following a fall at a shopping mall during her work lunch break on 18 January 2016. This claim was made in addition to a previously accepted claim for a fall on 18 July 2016.

The Tribunal was required to determine four issues. Firstly, whether the applicant's previously accepted condition involved any acceptance of liability by Comcare for a condition relating to her right hip. Secondly, whether the osteoarthritis of the right hip, for which the applicant sought compensation, required the application of the causal test for an "injury (other than a disease)" under s 5A(1)(c) of the SRC Act, or the causal test for a "disease" under s 5B(1) of the SRC Act. Thirdly, the Tribunal had to determine if there was a requisite causal nexus between either or both of the falls in January and July 2016 and the applicant's right hip osteoarthritis.

The Tribunal's reasoning focused on the causal connection between the employment-related falls and the applicant's pre-existing osteoarthritis. After considering evidence from the applicant and medical practitioners, the Tribunal found that neither the January 2016 fall nor the July 2016 fall aggravated or exacerbated the applicant's right hip osteoarthritis. Consequently, the Tribunal concluded that Comcare was not liable to pay compensation under the SRC Act.

The Tribunal affirmed the Reviewable Decisions made by Comcare.

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

In Proceeding 2021/7716, Comcare decided on 11 October 2021 to affirm a determination made by Comcare on 2 September 2021 that it is not liable to pay compensation under s 14 of the SRC Act in respect of “leg pain (right hip and leg) or aggravation thereof” (the Second Reviewable Decision).[2] The Applicant had lodged this claim on 6 July 2021. The Applicant claimed that she had injured her right hip on 18 January 2016 when she fell over at a shopping mall during her work lunch break (the January 2016 Fall).[2] Proceeding 2021/7716 T T-Doc T27 p. 106. The Applicant previously made a claim in respect of the July 2016 Fall which was previously accepted by Comcare (the Accepted Condition), about which it is necessary to provide further background. This is because it figured prominently in the Applicant’s submissions as the Applicant’s lead argument was that the Accepted Condition included acceptance by Comcare of liability for an injury to her right hip in relation to the July 2016 Fall. The Applicant had several, further and alternative arguments dependent on our conclusions, which necessitate four different issues for determination by the Tribunal, as set out below. As these reasons will explain, Comcare is not liable to pay the Applicant compensation under the SRC Act as the Tribunal finds the January 2016 Fall and the July 2016 Fall did not aggravate or exacerbate the Applicant’s right hip osteoarthritis condition. It follows that the Reviewable Decisions should be affirmed.THE ISSUES FOR DETERMINATION BY THE TRIBUNAL The first issue that arises for determination by the Tribunal is did the Accepted Condition involve any acceptance of liability by Comcare for any condition relating to the Applicant’s right hip? The second issue is does the osteoarthritis of the right hip condition for which the Applicant contends Comcare is liable require the application of the causal test for an “injury (other than a disease)” as set out in s 5A(1)(c) (as the Applicant argued), or the causal test for a “disease” as set out in s 5B(1) of the SRC Act (as the Respondent argued)? The third issue concerns whether there is the requisite causal nexus (depending on the answer to the second issue) between either or both of the falls in January 2016 and July 2016 and the Applicant’s osteoarthritis of the right hip for which the Applicant claims Comcare is liable? The evidence before us comprised of written statements and oral evidence of the Applicant, as well as written reports and oral evidence of two medical practitioners, namely, Dr Mark Ridhalgh and Associate Professor Neil McGill, who were both briefed to prepare reports for Comcare. There was also a written medical report of Dr Siri Kannangara in evidence before us, however, he was not able to attend to give oral evidence due to work commitments. In addition, the Respondent had filed T-Documents including Supplementary T-Documents and there were numerous documents produced under summons by, amongst others, various medical centres that the Applicant had attended. Many of the documents before us were helpfully collated as a Tender Bundle prepared by the Respondent. References to documents in our reasons are to the documents in the Tender Bundle (TB) or the T-Documents (T-Doc /Supplementary T-Doc) or Transcript, as indicated. Some of these documents are specific to the respective Proceedings, that is, Proceeding 2021/1228 and Proceeding 2021/7716, as also indicated.

Ratio Decidendi

Legal Principle Established

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