Sprice and Comcare (Compensation) [2021] AATA 4564 (6 December 2021)
Division:GENERAL DIVISION
File Number(s): 2018/7183; 2020/4421; 2020/4423; 2020/4489; 2020/4995; 2020/5538
Re:James Sprice
APPLICANT
AndComcare
RESPONDENT
DECISION
Tribunal:Senior Member Linda Kirk
Date:6 December 2021
Place:Sydney
The Reviewable Decisions which are the subject of the six applications for review are affirmed.
...................[SGD].....................................................
Senior Member Linda Kirk
CATCHWORDS
WORKERS COMPENSATION – permanent impairment - household expenses – pain management expenses – cease effects – psychological condition – what is an ‘injury’ – does the Applicant continue to suffer from the effects of the accepted conditions – are the accepted condition an ‘injury (other than a disease)’ – whether the Tribunal can make a decision contrary to the s 14 findings – decisions under review affirmed.
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth) s 4, 5, 5A, 14, 16, 19, 24, 27, 29
CASES
Australian Postal Corporation v Burch (1998) 156 ALR 483
Commonwealth v Snell (2019) 269 FCR 18; [2019] 57 FCAFC
Kennedy Cleaning v Petkokska (2000) 174 ALR 626
May v Military Rehabilitation and Compensation Commission (2015) 233 FCR 397
Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468
Portors v Comcare [2018] FCA 914
Re May and Military Rehabilitation and Compensation Commission [2011] AATA 886
Telstra Corporation Ltd v Hannaford [2006] FCAFC 87
SECONDARY MATERIALS
Comcare Guide to the Assessment of the Degree of Permanent Impairment, Edition 2.1
REASONS FOR DECISION
Senior Member Linda Kirk
6 December 2021
Mr James Sprice (‘the Applicant’) was born on 26 June 1969. He commenced employment as a groundsman with the Department of Defence at Holsworthy in approximately 1992.[1] His duties involved mowing lawns and general groundskeeping duties.[2] On 22 January 1998, the Applicant commenced employment with the Family Court of Australia (‘the agency’) as a Client Service Officer, APS Level 2.[3] His duties involved clerical work, assisting judicial officers, marking exhibits and data entry.[4]
[1] Exhibit EA1, [4].
[2] Transcript of proceedings, 25 May 2021, 20.
[3] Applicant’s SFIC at [4].
[4] Transcript of proceedings, 25 May 2021, 21.
Between the period 1993 and 2019 the Applicant lodged claims for compensation with Comcare (‘the Respondent’) under the Safety, Rehabilitation and Compensation Act 1988 (‘the SRC Act’) in respect of a number of work-related injuries associated with his employment with the Commonwealth.
The Applicant ceased work on 13 July 2016.[5] He was certified unfit to work due to chronic pain and was issued with an invalidity retirement certificate on 11 January 2021.[6]
[5] Exhibit EA1, [29]; Transcript of proceedings, 25 May 2021, 29.
[6] Exhibit EA2, Transcript of proceedings, 25 May 2021, 19.
There are six Reviewable Decisions corresponding to the three active claims that are the subject of the following applications for review by the Tribunal.
AAT 2018/7183 – PERMANENT IMPAIRMENT CLAIM
On 17 April 2018, the Applicant, through his solicitors, lodged three compensation claims for permanent impairment and non-economic loss[7] in relation to the Applicant’s right wrist, neck arm and left shoulder and…
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CaseChat Overview and Summary
The legal issues before the Tribunal were threefold: first, whether the applicant continued to suffer from the effects of his accepted conditions; second, if so, whether he was entitled to the various compensation claims made under sections 16, 19, 24, 27, and 29 of the *Safety, Rehabilitation and Compensation Act 1988* (Cth) (SRC Act); and third, whether Comcare was liable for the applicant's claimed psychological condition. The Tribunal also had to consider whether a finding of 'injury' under the SRC Act could be made in relation to the accepted conditions, applying principles from cases such as *May* and *Kennedy Cleaning*.
