Stefaniak and Comcare (Compensation)

Case [2019] AATA 1866

Stefaniak and Comcare (Compensation) [2019] AATA 1866 (12 July 2019)

Division:GENERAL DIVISION

File Number(s):      2017/7604

Re:Jonathan Stefaniak

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Senior Member D O’Donovan

Date:12 July 2019

Place:Canberra

Pursuant to section 43(1)(c)(i) of the Administrative Appeals Tribunal Act 1975, the Tribunal sets aside the decision under review and, in substitution determines that Comcare is liable to pay compensation to the applicant in relation to the pain symptoms which arose during his employment with the Office of National Assessments in accordance with the Safety, Rehabilitation and Compensation Act 1988.

........................................................................

Senior Member D O’Donovan

Catchwords

WORKERS COMPENSATION ­– insidious onset of pubic related groin pain – whether the applicant suffers from a diagnosable condition - whether condition contributed to by employment to the requisite degree – evidence of expert witnesses – whether the applicant is entitled to compensation in the absence of any physiological change, pathology or a known diagnosis – decision set aside and substituted

Legislation

Administrative Appeals Tribunal Act 1975, s 43(1)(c)(i)

Safety, Rehabilitation and Compensation Act 1988, ss 4, 5A, 5B

Cases

Australian Postal Corporation v Bessey [2001] FCA 266
Australian Postal Corporation v Lucas (1991) 33 FCR 101
Comcare v Muir [2016] FCA 346
Comcare v Power [2015] FCA 1502
Comcare v Reardon [2015] FCA 1166
Commonwealth v Beattie (1981) 35 ALR 369
Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626
Lees v Comcare [1999] FCA 753
Mellor v Australian Postal Corporation & anor [2009] FCA 504
Military Rehabilitation and Compensation Commission v Katterns [2017] FCA 641
Military Rehabilitation and Compensation Commission v May [2016] HCA 19
Re Musumeci and Department of Health (1990) 19 ALD 797
Tippett v Australian Postal Corporation [1998] FCA 335

REASONS FOR DECISION

Senior Member D O'Donovan

12 July 2019

  1. This matter concerns an application for compensation in relation to pain experienced by the applicant, Mr Stefaniak, soon after he commenced employment with the Office of National Assessments (ONA). The biological cause of the pain remains uncertain. The applicant’s claim was initially rejected by Comcare on 26 September 2017 and a reviewable decision confirming that rejection was made on 16 November 2017. The matter raises for determination the difficult question of whether pain, the cause of which has never been ascertained, but which is genuine and strongly associated with the performance of certain duties, can amount to an injury as defined in the Safety, Rehabilitation and Compensation Act 1988 (SRC Act).

    BACKGROUND

  2. The applicant is a sprinter. He has been involved in athletics all his life with varying levels of commitment. From around 2014 he re-organised his working life and selected jobs which enabled him to focus on his athletic training.

  3. The applicant trained with the Australian Institute of Sport and his athletic training between 2014 and 2017 enabled him to achieve personal best performances in competition early in 2017. In the applicant’s words, he was, at that point in time, very fit and strong, healthy and on an upward trajectory.

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AGLC
Stefaniak and Comcare (Compensation) [2019] AATA 1866
Case
[2019] AATA 1866
Decision Date

CaseChat Overview and Summary

This matter concerned an application for workers' compensation by Mr. Stefaniak against Comcare. Mr. Stefaniak claimed that pain experienced in his lower abdomen and pelvic region, which commenced shortly after he began employment as a courier with the Office of National Assessments (ONA), was caused or significantly contributed to by his work duties. Comcare had rejected his claim, a decision that was subsequently affirmed on review. The central dispute was whether genuine pain, strongly associated with employment but lacking a definitive physiological cause or diagnosis, could constitute an "injury" under the *Safety, Rehabilitation and Compensation Act 1988* (SRC Act).

