Solman and Comcare (Compensation) - [2018] AATA 6

Solman and Comcare (Compensation) [2018] AATA 6 (9 January 2018)
Division: GENERAL DIVISION
File Number(s): 2016/2636; 2016/3431
Re:Julie Solman
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Deputy President Gary Humphries
Date:9 January 2018
Place:Canberra

The reviewable decisions of 12 April 2016 and 21 June 2016 are affirmed.
........................................................................
Deputy President Gary Humphries
Catchwords
COMPENSATION – no jurisdiction in absence of determination of liability under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) – determining mechanisms by which liability is established – ambit of accepted condition in absence of fresh s 14 determination cannot be broadened – lack of jurisdiction cannot be remedied by procedural step – no jurisdiction to consider a claim for incapacity or impairment arising from cervical spondylosis or arthritis – ailment a different condition to injury accepted in September 2004 – injury, not impairment, that unlocks compensation – fusion surgery on neck – injury to neck – decisions affirmed.
Legislation
Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 4, 5A, 14, 16, 19, 24, 27 and Part VI
Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007 (Cth)
Cases
Abrahams v Comcare [2006] FCA 1829
Canute v Comcare 226 CLR 535
Comcare v Muir [2016] FCA 346
Lees v Comcare (1999) 56 ALD 84
Portors and Comcare [2017] AATA 2166
Telstra Corporation Ltd v Hannaford (2006) 151 FCR 253.
REASONS FOR DECISION
Deputy President Gary Humphries
9 January 2018
INTRODUCTION

Ms Julie Solman, the Applicant in these proceedings, was an employee of the Department of Defence (the Department) when she had an accident in Melbourne on 30 June 2004. She slipped while trying to enter a car in the rain, hit her head and sustained an injury to her neck. As this occurred in the course of her employment, she made a claim for workers compensation a few weeks later, and on 15 September 2004 Comcare, the Respondent here, accepted liability for a neck sprain.
In (it seems) early 2013 Ms Solman made a claim under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (the Act) for cervical spondylosis without myelopathy. On 23 July 2013, however, Comcare rejected that claim, its delegate reasoning as follows:
I am not satisfied that your claimed condition has been caused by new set of circumstances. The medical evidence clearly indicates that your condition is a worsening of symptoms of your already accepted condition [i.e. neck sprain]…
In January 2014 Ms Solman underwent fusion surgery on her neck. Comcare accepted liability under s 16 of the Act for the cost of that surgery in a determination dated 3 December 2013. On 22 December 2015 she lodged a claim for permanent impairment and non-economic loss, pursuant to ss 24 and 27, in relation to her accepted neck condition. On 2 March 2016 Comcare denied liability for this claim, and Ms Solman sought reconsideration of that decision. However on 12 April 2016 Comcare affirmed its determination denying liability, and…

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 Solman and Comcare (Compensation)

Details

AGLC: Solman and Comcare (Compensation) [2018] AATA 6
Case: [2018] AATA 6
Decision Date: 9 January 2018

CaseChat Overview and Summary

This matter concerned an appeal by Ms Solman against decisions by Comcare to cease liability for her neck sprain condition and to deny further compensation for permanent impairment and non-economic loss. Comcare had initially accepted liability for a neck sprain injury sustained by Ms Solman in June 2004. However, Comcare later determined that the effects of this injury had ceased by July 2005 and that Ms Solman's current condition, which led to her claims for ongoing medical expenses, incapacity payments, permanent impairment, and non-economic loss, was a different condition to the accepted neck sprain. The appeal was heard by Deputy President Gary Humphries.

The primary legal issues before the Tribunal were whether it had jurisdiction to consider Ms Solman's claims for compensation relating to her current condition, and whether that condition constituted a permanent impairment arising from the accepted 2004 injury. Ms Solman argued that her current symptoms were either a continuation or aggravation of the accepted neck sprain, or alternatively, an injury arising from medical treatment for that injury. Comcare contended that the current ailment was distinct from the accepted neck sprain and that, in the absence of a fresh determination of liability under section 14 of the *Safety, Rehabilitation and Compensation Act 1988* (Cth) for this new condition, the Tribunal lacked jurisdiction to consider claims related to it.

