Singleton and Comcare (Compensation)

Case [2018] AATA 4088

Singleton and Comcare (Compensation) [2018] AATA 4088 (1 November 2018)

Division:GENERAL DIVISION

File Number(s):      2017/3655

Re:Benjamin Singleton

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Senior Member Linda Kirk

Date:1 November 2018

Place:Canberra

The Tribunal affirms the reviewable decision dated 8 June 2017.

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

Senior Member Linda Kirk

Catchwords

COMPENSATION – whether the Applicant suffers from Chronic Pain Syndrome (CPS) – whether the Applicant suffers a permanent impairment resulting from CPS – the acceptance of an ‘injury’, as defined in ss 5A and 5B of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act), both precedes and defines the ambit of Comcare’s duty to consider compensation for injuries resulting in permanent impairment under s 24 of the SRC Act – on the basis of the medical evidence, the Applicant’s CPS is not determined to be an ‘injury’ for the purposes of the SRC Act – reviewable decision affirmed.

Legislation

Safety, Rehabilitation and Compensation Act 1988 ss 4, 5, 14, 24, 27, 28

Cases

Canute v Comcare (2006) 226 CLR 535

Comcare v Broadhurst [2011] FCAFC 39

Comcare v Canute [2005] FCAFC 262

Comcare v Farrell [2016] FCAFC 115

Telstra Corporation v Hannaford (2006) 151 FCR 253

Whittaker v Comcare (1998) 86 FCR 532

Secondary Materials

Guide to the Assessment of the Degree of Permanent Impairment (Edition 2.1)

REASONS FOR DECISION

Senior Member Linda Kirk

1 November 2018

BACKGROUND AND CLAIM

  1. Mr Benjamin Singleton (‘the Applicant’) was born in April 1972.[1] He served in the Australian Army between 7 June 1989 and 11 July 1993. He submitted a claim for workers’ compensation to the Military Compensation and Rehabilitation Service (MCRS) on 13 July 1992.[2] The claim concerned a ‘left-hand shoulder AC joint’ injury suffered on 2 December 1991. The MCRS accepted liability for ‘left acromio-clavicular joint strain’ on 13 January 1993. The Applicant was discharged from the army on medical grounds (relating to his left shoulder injury) on 6 July 1993.[3]

    [1] Applicant’s Statement of Facts, Issues and Contentions (SFIC) dated 12 April 2018 at paragraph 1.

    [2] T Documents, T3.

    [3] Respondent’s SFIC dated 10 May 2018 paragraphs 4-6.

  2. The Applicant submitted an application for an increase in disability pension with the Department of Veterans’ Affairs (DVA) on 24 June 1996.[4] He claimed that his left shoulder had worsened so that he could not move his arm most of the time or carry anything in his left hand. He claimed that he could not find permanent employment as anything that he was qualified to do he could not do ‘due to [his left] shoulder’.[5] The MCRS accepted liability for an interim payment of compensation for permanent impairment in relation to the Applicant’s left shoulder on 28 January 1998.[6] A final assessment of 10 per cent was made on 17 February 1998.[7]

    [4] T Documents, T16; Respondent’s SFIC paragraph 7.

    [5] Respondent’s SFIC paragraph 7.

    [6] T Documents, T35; Respondent’s SFIC paragraph 8.

    [7] T Documents, T36; Respondent’s SFIC paragraph 8.

  3. The Applicant commenced employment with the Australian Federal…

Continue reading Singleton and Comcare (Compensation)

Sign in free to access the full text

Details
AGLC
Singleton and Comcare (Compensation) [2018] AATA 4088
Case
[2018] AATA 4088
Decision Date

CaseChat Overview and Summary

This matter came before the Administrative Appeals Tribunal concerning a claim for compensation under the *Safety, Rehabilitation and Compensation Act 1988* (SRC Act). The applicant sought compensation for permanent impairment and non-economic loss, specifically alleging suffering from Chronic Pain Syndrome (CPS) resulting from an injury sustained to his right shoulder. The core of the dispute revolved around whether the applicant's condition constituted an "injury" as defined by the SRC Act, which is a prerequisite for Comcare's liability to provide compensation for permanent impairment.

The Tribunal was required to determine three key issues: first, whether the applicant had sustained an injury recognised as CPS; second, if so, whether this CPS injury resulted in a permanent impairment; and third, if a permanent impairment was established, the degree of that impairment according to the relevant guide. The applicant provided evidence detailing the incident where he injured his right shoulder, the subsequent medical treatment, and the significant impact of his ongoing chronic pain on his daily activities, including personal care, household tasks, and recreational pursuits.

In its reasoning, the Tribunal considered the legal principle that the acceptance of an "injury" under sections 5A and 5B of the SRC Act precedes and defines the scope of Comcare's duty to consider compensation for permanent impairment under section 24. Applying this principle to the evidence before it, the Tribunal found that the applicant's CPS was not determined to be an "injury" for the purposes of the SRC Act. Consequently, the Tribunal concluded that Comcare was not liable to pay compensation under sections 24 and 27 of the SRC Act in relation to the applicant's alleged chronic pain syndrome.

