Smythe and Comcare (Compensation) - [2017] AATA 2413

Smythe and Comcare (Compensation) [2017] AATA 2413 (30 November 2017)
Division:GENERAL DIVISION
File Number: 2015/5828
Re:Mark Smythe
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Deputy President Dr Christopher Kendall
Date:30 November 2017
Place:Perth

The reviewable decision is set aside. In substitution, it is determined that liability continues for incapacity payments and medical treatment as a result of the accepted injury.
.......[sgd]..............................................................
Deputy President Dr Christopher Kendall
CATCHWORDS
COMPENSATION – Commonwealth employee – injury sustained to shoulder – whether applicant continues to suffer from the effects of of compensable injury - decision under review set aside
LEGISLATION
Administrative Appeals Tribunal Act 1975 – s 34B
Safety, Rehabilitation and Compensation Act 1988 – s 4(1), s 4(9), s 14, s 16, s 19
CASES
Ilsley v Wattyl Australia Pty Ltd (1997) 144 ALR 510
Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452
McAuliffe v Comcare [2002] FCA 769
REASONS FOR DECISION
Deputy President Dr Christopher Kendall
30 November 2017
BACKGROUND

This matter was originally heard by a Tribunal member on 20 and 21 June 2017. At the conclusion of a two day hearing the presiding member reserved her decision. Regrettably, the presiding member had not delivered a decision when she retired from the Tribunal. The Tribunal was subsequently, by direction, reconstituted to comprise Deputy President Kendall. At the request of the parties, it was determined that the matter would not be re-heard de novo by Deputy President Kendall but that, instead, the matter would, pursuant to s 34B of the Administrative Appeals Tribunal Act 1975, be decided by Deputy President Kendall “on the papers” (including the transcript of the previous hearing before the Tribunal as originally constituted). Subsequently, at the request of the parties, a resumed hearing was held for the purpose of receiving further closing submissions from the parties. That half day hearing occurred on 5 October 2017.
The Applicant in these proceedings, Mr Mark Smythe, seeks review by this Tribunal of a reviewable decision of the Respondent, Comcare, dated 22 October 2015 (T47) which affirmed a determination dated 17 August 2015 (T42). By that determination it was determined that Mr Smythe is not entitled to compensation for medical treatment and incapacity payments in relation to a previously accepted “sprain of shoulder and upper arm (bilateral)” (the “accepted I njury”) – date of the injury being 7 December 1998 – under sections 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988 (the “SRC Act”).
Mr Smythe is 71 years of age. He was previously employed by Australian Air Express as a cargo porter. In 1998, he was injured while moving a 400kg copper coil into position on a cargo container. In a written statement dated 7 April 2017 (Exhibit 3), Mr Smythe described the accident as follows:
11.I was pushing and moving the coil with my arms and using my leg and foot to help me.
12. After moving the coil I realised that there was pain in both of my…

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 Smythe and Comcare (Compensation)

Details

AGLC: Smythe and Comcare (Compensation) [2017] AATA 2413
Case: [2017] AATA 2413
Decision Date: 30 November 2017

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of Mr Mark Smythe and Comcare concerning a claim for compensation. Mr Smythe had sustained a physical injury to his shoulder in late 1998 during his employment, which was accepted by Comcare as resulting in incapacity in early 1999. The central dispute before the Tribunal was whether Mr Smythe's current incapacity and need for medical treatment continued to stem from this accepted work injury, or if other factors, such as age-related degeneration, were now the primary cause.

The Tribunal was required to determine whether Mr Smythe's ongoing incapacity and need for medical treatment were causally linked to the accepted compensable injury sustained in 1998. This involved assessing the evidence presented, including extensive documentary material and oral testimony from Mr Smythe, his wife, and several medical specialists, to ascertain the current source of his symptoms and functional limitations. Comcare contended that age-related degeneration was now the cause of Mr Smythe's incapacity, a position the Tribunal needed to evaluate against the evidence of the original injury and its subsequent effects.

