Thompson and Comcare (Compensation) - [2020] AATA 431

Thompson and Comcare (Compensation) [2020] AATA 431 (10 March 2020)
Division:GENERAL DIVISION
File Number(s): 2018/1706
Re:Douglas Thompson
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Emeritus Professor P A Fairall, Senior Member
Date:10 March 2020
Place:Sydney

The Tribunal sets aside the reviewable decision and remits the matter to Comcare for reconsideration, on the basis that Comcare has by reason of section 14 an ongoing liability under section 16 for medical expenses and section 19 for incapacity payments in relation to the applicant’s left hip injury.
............................[sgd]............................................
Emeritus Professor P A Fairall, Senior Member
CATCHWORDS
COMPENSATION – workers compensation – osteoarthritis of the left hip – bilateral hip replacements – claim for ‘frank’ injury to right hip rejected – whether original determination of liability in relation to left hip was correct – Telstra Corporation Ltd v Hannaford – whether employment no longer contributed to a significant degree – decision under review set aside and remitted
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 5A, 5B, 14, 16, 19, 62, 68, 69
CASES
Comcare v Nichols [1999] FCA 209
Comcare v Power [2015] FCA 1502
Prain v Comcare [2017] FCAFC 143
Telstra Corporation v Hannaford [2006] 151 FCR 253
Thompson and Comcare (Compensation) [2018] AATA 2707
REASONS FOR DECISION
Emeritus Professor P A Fairall, Senior Member
10 March 2020
OVERVIEW

The applicant was employed as an aviation firefighter by a Commonwealth agency, Airservices Australia, for more than thirty years. Over the course of his working life he developed osteoarthritis in both hips, a degenerative disease.
In 2013 his left hip became symptomatic, and he applied for compensation. Comcare determined that his employment had contributed in a significant way to the condition of his left hip. The determination was made under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (‘the SRC Act’), a necessary step for recovery of medical expenses and compensation.
By 2016, the applicant had end stage hip disease (‘ESHD’) and had bilateral hip replacements. The left hip was replaced in March, and the right was replaced five months later in August.
Comcare paid for the new left hip but refused to accept liability for the right hip, and the applicant paid for the replacement himself. Comcare’s refusal was upheld by the Administrative Appeals Tribunal (‘the Tribunal’) in August 2018,[1] whereupon he made a fresh claim, on the basis that he had suffered a ‘frank’ injury to his right hip in December 2015 whilst on duty. Comcare rejected the new claim.
[1] Thompson and Comcare (Compensation) [2018] AATA 2707.
By a separate process, on 28 March 2018 Comcare determined that the applicant was no longer experiencing the effects of his employment and therefore had no present entitlement to compensation for his left hip condition (‘the reviewable decision’).
The matter came before the Tribunal on review of both determinations, but on the first day the applicant withdrew the ‘frank injury’ claim for his right hip.
In light of all the evidence now available, I find that…

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 Thompson and Comcare (Compensation)

Details

AGLC: Thompson and Comcare (Compensation) [2020] AATA 431
Case: [2020] AATA 431
Decision Date: 10 March 2020

CaseChat Overview and Summary

This matter concerned an application by Douglas Thompson against Comcare, heard by Emeritus Professor P A Fairall, Senior Member. The applicant, a former aviation firefighter, sought compensation for osteoarthritis in both hips. While compensation for the left hip had been accepted, Comcare had rejected the claim for the right hip. The applicant had undergone bilateral hip replacements, the second for the right hip occurring after the initial rejection of his claim for that injury.

The primary legal issues before the Tribunal were whether the applicant's employment as an aviation firefighter was a significant contributing factor to the development of osteoarthritis in his right hip, and consequently, whether Comcare's decision to deny liability for that condition was correct. The Tribunal was required to consider the evidence presented, including expert medical opinions, and determine if the applicant's arduous work duties, which involved significant physical exertion and maintenance of high fitness levels, had contributed to the degenerative condition in his right hip to a degree that warranted compensation under the relevant Commonwealth employment legislation.

The Tribunal's reasoning focused on the evidence presented, particularly the expert reports. Professor Youssef, engaged by Comcare, opined that while the applicant had femoroacetabular impingement predisposing him to osteoarthritis, his employment was at most a minor factor, and he likely would have developed the condition independently of his work. Conversely, the applicant's treating physician, Dr Brookes, argued that the demands of the applicant's work were the primary cause of his premature bilateral hip arthritis. The Tribunal noted that the applicant had withdrawn his application concerning the right hip during the proceedings.