The Tribunal reasoned that the *Safety, Rehabilitation and Compensation Act 1988* establishes a specific mechanism for determining liability for injuries, and that the Tribunal's jurisdiction is confined to reviewing decisions made under that framework. It found that Ms Solman's current condition, which necessitated spinal fusion surgery in 2014, was a different condition to the neck sprain accepted in 2004. Consequently, the Tribunal held that it had no jurisdiction to consider claims arising from this new condition without a prior section 14 determination of liability. Furthermore, the Tribunal was not persuaded that Ms Solman's accepted neck sprain condition had led to any permanent impairment, noting that compensation is unlocked by the injury itself, not the resulting impairment.

Accordingly, the Tribunal affirmed Comcare's decisions denying liability for permanent impairment and non-economic loss under sections 24 and 27, and denying ongoing liability for the neck sprain condition under sections 16 and 19. The Tribunal concluded that the treatment expenses and incapacity for work Ms Solman faced were the result of a condition distinct from her accepted work-related 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 19 April 2016 Comcare issued a determination ceasing liability under ss 16 and 19 for Ms Solman’s neck sprain condition. She sought reconsideration the following month, and on 21 June 2016 Comcare made a reviewable decision affirming that there should be no further liability for the neck condition. Ms Solman lodged an application for merits review of that decision in the Tribunal on 5 July 2016 (matter 2016/3431).EVIDENCE OF MR AND MS SOLMAN Ms Solman gave evidence that she had been involved in two previous motor vehicle accidents prior to her accident in June 2004. As a teenager she had rolled her car after swerving to avoid a dog in 1982. Following that incident she was hospitalised after suffering what she called damage to a corner edge of the vertebra. She had to wear a soft collar for a period. She had a further accident in 1994, when she and her children were taken to hospital as a precautionary measure, and a CT scan was taken of her cervical spine. She commenced work at the Department in 2001, initially as a logistics manager and later continued as a project manager. She retired from the Department in April 2016 on invalidity grounds. She was in Melbourne in relation to her employment in June 2004 when she had an accident while attempting to enter a car with work colleagues. She slipped in the rain and hit the right side of her head on the door frame. She told the Tribunal she had a stinker of a headache soon afterwards, and saw her GP within a few days. Physiotherapy was recommended. She told the Tribunal that, in the period after the 2004 accident, she experienced pain in varying degrees; always in her neck and sometimes in her shoulders as well. She dealt with that pain generally by taking painkillers, but also undertook Bowen therapy on occasions. She described her pain as intermittent. She was referred by her GP to a neurosurgeon, Dr Chandran. She continued to experience symptoms after May 2005: stiffness in her neck, pain and headache. Physiotherapy was not overly beneficial. She also attended a chiropractor. She told the Tribunal that she managed to live with her pain; she got on with life. Her evidence was that her pain intensified in 2012, and by about September that year it became intolerable. She was prescribed cortisone injections, but they were only partially successful. She was operated upon by neurosurgeon Dr Michael Ow-Yang, who undertook a C5/C6/C7 fusion in January 2014. She said that her pain was much relieved by this operation, but was not erased entirely. She described it as a 50 per cent improvement. She still experiences headaches, and her neck still aches. Under cross-examination, she also mentioned a fall she experienced while on board HMAS Kanimbla in the course of her employment on 29 March 2006. She was also cross examined on the question of her experience of pain between mid-2005 and 2012. She denied that the symptoms in her neck and shoulder went away between 2005 and 2012. When it was put to her that doctors from 2012 onwards noted her condition as having been of recent origin, she responded this episode [neck and shoulder pain in 2012] was the beginning of something I didn’t identify as being related [to the 2004 incident] at the time. She said she had made no claims against Comcare for her chiropractic and Bowen therapy between 2005 and 2012 because: …it’s not in my nature to do that… To my way of thinking Bowen therapy and chiropractic was something for me to improve my quality of life at the time because I had already psychologically accepted that I had neck pain…

