Stanton and Comcare - [2015] AATA 297

[2015] AATA 297

Division GENERAL ADMINISTRATIVE DIVISION

File Number

2014/3704

Daniel Stanton

APPLICANT

And

Comcare

RESPONDENT

DECISION

Tribunal
Dr James Popple, Senior Member

Date 5 May 2015

Place Canberra
Comcare’s decision on 16 July 2014 is affirmed.

...............................[sgd].........................................
James Popple, Senior Member
CATCHWORDS
COMPENSATION — Commonwealth employees — ongoing liability for accepted condition — whether Applicant continues to suffer effects of condition — decision affirmed.

LEGISLATION
Safety, Rehabilitation and Compensation Act 1988, ss 14, 16, 19

CASES
Commonwealth v Borg, unreported, Federal Court of Australia, Full Court, 15 November 1991

Greaves and Comcare [2015] AATA 177

Telstra Corporation Ltd v Hannaford (2006) 151 FCR 253

REASONS FOR DECISION
James Popple, Senior Member
5 May 2015
Summary

I affirm Comcare’s decision that, from 15 May 2014, Comcare was no longer liable to pay the applicant compensation for medical expenses, or for incapacity for work, under the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act). At that date, the applicant no longer suffered from the effects of the compensable injury to his shoulder for which Comcare accepted liability on 10 January 2011.
Background
Mr Daniel Stanton works for the Australian Bureau of Statistics (the ABS). On 9 December 2010, he made a claim for workers’ compensation for a sprain to his “top left back”. He said that this was due to repetitive lifting of small weights over a two-week period at his work. On 10 January 2011, Comcare accepted liability, under s 14 of the SRC Act for Mr Stanton’s supraspinatus (muscle) (tendon) strain (left), affections of shoulder region (left), and disorders of bursae and tendons shoulder region (left), with a date of injury of 3 December 2010.
Mr Stanton underwent treatment for his shoulder injury (the compensable injury) and, on 17 May 2011, started a return-to-work program. On 11 July 2011, Comcare closed his return-to-work plan on the basis that he had returned to full-time employment with the ABS. At the time, Comcare noted that “[t]he pain in [Mr Stanton’s] left shoulder has partially settled; however he experiences some discomfort when performing gym-based exercises”. Comcare also noted that Mr Stanton “continues to attend a supervised gym rehabilitation program regularly and also receives hands-on physiotherapy treatment”.
But in June 2011, Mr Stanton’s shoulder pain had spontaneously returned. On 27 July 2011, Mr Stanton started another return-to-work program. He underwent further treatment, including (on 9 August 2011) a cortisone injection. On 21 November 2011, Comcare closed this return-to-work plan on the basis that Mr Stanton had again returned to full-time employment with the ABS. Comcare noted that his shoulder pain had “settled” and that he was continuing with his supervised gym program and physiotherapy treatment.
In late 2012, Mr Stanton’s shoulder pain spontaneously returned again. On 22 March 2013, following ultrasound reports which showed that he had subacromial bursitis, he had surgery on his left shoulder: an arthroscopic decompression. On 10 May 2013, he started a rehabilitation program. On 11 December 2013, Comcare closed the rehabilitation program on…

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 Stanton and Comcare

Details

AGLC: Stanton and Comcare [2015] AATA 297
Case: [2015] AATA 297
Decision Date: 5 May 2015

CaseChat Overview and Summary

The applicant, Mr Stanton, sought review of Comcare’s decision that he was no longer entitled to compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth). The decision under review affirmed Comcare’s decision that Mr Stanton was no longer entitled to compensation. The issues for the Tribunal to decide were whether Mr Stanton continued to suffer from the effects of the compensable injury, and if so, whether he required medical treatment for which compensation was payable and whether he was incapacitated for work as a result of the injury. The Tribunal found that Mr Stanton continued to suffer from the effects of the compensable injury, and as such, Comcare remained liable to pay compensation in respect of his medical treatment and any incapacity for work.