Given the withdrawal of the application relating to the right hip, the Tribunal found that the correct and preferable decision was to set aside the reviewable decision and remit the matter to Comcare for further consideration. This outcome acknowledged the complexities of the evidence and the procedural development of the case, allowing for a fresh assessment by Comcare.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

In considering whether a person is entitled to compensation by reason of Commonwealth employment the factors referred to in section 5B(2) must be considered. BACKGROUND The applicant was employed as an aviation firefighter by Airservices Australia for 32 years, retiring from service on 1 July 2017. The lot of an aviation firefighter is not for the feint-hearted. It is arduous work, requiring both mental and physical strength and fitness. They are required to develop and maintain high levels of fitness and strength, sufficient to handle heavy water hoses and waterlogged dummies, in a state of constant preparation for a serious event. High fitness levels are expected of firefighters as part of the job. Gym facilities are provided at airport fire stations, and like all firefighters, the applicant was required to engage in vigorous weight building exercises in order to achieve and maintain the required levels of strength and fitness. The actual tasks he performed as part of his daily duties included activities such as crawling and weight training that imposed heavy loads on his hips. This was apparently no hardship for the applicant, who from a young age enjoyed robust physical exercise, playing rugby league until 27 and later, squash at competitive levels. Although his employer did not mandate participation in such sports, the applicant believed that they were aware of his participation and were happy about it.[5] [5] Transcript, 2018/1706, 5 February 2020, 119, [40]. On or about 27 July 2013 the applicant injured himself while exercising in the work gym. He saw his physician, Dr Owen Brookes, who referred him for an ultrasound which was carried out by the Southern Radiology Group on 1 August 2013.[6] The Report states: [6] T6/22. The hip joint is normally aligned. There is reduction in the anterior femoral head/neck offset resulting from a broad based femoral head/neck “bump” associated with elevation of the alpha angle (65 degrees). Occasional small subcortical cysts associated with patchy marrow oedema at the anterior femoral head/neck junction suggest impingement lesions. The acetabulum defines normally.A focal segment of irregular under surface erosion of the anterosuperior labrum measuring at least 0.3cm adjacent to the chondrolabral junction at the 2 o’clock position is evident. Subtle degenerative fraying of the anterosuperior labrum at the 1 o’clock position is evident. There is subtle myxoid degeneration within the lateral labrum anteriorly at the 12.30 position. Intact anterior and posterior labra, fovea capitis and pulvinar. There is myxoid degeneration within the foeval insertional fibres of the ligamentum teres. There is hip joint osteoarthritis characterised by small irregular marginal femoral head and irregular sclerotic superolateral acetabular osteophytes associated with denudation of most of the weight bearing superolateral acetabular and femoral head articular cartilage associated with subchondral cysts and patchy subchondral bone marrow oedema within the axial femoral head and a little patchy subchondral bone marrow oedema within the superolateral acetabulum along the lateral joint line. At least one 0.6 geode is evident within the midline anterosuperior acetabulum.…Comment1.Moderately advanced hip osteoarthritis, notable for grade IV involvement2.Predisposing factors for CAM type FAI with impingement lesions providing a degree of evidence of active impingement3.Subtle under surface erosion of the anterosuperior labrum, also supportive for cam type FAI4.Myxoid degeneration within the lateral labrum5.Myxoid degeneration of the foveal insertional fibres of the ligamentum teres6.Mild psoas tendonosis.