The court was required to determine whether Mr. Stefaniak suffered from a diagnosable condition and, if so, whether his employment contributed to it to the requisite degree. A key legal issue was whether compensation could be awarded in the absence of any identified physiological change, pathology, or known diagnosis, provided the pain was genuine and demonstrably linked to work. The court also had to consider the weight to be given to the expert medical evidence, particularly in light of criticisms levelled against one of the reporting physicians.

The court found that, despite the absence of a precise medical diagnosis for Mr. Stefaniak's pain, its connection to his work at the ONA was strongly established. It concluded that his employment duties aggravated an underlying, albeit unidentified, condition. While the underlying condition itself might not meet the definition of an injury under the SRC Act, the pain symptoms arising from the work duties did. The court determined that Mr. Stefaniak's employment contributed to these pain symptoms to a significant degree.

Consequently, the Administrative Appeals Tribunal set aside Comcare's decision and substituted a determination that Comcare was liable to pay compensation to Mr. Stefaniak in relation to the pain symptoms that arose during his employment with the ONA, in accordance with the SRC Act. The court noted that any period of liability would be limited, given that the work duties only prompted the symptoms.

Orders

Orders of the court

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Background

Background to the litigation

This matter concerns an application for compensation in relation to pain experienced by the applicant, Mr Stefaniak, soon after he commenced employment with the Office of National Assessments (ONA). The biological cause of the pain remains uncertain. The applicant’s claim was initially rejected by Comcare on 26 September 2017 and a reviewable decision confirming that rejection was made on 16 November 2017. The matter raises for determination the difficult question of whether pain, the cause of which has never been ascertained, but which is genuine and strongly associated with the performance of certain duties, can amount to an injury as defined in the Safety, Rehabilitation and Compensation Act 1988 (SRC Act).BACKGROUND The applicant is a sprinter. He has been involved in athletics all his life with varying levels of commitment. From around 2014 he re-organised his working life and selected jobs which enabled him to focus on his athletic training. The applicant trained with the Australian Institute of Sport and his athletic training between 2014 and 2017 enabled him to achieve personal best performances in competition early in 2017. In the applicant’s words, he was, at that point in time, very fit and strong, healthy and on an upward trajectory. On 6 March 2017, the applicant commenced employment with the ONA as a courier. By May 2017, he was unable to train and by July 2017 was having difficulty walking. The reason for this significant change in functional capacity was pain which the applicant experienced in the lower abdomen and pelvic region. The applicant contends that the work he performed at the ONA significantly contributed to the symptoms from which he suffered. The respondent contends that, any ailment suffered by the applicant, was not significantly contributed to by his employment. Instead, the problems which the applicant experienced were the result of his athletic training.HISTORY OF THE INJURY The following represent my findings of fact. The findings are based primarily on the oral evidence of the applicant. Where I have relied upon another source it is identified. For present purposes the history of this matter can begin in mid-2016. The applicant began what he describes as heavy training in July 2016. In some weeks, that involved training 3 to 4 times per week consisting of 3 runs, 2 gym sessions, 1 circuit, and 3 pilates and yoga sessions.[1] What each session involved varied over time but even in periods described as light training the applicant would include activities such as weighted squats involving weights of up to 100 kilograms and lifting free weights of 50 kilograms.[1] Exhibit A1, folio 3. From November 2016, the applicant was competing in one or two athletic events each month. Notwithstanding the intensity of the applicant’s training and competing, it is not in dispute that the applicant was symptom free when he commenced his employment at the ONA in March 2017. At the ONA the applicant was employed to provide secure delivery of classified material to various destinations around Canberra. This included Parliament House and the Department of Defence. The heaviest weight the applicant claims he was required to carry was 10 kilograms of classified materials within a secure, hard-shell briefcase. I am not positively satisfied that the loads the applicant was required to carry were as heavy as claimed, but, having regard to my other conclusions below about the nature of the injury, I do not consider it necessary to determine precisely how heavy the load was.