The Tribunal heard evidence from Mr Stanton and two orthopaedic surgeons, Dr Sindy Vrancic and Dr Geoffrey Stubbs. Mr Stanton provided evidence of the progress of his shoulder condition since late 2010, which was consistent with the medical evidence before the Tribunal. The medical evidence confirmed that Mr Stanton suffered from ongoing tendinosis/bursitis/impingement syndrome, which required regular maintenance exercises to minimise symptoms. Dr Vrancic concluded that Mr Stanton’s condition resulted from a combination of anatomical predisposition, an unergonomic posture in the workplace, and poor non-operative management. The Tribunal accepted Mr Stanton’s evidence and found that he continued to suffer from the effects of the compensable injury.

Based on the evidence, the Tribunal concluded that Mr Stanton continued to suffer from the effects of the compensable injury. Comcare remained liable to pay compensation in respect of his medical treatment and any incapacity for work. The Tribunal found that Mr Stanton required ongoing treatment for his condition, and that his condition had significantly affected his life, impacting his ability to work. The Tribunal affirmed Comcare’s decision but found that Comcare remained liable to pay compensation to Mr Stanton for his ongoing condition.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

On 18 July 2014, Mr Stanton applied to the Tribunal, under s 64 of the SRC Act and s 29(1) of the Administrative Appeals Tribunal Act 1975, for review of that decision.Decision under review The decision under review is Comcare’s decision on 16 July 2014 affirming its decision that Mr Stanton was no longer entitled to compensation under ss 16 or 19 of the SRC Act.Issues The issues in this review are:·whether Mr Stanton continues to suffer from the effects of the compensable injury; and·if he does:owhether he requires medical treatment for which compensation is payable; andowhether he is incapacitated for work as a result of the compensable injury.Does Mr Stanton continue to suffer from the effects of the compensable injury? Under s 14 of the SRC Act, Comcare is liable to pay compensation in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment. Section 16 provides for Comcare to pay compensation in respect of medical treatment obtained in relation to an injury. Section 19 provides for Comcare to pay compensation to an employee who is incapacitated for work as a result of an injury. Comcare says that Mr Stanton no longer suffers the effects of the compensable injury. If that is true, then Comcare is no longer liable to pay compensation in respect of his medical treatment, and no longer liable to pay him if he is incapacitated for work. Mr Stanton gave evidence at the hearing about the progress of his shoulder condition since late 2010. I accept him as a witness of truth. I note that his evidence is broadly consistent with the medical evidence before the Tribunal. There is no doubt that Mr Stanton suffers from pain in his left shoulder, and that that pain has significantly affected his life. There is medical evidence from two orthopaedic surgeons: Dr Sindy Vrancic and Dr Geoffrey Stubbs. Mr Stanton has been Dr Vrancic’s patient since November 2012. Dr Vrancic prepared several reports about his condition between 9 November 2012 and 27 March 2015. In the most recent of these, she confirms her earlier view that Mr Stanton has “ongoing tendinosis/bursitis/impingement syndrome”. “These diagnoses”, she says, “are interchangeable and all relate to inflammation of the structures of the rotator cuff musculature as well as the subacromial space bursa”. She says that Mr Stanton has suffered “recurrent flare ups” of the same condition since 2010. She says that “[t]here is a constitutional component to [Mr Stanton’s] rotator cuff weakness which requires regular maintenance exercises to minimise symptoms”. Dr Vrancic concedes that it is difficult to determine the initial cause of impingement syndrome as it is “a whole range of issues that come together like a perfect storm”. However, she says that “[a]n anatomical predisposition coupled with an unergonomic posture in the workplace as well as poor non operative management can all lead to the vicious cycle of inflammation in the shoulder resulting in” the syndrome.

Ratio Decidendi

Legal Principle Established

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Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2014/3704
Daniel Stanton
APPLICANT
And	Comcare
RESPONDENT

Tribunal	Dr James Popple, Senior Member
Date	5 May 2015
Place	Canberra