The Tribunal's reasoning focused on the definition of an 'injury (other than a disease)' under the SRC Act, which requires a physiological change or disturbance of the normal physiological state. It considered evidence regarding the applicant's accepted conditions, including medical opinions suggesting that the initial muscololigamentous strain should have resolved within weeks. Crucially, the Tribunal found that the applicant's diagnosed psychological condition was a result of non-employment factors, such as family and financial stress, and pain consequent to non-work-related incidents. Any opinion to the contrary, which linked the psychological condition to employment, was based on an assumption that the applicant's pain had an employment contribution, which the Tribunal did not accept.
The Administrative Appeals Tribunal affirmed the reviewable decisions, meaning that the applicant's claims for ongoing compensation in relation to the accepted conditions and the claimed psychological condition were not upheld.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Should the Tribunal decide there was no ‘injury’ in 2001, the only other matters to be resolved are the extent that the 2000 incident involving the Applicant’s thumb (if it was ever an ‘injury’) or the wrist fracture in 1998 (if it is found to have occurred on a journey home), continue to create impairment or incapacity almost 20 years later, such that there is any ongoing entitlement to compensation in respect of those incidents.[203] The Respondent contends there was never an ‘injury’ in 2000, again because of the absence of identifiable pathological damage. In respect of 1998, it is unlikely there was an ‘injury’ or alternatively the wrist fracture resolved in 1999, and there was no such impairment or incapacity that means that any of the decisions ought not be affirmed.[204][203] Respondent’s Outline of Closing Submissions dated 28 May 2021 at [19].[204] Respondent’s Outline of Closing Submissions dated 28 May 2021 at [19].CONSIDERATION AND REASONS The Tribunal has considered the parties’ submissions, the evidence of the witnesses at the hearing, and all the documentary material before it. The Tribunal is satisfied that the parties had an adequate opportunity to be heard by the Tribunal.1. Does the Applicant continue to suffer from the effects of any of the accepted conditions? The first issue for the Tribunal’s consideration is whether any of accepted conditions for which the Applicant claims an ongoing entitlement to compensation can be considered an ‘injury (other than a disease)’ for the purposes of the SRC Act. Whereas the parties agree that the Tribunal must identify an ‘injury (other than a disease)’, they disagree that the reasoning in May must be applied to physical injuries, mental injuries and mental ailments in precisely the same way. What is an ‘injury (other than a disease)’? In May French CJ, Kiefel, Nettle and Gordon JJ observed that whether there is an ‘injury’ in the primary sense at [52]:…will be determined by asking whether the employee has suffered something that can be described as a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state… Similarly, in Kennedy Cleaning v Petkokska (2000) 174 ALR 626 , Gleeson CJ and Kirby J stated that ‘… a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state … may qualify for characterisation as an ‘injury’…’ at [39]. In Australian Postal Corporation v Burch (1998) 156 ALR 483 the Full Court of the Federal Court found a stroke to be an injury because, in the circumstances, it was ‘…a disturbance of the normal physiological state … or an ascertainable lesion or dramatic physiological change’ at 488. French CJ, Kiefel, Nettle and Gordon JJ in May emphasised that ‘suddenness’ will not always be necessary for there to be an ‘injury (other than a disease)’. Their Honours stated that suddenness may nevertheless be ‘useful where there is a need to distinguish a physiological change from the natural progress of an underlying (and in one sense, closely related) disease’ at [47]. Their Honours cited the following passage from May v Military Rehabilitation and Compensation Commission (2015) 233 FCR 397 with approval:The Full Court concluded that the inquiry demanded by the statutory definition of “injury” was, instead, “whether the person has experienced a physiological change or disturbance of the normal physiological state (physical or mental) that can be said to be an alteration from the functioning of a healthy body or mind.[205][205] May at [57] citing (2015) 233 FCR 397 at 444 [205]-[207].