Evidence

Evidence Before The Court

The parties both invited me to review the evidence presented at this earlier hearing.Evidence of Professor Peter Youssef – Report dated 15 November 2016 Professor Youssef interviewed and examined the applicant on 15 November 2016,[51] which is also the date of his report. He was provided with background medical reports from Doctors Brookes, Chen and Loi, as well as various Tribunal documents. He was not provided MRI or ultrasound reports pertaining to the right hip. It appears that none existed. He also carried out a physical examination and commented upon various aspects of the applicant’s physical functioning, including his lower limbs, upper limbs, and spine. He described the applicant’s temperament as pleasant and cooperative.[52] His assessment is as follows: [The applicant] has degenerative disease of both hips. This has been predisposed to by the fact that he has femoroacetabular impingement. The Cam lesions were seen on the MRI of the left hip dated 1 August 2013. This is based on the presence of Cam lesions, which are bumps on the edge of the femoral head, results in grinding of the cartilage inside the acetabulum. A non-spherical femoral head could result in damage to the acetabular labrum by either pressing against the labrum or by a pincer type effect with the femoral neck abutting against the labrum. This may result in repetitive mechanical impingement. These lesions predispose the development of osteoarthritis.I have not seen a report of an MRI of the right hip or x-rays of the right hip. These are also likely to show similar lesions as the condition is almost always bilateral.[53][51] T68/158.[52] T68/162.[53] T68/169. He relied on academic papers to support his conclusion that:Therefore, it is my opinion that the major factor in the development of his osteoarthritis was the underlying femoroacetabular impingement. The other major factor is age as osteoarthritis is increased in older patients. His employment is at most a minor factor in the development of this condition and he would have developed this condition independent of his employment. In fact, he was likely to have been symptomatic from degenerative disease of the left hip in his late 40s while he was playing squash. This is almost certainly the cause of him needing to take time off from the game from groin pain. The reason why he developed left groin pain earlier than right groin pain is because the left hip disease was worse than the right hip disease at that time. He would have become symptomatic from hip osteoarthritis independent of his work.[54][54] T68/169. Although Professor Youssef did not see any Magnetic Resonance Imaging (MRI) or x-rays of the right hip, he reiterated at hearing that ‘these are also likely to show similar lesions as the condition is almost always bilateral’.[55][55] Transcript, 6 April 2018, ST49/502 [30], 503 [5]. In response to specific questions, Professor Youssef stated:I do not consider that his work was a significant contributor to his condition. If there was any contribution, it was small. The movements that result in impingement are mainly those of abduction of the hip. The drills that he performed required some hip abduction such as when crawling in small spaces. In fact, playing squash for many years was likely to be a greater contributor to the progression of his condition than his work.…I do not consider that his current condition was contributed to in any significant way by his employment. If there was a contribution, it was small and may have been related to some of the drills he was performing such as twisting and crawling in small spaces. Even these drills may not have required a significant amount of hip abduction. …I do not consider that he suffers from a condition significantly contributed to by his employment.[56][56] T68/173 to 174.

Decision

Reasons for decision

In light of all the evidence now available, I find that the correct or preferable decision is to set aside the reviewable decision and remit the matter to Comcare for further consideration. REASONS FOR DECISION In 2013 the applicant suffered a workplace injury to his left hip. As a Commonwealth employee, he is entitled to access a compensation scheme provided for under the SRC Act. The present proceedings involved two applications by the applicant: (a)for his left hip – seeking review of a ‘no present entitlements’ determination (2018/1706); and(b)for his right hip – seeking review of a ‘no liability’ determination (2018/7730). Both matters were listed for hearing before the Tribunal and were heard simultaneously on 4 – 5 February 2020. Both parties were legally represented. On the afternoon of the first day the applicant withdrew the second application relating to his right hip, and later formalised the withdrawal in writing. No reasons were provided, as none were required. Neither counsel sought to withdraw any of the materials admitted into evidence before the Tribunal, some of which related to the earlier proceeding before the Tribunal relating to the right hip, including the complete transcript of those proceedings.[2][2] Thompson and Comcare (Compensation) [2018] AATA 2707 (2016/3772), per Deputy President Rayment QC: T82, 237; Transcript, 27 September 2017, ST49/390; 28 September 2017, ST49/462; and 6 April 2018, ST49/491. The witnesses before the Tribunal were as follows:(a)For the applicant:(i)The applicant; and(ii)Dr Roger Pillemer, Orthopaedic Surgeon.(b)For the respondent: (i)Professor Peter Youssef, Consultant Rheumatologist, Clinical Professor at the University of Sydney. The following materials were before the Tribunal:·2018/1706 section 37 documents; ·2018/1706 supplementary section 37 documents; ·2018/7730 section 37 documents; ·Exhibit A1 Douglas Thompson 05/02/2020 - Letter to Comcare dated, 15 August 2013;·Exhibit A2 Douglas Thompson 05/02/2020 - Report of Dr Roger Pillemer, dated 1 May 2019;·Exhibit A3 Douglas Thompson 05/02/2020 - Report of Dr Roger Pillemer, dated 2 May 2019;·Exhibit R1 Comcare 05/02/2020 - Report of Professor Peter Youssef, dated 9 July 2019;·List of Academic papers before the Tribunal:oGanz et al, “Femoroacetabular impingement: a cause for osteoarthritis of the hip”, Clinical Orthopaedics and Related Research (2003) No 417, 112-120.oReichenbach at al, “Association between Cam-Type Deformities and Magnetic Resonance Imaging-Detected Structural Hip Damage”, Arthritis and Rheumatism (2011) No 63, 4023-4030.oDoherty et al, “Nonspherical Femoral Head Shape (Pistol Grip Deformity), Neck Shaft Angle, and Risk of Hip Osteoarthritis”, Arthritis and Rheumatism (2008) No 58, 3172 – 3182.oNicholls et al, “The Association between Hip Morphology Parameters and Nineteen-Year Risk of end-Stage Osteoarthritis of the Hip”, Arthritis and Rheumatism (2011) No 63, 3392-3400.oAgricola et al, “Cam impingement causes osteoarthritis of the hip: a nationwide prospective cohort study (Check) (sic)” Ann Rheum Dis 2013: 72: 918-923; and oCroft at al, “Osteoarthritis of the hip and occupational activity”, Scandinavian Journal of Work and Environmental Health (1992), 59-63.