Evidence

Evidence Before The Court

The applicant resigned from the ONA on 29 August 2017.MEDICAL EVIDENCE Four doctors expressed opinions in relation to the applicant’s condition. The first was Dr Harris, the applicant’s treating doctor. Dr Harris specialises in sports medicine. Dr Harris’ reports document a history of the applicant’s pain being provoked by the work duties and that his pain settled considerably with load reduction and with having time off work. She noted that it ‘seems clear that the work duties have a causal relationship to his pain’[12] but never reached a definitive diagnosis of the cause of the pain. She did, however, speculate that ‘’the assymetrical nature of the new role, has caused a minor internal abdominal wall or fascial tear which was previously known as a ‘sportsmans hernia’.’’[13] [12] ST8.A, folio 39.[13] Ibid, folio 40. The second doctor to see the applicant was Dr Uthum Dias, consultant occupational physician. He saw the applicant and prepared a report for ONA on 18 July 2017, when the applicant was still suffering from acute symptoms. The applicant levelled significant criticism at the examination undertaken by Dr Dias, in emails immediately after the report was delivered,[14] in his request for reconsideration[15] and in the application to the Tribunal.[16] The criticisms of Dr Dias were repeated in the applicant’s oral submissions to the Tribunal. [14] T9, folio 34.[15] T13, folio 57.[16] T2, folio 7. Dr Dias was not called to give evidence to defend his report and in light of the unanswered criticisms of the report I am not inclined to place much weight on it. Dr Dias gave a ‘main provisional diagnosis’ of ‘athletic pubalgia, more commonly called sports hernia, affecting predominantly the right side of Mr Stefaniak’s pubic region. The differential diagnosis is of mild osteitis pubis.’[17] On the basis of those diagnoses, Dr Dias concluded it was far more likely that the applicant’s symptoms were caused by his intensive athletic training regime rather than his pre-injury role as a courier.[18][17] T7, folio 24.[18] Ibid, folio 27. The third doctor to see the applicant was Dr David Fitzgerald, a Consultant Occupational Physician. Dr Fitzgerald saw the applicant on 8 September 2017 and prepared a report dated 15 September 2017. Dr Fitzgerald accepted the current working diagnosis of sportsman’s hernia but noted ‘other differential diagnoses such as osteitis pubis, pubic symphysitis, adductor tendinitis, stress fractures and others, some of which have not been fully ruled out.’[19] [19] T11, folio 47. Dr Fitzgerald noted ‘the detailed account of a temporal relationship between activities at work and flaring of symptoms’ but considered, ‘increasing symptoms associated with work as not necessarily an indication of causation.’[20] He considered it unlikely that the loads which the applicant was carrying would result in a significant abdominal or inguinal injury. However, he noted that “[i]t may be the case, however, that in the presence of a unilateral lower abdominal/inguinal injury such activities may exacerbate symptoms’.[21][20] Ibid, folio 47.[21] Ibid.

Decision

Reasons for decision

In this case, notwithstanding the absence of a clear understanding of the biological cause of the applicant’s pain, its link to the applicant’s work is strongly established. While precise classification is difficult, the most appropriate finding given the reported history, medical reports and results of medical testing is that the applicant’s duties at the ONA aggravated an underlying disease which at this point in time cannot be identified with any precision. The underlying disease does not meet the definition of an injury in the SRC Act, but the symptoms arising from the work duties do. The applicant’s employment contributed to those pain symptoms to a significant degree. Given my finding that the work duties only prompted symptoms any period of liability will be necessarily limited.DECISION Pursuant to section 43(1)(c)(i) of the Administrative Appeals Tribunal Act 1975, the Tribunal sets aside the decision under review and, in substitution determines that Comcare is liable to pay compensation to the applicant in relation to the pain symptoms which arose during his employment with the Office of National Assessments in accordance with the Safety, Rehabilitation and Compensation Act 1988.

Ratio Decidendi

Legal Principle Established

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