Swindale and Comcare (Compensation) - [2019] AATA 2426

Swindale and Comcare (Compensation) [2019] AATA 2426 (7 August 2019)
Division:GENERAL DIVISION
File Numbers: 2016/4381 & 2016/4529
Re:Neil Swindale
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Deputy President R I Hanger AM QC
Date:7 August 2019
Place:Brisbane

The decision under review is affirmed.
............................[SGD]..........................................
Deputy President R I Hanger AM QC
Catchwords
COMPENSATION – Whether Comcare is liable to pay compensation – whether Comcare is liable for a claimed psychological condition - massage treatment – anti-depressants as treatment for a back condition – where psychological condition diagnosed significantly after accident – decision under review affirmed.
Legislation
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Cases
Kirkpatrick v Comcare (1985) 9 FCR 36
Secondary Materials
“Massage for low-back pain” Cochrane Database of Systematic Reviews 2015 (The Cochrane Review), 1 September 2015
REASONS FOR DECISION
Deputy President R I Hanger AM QC
7 August 2019
INTRODUCTION

The Applicant seeks a review of a reconsideration decision of the Respondent dated

13 July 2016 which affirmed two determinations each dated 5 May 2016.
The first determination which was affirmed on review, determined that the Respondent is not liable to pay compensation to the Applicant under section 16 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the Act”) for massage treatment and antidepressants as medical treatment for aggravation of the “left L5/S1 disc protrusion”, sustained on 23 August 1996, which is the accepted condition.
The second determination which was affirmed on review, denied liability under section 14 of the Act for “adjustment disorder with depressed mood” which is the claimed psychological condition.
BACKGROUND AND CLAIMS HISTORY
The Applicant was injured at work in 1994. While working for the Department of Administrative Services, he was rolling a 44 gallon drum on the tray of a truck when he slipped but managed to hang onto the drum. He developed pain and stiffness in his lower back which persisted. He attended his general practitioner and was given a week off work. He then went on holiday and during the holiday he collapsed with an acute episode of lower back pain and left-sided sciatica. He was taken by ambulance to hospital and subsequently underwent a laminectomy for a disc protrusion at the L4/S1 level, performed by Dr A.W.M. Hunn. After three months away from work he made a graduated return to work and returned to full-time duty.
He gave evidence, and it is supported by a statement of Dr W. Max Wearne, Consultant Orthopaedic Surgeon, in his report of 12 May 1999, that the Applicant experienced no pain in his back for the next 18 months.[1]
[1] Exhibit 5, T Documents, T11, pages 23 – 30, Report of Dr W. Max Wearne, dated 12 May 1999.
In about April 1996, the Applicant began to experience niggles of pain and in August 1996 after performing some raking at work, he began to experience significant aching in his back which became associated with sciatic pain in his left leg. His general practitioner,

Dr D. McLeod, referred him for a…

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.

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Details

Case: [2019] AATA 2426
Decision Date: 7 August 2019

CaseChat Overview and Summary

The matter of *Swindale and Comcare (Compensation)* concerned an application by the applicant, Mr Swindale, seeking compensation from Comcare for an adjustment disorder with depressed mood. The applicant had sustained a workplace injury in 1994, involving a fall while handling a drum, which resulted in persistent lower back pain and sciatica. Despite undergoing surgery and a period of recovery, the applicant experienced recurrent episodes of back pain and sciatic discomfort, particularly after an aggravation in 1996. Medical advice suggested a shift towards less physically demanding duties. The core of the dispute revolved around whether Comcare was liable to compensate the applicant for a psychological condition that was diagnosed significantly after the initial injury and subsequent aggravations.

The court was required to determine whether the applicant's claimed psychological condition, an adjustment disorder with depressed mood, was a compensable injury under the relevant legislation. Specifically, the court had to assess whether there was a sufficient employment contribution to this psychological condition, given that it was diagnosed considerably later than the physical injury and its subsequent recurrences. The court also considered the nature of the treatment sought, including massage and anti-depressants, in relation to the claimed condition and the underlying back injury.

