Smith and Comcare (Compensation) - [2019] AATA 927

Smith and Comcare (Compensation) [2019] AATA 927 (20 May 2019)
Division:GENERAL DIVISION
File Number: 2017/6154
Re:Julieann SMITH
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Member M East
Date:20 May 2019
Place:Perth

The decision under review is affirmed.
.................................[sgd].......................................
Member M East
CATCHWORDS
WORKERS’ COMPENSATION – Commonwealth employee – physical injury – liability accepted – reconsideration of own motion – whether treatment related to compensable injury – decision under review affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth) – ss 4(a), 4(1)(a), 5A(1), 14(1), 16, 16(1), 24, 54, 60, 62(1), 64(1)(a), 71
CASES
Lees v Comcare (1999) 56 ALD 84
Stitt v Comcare [2018] AATA 3092
REASONS FOR DECISION
Member M East
20 May 2019
HISTORY OF CLAIM

The Applicant was employed by the Australian Tax Office (ATO) from 5 May 2000 until

31 July 2014 when she agreed to accept a bonafide voluntary redundancy (Exhibit R1, p.3).
The Applicant was subsequently employed by the Australian Bureau of Statistics from March 2015 until July 2015, and was later employed in a call centre for a windscreen company from December 2016 until July 2017 (Transcript, p.10). From October 2015 until July 2016, the Applicant was incarcerated in Boronia Correctional Facility (Transcript, p.11).
On 24 September 2001, the Respondent made a determination accepting liability in accordance with s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth)
(the SRC Act) for ‘lateral epicondylitis (right)’, with a listed injury date of 19 July 2001

(T7, p.33).
On 17 June 2003, the Respondent made a determination accepting liability in accordance with s 14 of the SRC Act for the Applicant’s ‘FCR tenosynovitis and ganglion’, as secondary conditions of the Applicant’s previously accepted condition of lateral epicondylitis (right) (T107, p.280).
On 20 June 2006, the Respondent made a determination accepting liability in accordance with s 14 of the SRC Act for a secondary condition, ‘lateral epicondylitis, left’ (T66, p.125).
On 2 August 2011, the Respondent made a determination accepting liability in accordance with s 14 of the SRC Act for the Applicant’s ‘de Quervain’s tenosynovitis’ (T76, p.152). It was determined that the Applicant was entitled to receive a payment under s 24 of the SRC Act for the total permanent impairment of 10% which she suffered as a result of this condition (T77, p.154-155).
On 14 October 2016, the Respondent made a determination accepting liability in accordance with s 16 of the SRC Act for the payment of the Applicant’s consultation with a hand specialist (T2, p.10).
On 15 December 2016, the Respondent made a determination accepting liability in accordance with s 16 of the SRC Act entitling the Applicant to undergo various procedures recommended by Mr Keogh, Orthopaedic Upper Limb Surgeon. The procedures approved consisted of an X-ray of the right hand, EMG studies of the right arm/median nerve, right thumb ultrasound with steroid injection, and an MRI of the neck (T2, p.12).
On 13 July 2017, the Respondent made a determination accepting liability under s 16…

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 Smith and Comcare (Compensation)

Details

AGLC: Smith and Comcare (Compensation) [2019] AATA 927
Case: [2019] AATA 927
Decision Date: 20 May 2019

CaseChat Overview and Summary

This matter concerned an application for review before the Administrative Appeals Tribunal, brought by an employee (the Applicant) against Comcare (the Respondent). The dispute centred on whether surgery for an A1 pulley condition in the Applicant's right thumb was undertaken in relation to accepted compensable conditions under the *Safety, Rehabilitation and Compensation Act 1988* (Cth) (SRC Act). Comcare had initially accepted liability for several conditions, including lateral epicondylitis and de Quervain's tenosynovitis, but later revoked its determination regarding the A1 pulley surgery, deeming it not payable under section 16 of the SRC Act.

The Tribunal was required to determine whether the A1 pulley surgery obtained for the Applicant's A1 pulley condition was undertaken in relation to the accepted compensable conditions. This involved assessing the causal link between the surgery and the injuries for which Comcare had already accepted liability, considering the medical evidence presented by both parties. The Tribunal also had to interpret the provisions of the SRC Act concerning the definition of "medical treatment" and "injury" in the context of the Applicant's claims.

The Tribunal considered medical reports and evidence, including that of Mr Angus Keogh and Dr Hanrahan, which detailed the Applicant's various conditions, including lateral epicondylitis, de Quervain's tenosynovitis, and the A1 pulley condition. The medical evidence indicated that the A1 pulley condition involved thickening of the flexor tendon sheath in the right thumb, particularly around the A1 pulley. The Tribunal noted that the Applicant had a history of workers' compensation claims relating to her right wrist and had previously undergone surgery. The core of the Tribunal's reasoning focused on establishing whether the A1 pulley condition was a consequence of, or otherwise related to, the accepted conditions such as de Quervain's tenosynovitis, which affects the tendons in the wrist and thumb.

