Thompson and Comcare (Compensation)

Case [2019] AATA 714

Thompson and Comcare (Compensation) [2019] AATA 714 (16 April 2019)

Division:GENERAL DIVISION

File Number:          2017/3262

2017/3274

2017/3275

2017/4819

2017/5404

2017/7134

2017/7135

2017/7136

2017/7137

2018/2754

Re:Leon Thompson

APPLICANT

AndComcare

RESPONDENT

Decision

Tribunal:Deputy President Boyle

Date:16 April 2019  

Place:Perth

The Tribunal affirms the decisions under review.

.......[sgd].................................................................

Deputy President Boyle

Catchwords

COMPENSATION – Safety, Rehabilitation and Compensation Act 1988 (Cth) – ten applications – decisions under review affirmed

2017/3262 – requirement to provide medical certificates – s 54(1) – incapacity confirmed for specified period – Applicant required to submit a new claim for compensation – Respondent liable to pay incapacity compensation for specified period pursuant to s 20 – decision under review affirmed

2017/3274 and 2017/3275 – application of the formula in s 20 – reduction in compensation due to increase in superannuation payable – Applicant no longer pursues applications – Respondent’s application of the formula correct – decisions under review affirmed

2017/4819 – s 20 – calculation of normal weekly earnings (NWE) and inclusion of allowances – two week relevant period – decision under review affirmed

2017/5404 – calculation of NWE – request for review lodged five years out of time – should the Tribunal extend the time for review – does the Tribunal have jurisdiction to review the decision and if so, should the Tribunal grant the extension of time and was the NWE correctly calculated – Tribunal has jurisdiction to review the decision not to grant an extension of time – no acceptable explanation for delay – prejudice to the Respondent – where there is delay the whole quality of justice deteriorates – fairness as between the applicants and other persons otherwise in a like position – merits of the substantial application – extension of time not to be granted – decision under review affirmed

2017/7134 – s 20 – jurisdiction – Respondent not prohibited by s 26 of the Administrative Appeals Tribunal Act 1975 (Cth) – does the Applicant suffer from a back condition(s) – is that condition an ‘injury’ or ‘disease’ under the SRC Act – has the Applicant ceased to suffer from the injury – Applicant’s current symptoms caused by the development of degenerative spinal condition – Applicant no longer suffers from the injury – Respondent not presently liable to pay compensation in relation to injury – decision under review affirmed

2017/7135 – s 16 – does the Applicant suffer the psychological injury – does the psychological injury continue to be significantly contributed to by the Applicant’s employment by the Commonwealth – Tribunal is not satisfied that any mental ailment that the Applicant may now suffer is contributed to, to a significant degree, by the Applicant’s employment – Applicant has no entitlement to compensation for medical treatment obtained in relation to the psychological injury – decision under review affirmed

2017/7136 – s 24 – Applicant has no entitlement to permanent impairment compensation in relation to back injury and psychological injury – decision under review affirmed

2017/7137 – s 16 –…

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AGLC
Thompson and Comcare (Compensation) [2019] AATA 714
Case
[2019] AATA 714
Decision Date

CaseChat Overview and Summary

This matter concerned ten applications brought by the Applicant against Comcare, seeking review of various decisions made under the *Safety, Rehabilitation and Compensation Act 1988* (Cth). The applications spanned issues including the requirement for medical certificates, the calculation of incapacity compensation, the determination of normal weekly earnings, and the entitlement to compensation for injuries and medical treatment. A central dispute in one of the applications (2017/7134) revolved around whether the Applicant still suffered from a work-related back injury sustained in 2011, or if his current symptoms were attributable to a degenerative condition.