Decision

Reasons for decision

It is more difficult to speculate on what the Tribunal would find on a claim pursuant to s 4(3) for an injury arising from medical treatment. This is because this issue was not raised prior to the hearing and not fully ventilated in that setting.CONCLUSION The Tribunal has found that the condition Ms Solman presently suffers from – being the condition she suffered from on 22 December 2015, the date of her claim under ss 24 and 27 – is a different condition to her already-accepted neck sprain condition. Ms Solman is entitled to compensation under those sections for an injury [which] results in a permanent impairment. It is the injury which unlocks the compensation, not the impairment: Canute v Comcare 226 CLR 535 (at [10]). The Tribunal is not persuaded that her neck sprain condition has led to any permanent impairment. Accordingly, the Tribunal must affirm Comcare’s decision of 12 April 2016 denying liability for permanent impairment and non-economic loss under ss 24 and 27 (matter 2016/2636). Similarly, the Tribunal concludes that Comcare has no present liability under ss 16 and 19 for Ms Solman’s neck sprain condition. The treatment expenses and incapacity to work which she now faces are the result of a different condition. It follows that the reviewable decision of 21 June 2016, denying liability under those sections, must be affirmed (matter 2016/3431).

Ratio Decidendi

Legal Principle Established

Section 24 deals with compensation for injuries resulting in permanent impairment. Relevantly, it provides:(1) Where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury. Section 27, dealing with compensation for non-economic loss, is expressed to operate where compensation is payable in respect of the injury under section 24.CONSIDERATION Does the Tribunal have jurisdiction to consider Ms Solman’s claims? On 15 September 2004 Comcare accepted liability for a work-related injury sustained by Ms Solman. The injury in question was neck sprain. Ms Solman contends that she continues to suffer the effects of her work-related neck sprain condition. She argues that she is therefore entitled to compensation pursuant to ss 16 and 19 of the Act. She further maintains that her condition has resulted in a permanent impairment and non-economic loss, with the consequence that she is entitled to compensation under ss 24 and 27. Conversely, Comcare contends that the neck sprain condition injury affected her only temporarily after the accident of 30 June 2004, and its effects ceased about a year later, at the latest. It put to the Tribunal that the condition giving rise to the asserted need for medical treatment, incapacity payments and compensation for permanent impairment and non-economic loss is a different condition to the one Comcare accepted liability for in September 2004. Despite determinations accepting liability for medical expenses and incapacity in the period from 2012 to 2015, Comcare contends that it is now entitled to make new findings of fact, to the effect that that Ms Solman ceased suffering from the effects of her 2004 injury on or around 13 July 2005: Telstra Corporation Ltd v Hannaford (2006) 151 FCR 253. In the course of the Tribunal hearing, counsel for Ms Solman advanced the argument that the Tribunal could consider that her present entitlement to compensation under the Act arises from an injury resulting from the spinal fusion surgery in January 2014. Counsel characterised this either as an aggravation of the Applicant’s cervical spondylosis or as an entitlement arising pursuant to s 4(3), dealing with injury resulting from medical treatment of an injury. In submissions made subsequent to the end of the hearing, Ms Solman sought the opportunity to lead further evidence in this regard; the Tribunal refused this request. If the condition from which Ms Solman is presently suffering, and which is generating the need for medical treatment, incapacity payments and so on, is indeed a different condition to neck sprain, the Tribunal has no jurisdiction to determine any claims in relation to that new condition in the absence of a determination of liability under s 14. This is because the Act provides a mechanism (set out in Part VI of the Act) by which liability is established, and a condition which has not passed through the process of consideration so provided for cannot be the basis for review by the Tribunal.