Ratio Decidendi

Legal Principle Established

On 10 May 2016 Dr Brookes wrote to Comcare asking it to reconsider the decision not to allow compensation in respect of the right hip.[40] It is worth setting out the letter in full:I am writing in behalf of [the applicant] in regard to his claim for his right hip. As you are aware [the applicant] works for the Fire Brigade and has done so for many years. This is a very active job that requires a high level of fitness that needs to be maintained by regular exercise. Indeed, he is required to work out in the gym facilities on a daily basis at his work, including running, jogging and walking for 30 to 60 minutes per day. In addition to formal exercise, his work includes regular drills carrying heavy firefighting equipment, including hoses and other ancillary equipment. There are also regular duties for maintenance of all equipment including the firetruck. These activities again involve the lifting and carrying of heavy equipment. [The applicant] works 10 hour shift and he estimates that only 30 minutes on average would be spent sedentary. [The applicant] has been diagnosed with bilateral hip arthritis. This condition is caused by wear and tear on the hips through exercise, running and lifting, all activities required in his workplace. It is certainly my belief that this arthritis is largely caused by his activity in his workplace, this is not the natural consequences of ageing, [the applicant] has premature hip arthritis due to the demands of his work place. He is not overweight and has no other predisposition to hip arthritis. COMCARE has quite rightly accepted that work related wear and tear has caused the degeneration of his left hip and quite rightly paid for total hip replacement on that side. It makes no logical sense that if the left hip arthritis was caused by his work, that the right hip degeneration was not. There is no history of injury to either hip. In summary, it is my belief that [the applicant] has premature osteoarthritis of both hips caused by his work as a fireman. His orthopaedic surgeon, Dr Darren Chen agrees with my findings. I respectfully request COMCARE to reconsider its decision about compensatable injury to the right hip.(emphasis added)[40] T54/127. On 12 May 2016 the applicant wrote to Comcare about the decision to decline compensation for his right hip,[41] and lodged a reconsideration request.[42] [41] T55/128.[42] T56/130. On 8 June 2016 Comcare affirmed the determination.[43][43] T63/143. On 19 August 2016 the applicant underwent a total replacement of the right hip, which he paid for himself,[44] and less than a year later, on 1 July 2017 he ceased work at Airservices Australia. [44] ST33/333. The applicant applied to the Tribunal to review the refusal by Comcare to grant the claim for compensation for the right hip.[45] On 11 November 2016 Comcare requested Professor Youssef, a consultant rheumatologist, to provide an expert opinion with respect to the applicant’s right hip condition.[46] His report is dated 15 November 2016.[47] Reports were also obtained by Dr James Bodel. His primary report is dated 7 March 2017,[48] with supplementary reports dated 1 June 2017[49] and 22 August 2017.[50] [45] The Tribunal file is 2016/3772.[46] T68.1/176.[47] T68/158.[48] T69/181.[49] T73/212.[50] T74/217.