The Tribunal affirmed the reviewable decision.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The issues for determination by the Tribunal are whether the Applicant is entitled to compensation for permanent impairment and non-economic loss under ss 24 and 27 of the SRC Act and specifically:(1)Did the Applicant sustain an injury recognised as CPSand if so;(2)Does the Applicant suffer a permanent impairment resulting from the CPS injury and if so;(3)What is the degree of permanent impairment to be assessed in accordance with the Guide;EVIDENCE BEFORE THE TRIBUNALApplicant’s Evidence The Applicant tendered in evidence his signed witness statement dated 9 August 2018[46] and confirmed that its contents are true.[46] Exhibit A1 In his statement the Applicant described the circumstances surrounding the injury he sustained to his right shoulder:2. Was out in the field training Police for overseas deployment. Located at Blue Range Hut, Uriarra Forest ACT. It was late, dark and raining. We were planning within the hut when I went to my swag to collect some material and as I was returning to the hut I slipped on the wet ground. As I fell, I twisted to the right to avoid falling onto my left shoulder which had been replaced previously. I landed heavily onto my right shoulder causing instant pain. He further outlined the treatment he received following the injury to his shoulder:3. After seeing a specialist, I had surgery on my right shoulder. The surgeon was concerned that I may develop a pain syndrome, so a plan was developed to manage this. A nerve block was used during the surgery and then afterwards a ketamine drip was placed within the right shoulder. Later that day a nurse accidently removed the drip. As I would have to be returned to surgery to replace the block, it was decided it would be best just to leave the block out. This was the beginning of the chronic pain condition in my right shoulder. The Applicant describes in his statement the impact of the injury on his daily activities:4. Due to ongoing chronic pain I am unable to do many things that I did pre-injury. I cannot hang clothes on the line as my shoulder pain doesn’t allow me to reach high enough. Instead I use a clothes dryer that sits on the laundry bench so it easier for me to access. This causes extra expense and increased wear and tear on clothing. I have difficulties getting dressed particularly button up shirts and jumpers. It is very difficult putting on shoes and socks. Shopping is difficult as I cannot reach up to gather items off the higher shelfs (sic), pushing the trolley is also difficult. Therefore, I need to limit the amount of shopping I do.5. Most activities I do, I need to modify how I do them - such as walking and driving. I need to ensure I take breaks and limit the time I spend walking or driving.6. For heating during winter, we have a fireplace and I used to chop all of the wood using my right arm. Due to the right shoulder injury and pain I am no longer able to cut the wood. I now have to look for alternatives and pay more to have it delivered pre-split.7. As the pain has become worse it has also made it difficult for me to use my right hand. I get temperature changes in my right arm, hot and cold, numbness, swelling and mottling of the hand. My right hand sometimes sweats or becomes cold and clammy. This also occurs on my right arm. Several times a day I get pins and needles in my right hand. I also get a burning sensation in my right arm or it can also be sensitive to touch. At times a light t-shirt is enough to irritate the right arm when it is feeling sensitive. My right-hand swells and my fingers become stiff and sore. I am unable to type on a keyboard for extended periods and have noticed my fine motor skills have deteriorated to the point that holding and using a pen is difficult and causes pain.8. It is difficult to shower and undertake hygiene tasks. Comcare has provided me with a plastic aid to assist with wiping my bottom. It is a task I really struggle with. I have assistance three times a week by Warrigal Nursing Home for hygiene reasons. They also assist once a week with house cleaning. I cannot vacuum the whole house or mop the floors without causing additional pain and taking a lot of breaks.9. Every morning when I first get out of bed I need to run my right hand under warm/hot water to get it moving. I cannot open jars without assistance and have difficulties holding a toothbrush. As such I need to use an electric tooth brush and holding it up for two minutes is difficult.10. As my right arm/hand is my master hand, everyday living is made more difficult due to the pain. Since my left shoulder was replaced I had depended more on my master hand to complete everyday tasks. It is now the left am that I need to depend on more.11. The pain is always there, it is the intensity that changes. With more pain I become increasingly moody and withdrawn. I tend to snap easily and just want to shut down into myself. Some days the pain is so intense that it causes me to feel nauseas and I sometimes hold my breath for extended periods of time to try to cope.12. The pain keeps me from socialising or being part of a group. I don’t like being around others and prefer to deal with the pain myself. I avoid large groups as it makes me anxious that someone is going to bump or knock me and cause additional pain.13. I am very aware of my environment and avoid areas that could cause me to fall. I had a fall just over one year ago and had to wait on the floor until my son came home from school to help me up. I am unable to push myself up with my right arm to be able to get off the floor. I therefore cannot do any activity that requires me to get down low. I no longer go camping and 4WDrivng as it is too difficult and I no longer work on vehicle’s (sic). I grew up on a farm and was also a vehicle operator in the military so have spent a lot of time working on mechanical items, that was until I injured my right arm. I cannot undo nuts or bolts by hand and need to rely on others to assist me.14. My wife and I used to go out Ballroom and Latin American dancing together, however due to the right shoulder injury and associated pain I am unable to do this activity any more. Additionally, I cannot be around the crowds at the venues where this would be possible.15. I used to enjoy going shooting however cannot hold a rifle to my shoulder anymore and the kick would be way too painful even if I could hold the rifle properly. This is another activity that I have to alter and can only shoot with the rifle supported in a cradle. This means I would not be allowed to shoot competitively at all.16. Motorbike riding was also something I used to do. Reaching forward with the right shoulder and using the right hand to hold the accelerator is something I cannot do. If I was to ride again I would need to heavily modify the motorbike so I could ride it safely. This is also a consideration when driving a motor vehicle. I only drive an automatic now as I have difficulties holding the steering wheel just in my right hand whilst changing gears with my left arm. If I’m travelling any distance greater than the local shops I am driven by my wife. My medical appointments such as at the pain clinic in Sydney are only scheduled around when my wife can take the day off work.17. Whilst out shopping or even doing tasks at home I am limited to what I can carry. I cannot lift anything without discomfort and limit what I do pick up to 2kg as specified by my surgeon.18. I have difficulty sleeping as there is no such thing as a comfortable position and sometimes I wake up in immense pain. This then makes it difficult to get back to sleep.19. Every day it feels like I’m judged by others as my pain cannot always be seen by them. It can be simply picking up a parcel from the Post Office with my wife when a parcel is handed to me to carry. My wife steps forward to carry it instead which leaves the person wondering why I am making my wife carry it. This happens many times when we are out and whilst it might not seem like it, it does affect me. Just like when a short lady asks me to get something from the top shelf in the supermarket for her which I have to politely decline. It is embarrassing and a real limitation due to my right shoulder and the chronic pain.

