Sprice and Comcare (Compensation) - [2021] AATA 4564

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…

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 Sprice and Comcare (Compensation)

Details

AGLC: Sprice and Comcare (Compensation) [2021] AATA 4564
Case: [2021] AATA 4564
Decision Date: 6 December 2021

CaseChat Overview and Summary

This matter concerned an application for review before the Administrative Appeals Tribunal (AAT) by an applicant against decisions made by Comcare. The dispute centred on whether the applicant continued to suffer from the effects of accepted work-related conditions, specifically a neck sprain, shoulder and upper arm sprain, lumbosacral strain, wrist sprain, and chronic pain syndrome. The applicant also sought compensation for a claimed psychological condition, and the Tribunal was required to determine Comcare's liability for this condition.

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

The issues for determination in the review are:1) in relation to all the applications, whether the Applicant continues to suffer from the effects of the conditions of ‘neck sprain, sprain of unspecified site of shoulder and upper arm (left), lumbosacral (joint) (ligament) strain, wrist sprain (right) and chronic pain syndrome’ (‘the accepted conditions’); and 2) if the Applicant continues to suffer from the effects of his accepted conditions, whether the Applicant is entitled to each of the respective compensation claims he has made under ss 16, 19, 24, 27 and 29 of the SRC Act and which are properly before the Tribunal;3) whether the Respondent is liable for the Applicant’s claimed psychological condition.APPLICANT’S EVIDENCE Injuries and compensation claimsLow lumbar sprain - June 1993 On 28 June 1993, the Applicant tripped over a whipper snipper causing him to fall backwards on his lower back/buttocks.[24] On 30 June 1993, the Applicant completed a claim for workers’ compensation for an ‘injured tail bone’. He wrote that he was ‘in the storage shed repairing my lawnmower, when I stood up, took a step back & fell over the whipper snipper, landing on my back’. The Respondent accepted liability under s14 of the Act for the low lumbar sprain sustained by the Applicant.[25] [24] Exhibit EA1, [5]; ST1.[25] Claim 117742/01. The Applicant was off work for about eight to nine months following this injury.[26] He underwent ‘conservative treatment’ including hydrotherapy and physiotherapy and was able to return to work and resume his normal duties.[27] [26] Transcript of proceedings, 25 May 2021, 42 – 43.[27] Exhibit EA1, [5]. In his statement dated 12 April 2021, the Applicant wrote that when he returned to work, he noticed his condition was getting worse. He told the Tribunal that following discussions with his doctors, he was made aware that he would not be able to work as a motor mechanic in the future. He had completed an apprenticeship and was a fully qualified LPG fitter and held an air conditioning licence.[28] He told the Tribunal that this ‘psychological aspect’ affected him. [28] Transcript of proceedings, 25 May 2021, 33. During cross-examination, the Applicant told the Tribunal that following this incident he was ‘getting pain across the lower back and radiating down my left leg.’[29] When he was not working, he was attending doctors’ appointments and resting. He agreed that he was probably drinking more at this time and possibly gambling as well.[30] His significant pain symptoms continued into 1994, but after he returned to work it was not as bad.[31][29] Transcript of proceedings, 25 May 2021, 23, 33, 42.[30] Transcript of proceedings, 25 May 2021, 33, 43.[31] Transcript of proceedings, 25 May 2021, 48. The Applicant saw Dr Chen on 30 October 1997 who reported that what the Applicant had sustained in 1993 was a muscololigamentous strain, and it should have ceased within a few weeks.[32] [32] Exhibit ER2, [R7].

Decision

Reasons for decision

The evidence before the Tribunal supports a finding that the Applicant’s diagnosed psychological condition, whenever it arose, was a result of non-employment factors. In Dr Mutha’s opinion, the Applicant’s Adjustment Disorder is a result of family and financial stress and pain consequent to non-work-related incidents.[219] Dr Dinnen’s opinion in relation to the Applicant’s diagnosed Major Depressive Disorder that is a consequence of the chronic pain and disability he suffers, is based upon the assumption, contrary to the findings of the Tribunal, that the Applicant’s pain has an employment contribution. [219] T29 - AAT 2020/4423 & 4489.DECISION The Reviewable Decisions which are the subject of the six applications for review are affirmed.

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].