Deputy President Kendall, in his reasoning, found that Mr Smythe's current incapacity did indeed result from the accepted injury. The Tribunal reviewed medical reports and oral evidence which indicated a persistent and significant impact of the 1998 injury on Mr Smythe's shoulder, neck, and arms, leading to ongoing pain, reduced range of motion, and functional limitations. The Tribunal rejected Comcare's submission that age-related degeneration was the sole or primary cause of Mr Smythe's current condition, concluding that the accepted injury remained the operative cause of his ongoing incapacity and need for medical treatment.

Consequently, the Tribunal set aside the decision under review. In its place, the Tribunal determined that Comcare's liability continued for incapacity payments and medical treatment pursuant to sections 16 and 19 of the *Safety, Rehabilitation and Compensation Act 1988* (Cth), as Mr Smythe's incapacity was found to be a result of the accepted injury.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

On the evidence, as discussed further below, the Tribunal finds that Mr Smythe sustained a physical injury (other than a disease) in late 1998 that arose in the course of his previous employment. That injury resulted in incapacity and this was accepted by Comcare as a given in early 1999. The issue before the Tribunal is whether Mr Smythe’s current incapacity results from that work injury or whether something else is now causing his incapacity. EVIDENCE As noted above, this matter was heard over three days in Perth on 20 and 21 June 2017 by a previous Tribunal member and then on 5 October 2017 by Deputy President Kendall, whose reasons for decision appear here. Mr Smythe was represented by Mr Bruns of counsel. The Respondent was represented by Mr Black of counsel. The documentary evidence before the Tribunal consisted of:·Original Determination made under SRC Act, dated 15 January 1999 (Exhibit 1);·A 191 page set of T-Documents (T1-T50) (Exhibit 2);·Witness Statement of Mark Thomas Smythe dated 7 April 2017 (Exhibit 3);·A 340 page bundle of summons material (Exhibit 4); ·Medical Report of Mr Barrie Slinger dated 28 November 2016 (Exhibit 5);·Medical Report of Dr Angelika Elsmann dated 19 May 2017 (Exhibit 6);·Medical Report of Mr Ian Kelman dated 15 December 2016(Exhibit 7);·Supplementary Medical Report of Mr Iain Kelman dated 20 March 2017 (Exhibit 8);·Supplementary Medical Report of Mr Iain Kelman dated 19 June 2017 (Exhibit 9); ·Medical Report of Dr Steven Overmeire dated 11 November 2015 (Exhibit 10). The Tribunal also heard oral evidence from:·Mr Smythe; ·Ms Zupins (Mr Smythe’s wife);·Mr Barry Slinger, Orthopaedic Surgeon;·Mr Peter Honey, Orthopaedic Surgeon;·Dr Angelika Elsmann, General Practitioner;·Mr Iain Kelman, Orthopaedic Surgeon; and·Mr Steven Overmeire, Specialist Occupational Physician. The Tribunal has reviewed all of the evidence before it and notes relevantly as follows.Mr Smythe’s Witness Statement dated 7 April 2017 (Exhibit 3) In addition to the evidence provided above at paragraph 3, Mr Smythe provided the following statement to the Tribunal:After the Accident20.I was referred to a gym exercise programme – which made things worse.21.Then I tried physiotherapy for a little while, but it didn't really help my symptoms, and there were times when it was incredibly painful.22.I was referred to Mr Goonatillake and Mr Honey for treatment.23.Mr Goonatillake gave me a steroid injection to my left shoulder shortly after the injury, and then Mr Honey arranged for a further injection – and I think that happened within 12 months of the first injection.24.Mr Honey said that if things didn't get better then I would need left shoulder surgery.25.Comcare didn't approve funding for the surgery, and things just continued as they were for a long time.26.I couldn't afford to pay for the surgery on my own.27.I just put up with the pain, and tried my best to get through the days.28.In 2015 Mr Honey repeated his recommendation for surgery because my symptoms hadn't changed.29.I had another steroid injection, this time to my right shoulder in June 2016.30.There was some relief from the pain after this injection for about 4 months, and the wearing off is gradual.31.Also in 2016, I had some injections to my C5/6 facet joint and they gave me some improvement in the pain for up to 4 months.32.These were organised by Dr Michael Murphy, of St Andrews Medical Centre.33.The effect of those injections