Decision

Reasons for decision

The Tribunal is satisfied that the Respondent is not liable to pay compensation under ss 24 and 27 of the SRC Act in relation to ‘chronic pain syndrome’.DECISION The Reviewable Decision is affirmed.

Ratio Decidendi

Legal Principle Established

The Tribunal has no jurisdiction to review the amount of compensation payable in respect of the right shoulder and, there being no separate injury, it follows that the reviewable decision must be affirmed.[123]CONSIDERATION AND FINDINGS(1)Did the Applicant sustain an ‘injury’ recognised as ‘complex pain syndrome’?[123] Respondent’s Submissions at paragraph 43.Was liability correctly accepted by the Respondent? The first issue for determination requires the Tribunal to consider whether liability was correctly accepted by the Respondent in its determination dated 8 November 2016. In Hannaford, the Full Court of the Federal Court considered whether the Administrative Appeals Tribunal (‘AAT’) is empowered to make findings of fact that are contrary to those found by the original decision-maker under s 14 of the SRC Act, in circumstances where the AAT is undertaking a review of determinations under s 16 and s 19 of the SRC Act. Conti J, in Hannaford, with whom Heerey J and Dowsett J agreed, stated the following at [273]-[274]: … it should be concluded, upon the correct construction of the SRC Act, and in particular of the provisions thereof upon which I have focused attention in these reasons, that the AAT is empowered to make subsequent findings of fact in relation to the circumstances the subject of decision-making under ss 16 and 19 of the SRC Act, and also under ss 21 and 27 of the SRC Act, where the determination of the first instance decision-maker (here of course Telstra) made under the auspices of s 14 of the SRC Act remains in operation in the sense that it has not been the subject of any inconsistent outcome in the context of a subsequent review by the AAT. The statutory scheme allows for progressive and evolving decision-making giving effect to the provisions of ongoing review of relief or entitlements in the nature of course of workers compensation, being review which allows for adjustment or change in the light of events and circumstances which may subsequently happen. The statutory scheme hence reflects a flexible scope for adjustment by way of decisions in the nature of awards to be made subsequently to the determination of s 14 liability, whether that determination be made in isolation, or in the context of decision-making concerning consequential relief that may be required in the light of evolving circumstances. It is therefore a scheme which allows progressively for ongoing relief, and is thus not comparable of course with the process of curial resolution of the traditional common law entitlement of an injured employee for damages as a consequence of the negligent conduct of an employer. The opening words of s 14(1) ‘[s]ubject to this Part…’ are consistent with the flexibility inherent in the ensuing codification of the various facets of compensation envisaged. Conti J concluded at [274]:I would therefore conclude, contrary to the decision of the primary judge, that the AAT below was duly empowered, upon the true construction of the SRC Act and in the events which happened:(i) to make findings of fact that effectively undercut the necessary findings of fact made in the initial or original decision of Telstra under s 14 of the SRC Act to accept liability in respect of Mr Hannaford’s claim for compensation; and(ii) to do so in circumstances where the AAT was undertaking its review of whether any compensation should be payable or further payable, for instance under ss 16 and 19 of the SRC Act, and/or under ss 21 and 27 of the SRC Act; and(iii) to do so in the circumstances further where Telstra’s s 14 decision remained in force to the extent that it had not been actually reversed, and had not been the subject of any adverse review per se by the AAT.In short, it matters not, upon the true construction of the SRC Act, that there has never been any reconsideration of the determination of Telstra of 8 May 2002 whereby liability under s 14 thereof for Mr Hannaford’s claim originally made on 1 May 2002 had been accepted.