The Tribunal affirmed Comcare's decision that compensation was not payable for the A1 pulley surgery. It found that the medical evidence did not establish a sufficient nexus between the A1 pulley condition and the accepted compensable injuries. Therefore, the surgery for the A1 pulley condition was not considered to be medical treatment obtained in relation to an accepted injury under section 16 of the SRC Act.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The issue for the Tribunal is therefore confined to whether or not the A1 pulley surgery obtained for the A1 pulley condition was obtained in relation to the accepted conditions.Medical Evidence As noted above, the Applicant has several compensable conditions which have been accepted by the Respondent. These are:·Lateral epicondylitis (right), date of injury 19 July 2001 (T7, p.33)·FCR tenosynovitis and ganglion, as secondary conditions to the condition of lateral epicondylitis (right), date of injury 17 June 2003 (T107, p.280)·Lateral epicondylitis (left), date of injury 20 June 2006 (T66, p.125)·de Quervain’s tenosynovitis (right), date of injury 2 August 2011 (T76, p.152). The Applicant also made a claim for medical costs associated with right and left shoulder symptoms in 2009 and 2010. The Respondent denied liability for these claims on the basis that there was no relationship established between the lateral epicondylitis (left and right) and the condition involving her right shoulder (T69, p.131). The Applicant was referred by her general practitioner to Mr Angus Keogh. Mr Keogh provided a report dated 1 November 2016 (T84, p.173). He describes her symptoms as:She has six to nine months [sic] worth of symptoms in her right hand with basal thumb discomfort associated with altered sensation into the median nerve territory of her right hand. She has also noticed some catching symptoms in her thumb, particularly flexion extension range but also palmar abductor range can trigger her symptoms. I note her signatory of background history of a long standing workers [sic] compensation claim relating to her right wrist. She had previous surgery under Allan Wang’s care.Clinically today she exhibits symmetrical range of movement in her wrist. There is some tenderness about the wrist generally to palpation. More specific enquiries with regard to the affected regions today exhibit positive grind test with discomfort in the mid carpal joint of the thumbs. Also some discomfort through the STT joint itself. She has a painful nodule at the A1 pulley level of the thumb with no over triggering today. Peripheral nerve examination reveals altered sensation in the median nerve territory including the ring through the thumb but sparing of the middle finger. There is altered sensation in the C6 distribution of the forearm. Elbow flexion and extension is strong as is wrist extension today. She has negative tinel’s at the level of the wrist and also at the level of the elbow. She has good power of the thenar’s and also the intrinsics for the hand.DIAGNOSIS·Right thumb trapeziometacarapal arthritis plus or minus STT arthritis.·Barely triggering right thumb A1 pulley.·Probable carpal tunnel syndrome although atypical clinical features. Mr Keogh organised for the Applicant to undergo nerve conduction studies, the results of which returned normal. Mr Keogh further referred the Applicant for an X-ray and ultrasound of the right hand. The findings were (T87, p.177):X-RAY RIGHT HANDFindings: No bone, joint or soft tissue abnormality is identified. There is no evidence of an erosive arthropathy. There is no soft tissue calcification. ULTRASOUND RIGHT HANDFindings: There is thickening of the flexor tendon sheath of the right thumb and this is most marked in the region of the A1 pulley at the level of the 1st metacarpophalangeal joint. The other flexor tendons are intact. No other abnormality is identified. There is no evidence of an arthropathy.Comment: Flexor tenosynovitis with tendon sheath thickening, most marked in the region of the A1 pulley.

Decision

Reasons for decision

On 13 September 2017, the Respondent undertook a reconsideration of its own motion, and revoked its determination dated 13 July 2017 (T2, p.16-17, see also T101, p.203). The Respondent found that compensation was not payable to the Applicant for the A1 pulley surgery under s 16 of the SRC Act (T2, p.16-17, see also T101, p.203)(the reviewable decision). On 10 October 2017, the Respondent advised the Applicant that an overpayment had occurred by reason of liability being revoked for the A1 pulley surgery, and advised that the Applicant is obliged to pay back the overpaid amount to the Respondent. A write-off of the overpayment has been made pending the outcome of these proceedings (T104, p.208-209). On 17 October 2017, the Applicant filed an Application for a Review of Decision with the Administrative Appeals Tribunal (the Tribunal) for a review of the reviewable decision (T2, p.5-9).THE HEARING The application was heard by the Tribunal on 13 February 2019. The Applicant represented herself and the Respondent was represented by Mr Hawker and Ms Jones-Bolla of Sparke Helmore Lawyers (Transcript, p.1). At the hearing the Tribunal heard from the following witnesses:·The Applicant; and·Dr Hanrahan, Consultant Physician, Rheumatologist. At the hearing, the Tribunal admitted into evidence the following documents:·The Applicant’s Submission in reply to the Respondent’s Statement of Issues, Facts and Contentions (Exhibit A1);·The Applicant’s ‘Statement of Service’ dated 8 February 2019 together with a Notice under s 71 of the SRC Act sent by the Respondent dated 30 January 2019 (Exhibit R1);·Report of Dr Hanrahan dated 25 January 2018 (Exhibit R2);·Section 37 T-Documents (Exhibit R3);·Referral letter to Dr Hanrahan dated 18 January 2018 (Exhibit R4);·Two diagrams provided by Dr Hanrahan demonstrating the mechanism of de Quervain’s disease and the A1 pulley condition (Exhibit R5).THE LEGISLATION Section 16(1) of the SRC Act relevantly provides:Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment. The definition of ‘medical treatment’ is provided for by s 4 the SRC Act. Relevantly, s 4(a) of the SRC Act defines ‘medical treatment’ as including ‘medical or surgical treatment by, or under the supervision of, a legally qualified medical practitioner’. ‘Injury’ is defined in s 5A(1) of the SRC Act to mean:(a)a disease suffered by an employee; or(b)an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.

Ratio Decidendi

Legal Principle Established

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