has already started wearing off.34.The injections help with the pain, not with my range of motion.Return to work programmes35.I have tried to do some return to work programs, but my symptoms have become too intense to work.36.In April 2002, I did a return to work program at Auto One in Balcatta as a spare parts sale assistant.37.I couldn't lift the car batteries, or containers of oil, or jacks, or car stands.38.I mostly stood around, swept the floors, and dusted shelves.39.I sometimes did stock counting out the back.40.Despite these limited duties, I still had trouble with the 5 hours a day, 5 days a week.41.I was enthusiastic about this role because I wanted my life to have purpose again.42.I was in constant pain, and my symptoms increased during the return to work program.43.I managed to stay on the return to work program until July 2002, as APM had put me under pressure to continue the programme.44.As a result of that programme, Comcare said that I could work 5 hours per day 5 days per week – and they adjusted my payments accordingly.45.I also tried some work in 2002 quoting for the installation of fences and gates.46.The quoting was mostly fine – but the problem was that I was asked to help with alternative duties like the installations and I couldn't do that.47.I think that I lasted about 4 months doing the quoting before I was let go because I couldn't do the more physical work.48.I did have some difficulty with travelling to places to quote because of the discomfort I experienced while driving .49.I had some problems with the quotes because I have dyslexia.50.My hearing is not very good.51.I tried further work in 2005 as a traffic controller, and I kept up with that work for a few months.52.The work was not very constant because I was a relief work [sic], and some weeks I would do 2 days, other weeks 4 days, and some weeks 3 days.53.I think that an average shift for me could be up to about 4 hours – but if the job was only small, like patching a pothole then I would only work for 2 hours.54.I ended up having too much difficulty holding and carrying the signs and frames, and I was required to stack them on trucks, which I couldn't manage.55.I arranged both the work with the fences and gates, and the traffic control work myself – without assistance from a rehabilitation provider or Comcare.56.I have not received any assistance from a rehabilitation provider since February 2003.57.My recollection is that is the rehabilitation provider closed their file.58.I have not been able to return to work since that traffic controller job in 2005 because of my symptoms.59.I can recall some other attempts to find work, and some other training but these didn't work out, and I can't remember all the details.60.I knew from my discussions with the rehabilitation provider and my own searches that work that accommodated my restrictions was difficult to find.Current Treatment61.I last saw my general practitioner in January 2017, Dr Michael Murphy, and I mostly see him to get prescriptions for medication.62.I currently take a combination paracetamol codeine tablet, an antidepressant called Citalopram, and valium as required.63.I take ibuprofen daily, and I use Voltaren gel twice a day, and if the pain is bad then three times a day.64.I also take Voltaren liquid capsules every 4-6 hours as necessary.65.The pain I experience is a constant ache from shoulder tip to shoulder tip in a direct line across my back, with neck pain and stiffness.66.There is an aching pain down my arms, and there has been constant pain in my elbows.67.The pain in my elbows is worse on my left side, and I have difficulty with holding and gripping things.68.When I had the facet joint injection I had some relief from the elbow problems – which made me realise that those problems were related to the rest of my symptoms.69.With activity and movement, the pain can become sharp, and feels like a hot stabbing pain in my neck and shoulders.70.I experience numbness and tingling in my palms and fingers, and with activity there is sometimes a total loss of sensation in my hands .71.I am restricted in my range of motion – I can't lift my arms above my head.72.I have trouble holding anything heavy, such as heavy bags of shopping, or a carton of beer.73.I sometimes have tingling and numbness in my ring and little fingers, and this has been a problem since the accident in 1998.74.Treatment for my shoulders has been recommended by Mr Honey and he says that surgery would