In reaching its decision, the court considered the available medical evidence, contemporaneous records, and the applicant's conduct in relation to Comcare's decisions. The court found that there was no significant employment contribution to the claimed psychological condition. Instead, it concluded that the condition arose primarily from the applicant's frustration with Comcare and other personal matters occurring in his life at the time. Consequently, the court affirmed the decision under review, which had denied liability for the psychological condition.

Orders

Orders of the court

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Background

Background to the litigation

The second determination which was affirmed on review, denied liability under section 14 of the Act for “adjustment disorder with depressed mood” which is the claimed psychological condition.BACKGROUND AND CLAIMS HISTORY The Applicant was injured at work in 1994. While working for the Department of Administrative Services, he was rolling a 44 gallon drum on the tray of a truck when he slipped but managed to hang onto the drum. He developed pain and stiffness in his lower back which persisted. He attended his general practitioner and was given a week off work. He then went on holiday and during the holiday he collapsed with an acute episode of lower back pain and left-sided sciatica. He was taken by ambulance to hospital and subsequently underwent a laminectomy for a disc protrusion at the L4/S1 level, performed by Dr A.W.M. Hunn. After three months away from work he made a graduated return to work and returned to full-time duty. He gave evidence, and it is supported by a statement of Dr W. Max Wearne, Consultant Orthopaedic Surgeon, in his report of 12 May 1999, that the Applicant experienced no pain in his back for the next 18 months.[1][1] Exhibit 5, T Documents, T11, pages 23 – 30, Report of Dr W. Max Wearne, dated 12 May 1999. In about April 1996, the Applicant began to experience niggles of pain and in August 1996 after performing some raking at work, he began to experience significant aching in his back which became associated with sciatic pain in his left leg. His general practitioner, Dr D. McLeod, referred him for a CT scan which showed a disc fragment extruded at L5/S1. Dr McLeod gave him a few days off work and certified him as fit for modified duties with no bending and no lifting of loads in excess of 10kg.[2] The 1996 aggravation was managed conservatively.[2] Exhibit 5, T Documents, T4, pages 10 – 11, Report of Dr D. McLeod, dated 23 September 1996. From the end of 1996, the Applicant appears to have been recovering well and maintaining a good level of capacity. He was having minimal treatment, minimal time off work, exercising, performing his leisure activities, and working 34 hours a week subject to the restriction on lifting. He was reviewed by Dr Hunn on 20 and 27 June 1997.[3] He complained of intermittent recurrent episodes of back and left leg discomfort interspersed with periods of time where his symptoms were minimal or absent. Dr Hunn reported the Applicant had generally coped with his symptoms or if time off work was required, had dealt with it within the parameters of his access to flex days rather than making claims upon workers compensation. He attributed the symptoms to his injury in 1994, and reviewed a recent MRI scan which showed evidence of the previous surgery with associated degenerative changes in the lower two lumbar discs. Dr Hunn suggested that future employment should move towards organisational and supervisory duties and away from duties requiring physical exertion and particularly recurrent lifting and bending. The Applicant was advised to lose weight and that manual work might continue to cause him problems.[4] [3] Exhibit 5, T Documents, T7, page 15, Report of Dr A.W.M Hunn, dated 27 June 1997. [4] Exhibit 5, T Documents, T9, pages 17 – 18, Report of Dr D. McLeod, dated 26 February 1999.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Based on the medical evidence; the contemporaneous records; and the attitude of the Applicant towards the Respondent with respect to both its decision to cease paying for massage treatment and in these proceedings generally, I am satisfied that there is no significant employment contribution to the claimed psychological condition. It arose out of his frustration with the Respondent and various other matters that were occurring in his life at the time which caused him frustration.CONCLUSION The decision under review is affirmed.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.