involve:(a)an arthroscopic assessment;(b)acromioplasty;(c)AC joint resection; and(d)biceps tenodesis.75.I hope that the surgery improves my symptoms because I have been trying to put up with these symptoms for too long.76.Mr Slinger has said that I will need an exercise program for stretching and strengthening after the surgery.77.At this stage I don't know what else I will need after the surgeries to help me get back on track.Lifestyle78.Before the injury, I used to go fishing, camping, and prospecting.79.I can no longer do anything around the house.80.I was a sheet metal technician working to 12-micron tolerance with a class 4E welding ticket, and I have lost my trade now, and I have lost my purpose.81.I was progressing in that trade when my contract at the University of Western Australia finished, and I got the cargo porter job as a stopgap to get some money while I found the next job as a sheet metal technician.82.I was always looking for the next job as a sheet metal technician because it offered better job security, and better money.83.Getting injured while working as a cargo porter stopped me from ever being able to work as a sheet metal technician again.84.There were a range of different jobs available to me earlier in my life, that because of my injury I now have no chance at doing.85.I also have a truck driving licence, which is now useless because of my injury.86.I can't even climb a ladder to clean my own gutters.87.It has been a huge burden on my wife88.I have two children – my son is 29 and my daughter is 25.89.My daughter lives at home and helps at home, which is essential for us.90.I used to be able to fix their cars and help them do things, and now they have to help me.91.I have trouble helping out at home now.92.I don't really go out anymore, and I spend almost all of my time at home.93.I almost constantly feel angry, bitter and frustrated, and I can be very short tempered.94.I have a friend who sometimes comes to visit, and I go to visit my father.95.I started taking the antidepressants a short time after the accident, and the medication has been off and on since.96.When I don't take the antidepressant medication, I am right down in the dumps, and I am often angry.97.I am sometimes concerned about the amount of medication that I take to get by.98.I have a lot of trouble sleeping, and sometimes I go to bed at different times, and I can be asleep for an hour or two.99.I have had issues with sleeping positions and my max sleep time is 2 hours at a time.100.This is now something that is part of my sleeping pattern, and it's now normal for me.101.I have set up a TV on the back patio so that my unusual hours don't disrupt my family too much, though the impact on them has been significant.102.I require help with showering and personal care, and I have required that for many years now.103.It seems like there is no respite from that.104.I was treated poorly at work because of my workers' compensation claim, and it was difficult to deal with the stigma of being 'on campo'.105.My complaints to management regarding this harassment were ignored.106.I feel like I have lost everything as a result of this accident.107.I know that there are doctors who recommended surgery all those years ago, and it is incredibly frustrating to know that I might have been better before this.108.It has been hard to consolidate the various recommendations from the doctors.109.I was earning about $65,000 a year before the injury, and I think I could get about $1,300 a week or more with overtime.110.I think that I could be earning easily double that now, particularly if I took a FIFO position.111.It is hard to think about the life that I have missed out on as a result of this injury.Medical Evidence and Comcare determinationsMedical report of Dr Goonatillake dated 7 January 1999 (Exhibit 4 at 37)

Decision

Reasons for decision

The Tribunal finds that Mr Smythe remains incapacitated as a result of the accepted injury and in need of ongoing medical treatment. The Tribunal rejects Comcare’s contention that age related degeneration is now the source of Mr Smythe’s incapacity. DECISION For the reasons outlined above, the decision under review is set aside. In substitution, it is determined that liability continues for incapacity payments and medical treatment as a result of the accepted injury pursuant to section 16 and 19 of the SRC Act.

Ratio Decidendi

Legal Principle Established

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