The court was required to determine several legal issues across the ten applications. These included whether the Applicant was entitled to incapacity compensation for specified periods, the correct application of the formula for calculating compensation reductions due to superannuation increases, and the proper calculation of normal weekly earnings, including the inclusion of allowances. Furthermore, the court had to consider whether to extend the time for lodging a review application, the jurisdiction of the Tribunal to review such decisions, and whether a particular back condition constituted an "injury" or "disease" under the Act, and if the Applicant still suffered from it. The court also had to assess whether a psychological injury was significantly contributed to by the Applicant's employment, and if compensation was payable for medical treatment and permanent impairment. Finally, the reasonableness of a gym membership as medical treatment was in question.

In relation to the application concerning the back injury (2017/7134), the court found that while the Applicant's employment may have aggravated a pre-existing degenerative condition, the evidence indicated that the Applicant no longer suffered from the original work-related injury. Medical reports suggested that current symptoms were due to a degenerative spinal condition, not the injury sustained in 2011. The court also determined that a gym membership was not reasonable treatment for the Applicant's condition due to insufficient evidence of its specific targeting of his back condition. In another application, the court found that the Tribunal had jurisdiction to review a decision not to grant an extension of time, but declined to grant the extension due to an unacceptable delay and prejudice to the Respondent. Across all applications, the court affirmed the decisions under review.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The fundamental dispute between the parties is that the Applicant asserts that he still suffers from the lower back injury suffered on 17 February 2011 (Applicant’s submissions para. 48). The Respondent argues that ‘on the balance of probabilities, the Applicant has ceased to suffer from the work related Injury and that what ails him presently is the degenerative condition’ (Respondent’s outline of submissions para. 38) or ‘in the alternative, that the correct and preferable decision is to determine that the Applicant continues to suffer from the physical Injury but is fit to return to pre-injury hours in a role that does not include repetitive lifting of more than 10kg, repetitive forward bending, sitting and standing or driving over rough terrain’ (Respondent’s outline of submissions para. 46).Evidence The Applicant points to the following evidence to support his claim (Applicant’s closing submissions for 2017/7134): (a)letter from the People Strategies Manager (Australian Quarantine and Inspection Service) dated 14 February 2012 (2017/7134 et al. T2/48-49) which states:In February 2011 Leon suffered a low back injury (L 2-4) whilst conducting a bulk fertiliser inspection. Leon attended his General Practitioner and was diagnosed with a low back injury (muscular) and since this time has had regular treatment including physiotherapy. Leon’s latest Medical Certificate indicated that his condition persists and that he needed to avoid repetitive bending/lifting and avoid repetitive use of the affected part. Since Leon’s injury he has continued to work and we have worked with Leon in restricting the tasks which appear to aggravate his injury (i.e. machinery inspections, bulk fertiliser inspections, tailgate inspections and personal unpacks.)(b)Workers’ compensation claim submitted on 30 April 2012.(c)On 26 September 2012 workers’ compensation approved for ‘aggravation of lumbar sprain’.(d)The MRI report of Perth Radiological Clinic dated 17 October 2012 (2017/7134 et al., T12/95) states:L4/5: There is disc desiccation and posterior annular fissuring. This is associated with diffuse disc bulge. This indents the ventral aspect of the thecal sac but does not impinge upon the forming L5 nerve roots or the exiting L4 nerve roots at this level. Mild facet arthropathy is noted bilaterally at this level.It is also stated in the report at the comments section at the bottom of the same page: ‘Mild degenerative changes are noted at L3/4 and L4/5 disc with shallow disc bulges not causing canal stenosis or nerve root impingement.’(e)The Applicant contends that the medical documentation supports that the injury sustained by the Applicant on 17 February 2011 was as a result of trauma due to the repetitive bending and lifting over a long period of time carrying out fertiliser inspections. The Respondent does not dispute that agreeing that the lower back condition ‘is properly described as an “injury simpliciter” within the meaning of s 5A(1)(b) of the Act’ (Respondent’s closing submissions para. 35).(f)Report of Dr Shetty dated 9 July 2013 (2017/7134 et al., T14/100) wherein Dr Shetty is asked the question: ‘Is/was the aggravation suffered by Mr Thompson related to: his/her employment as a Quarantine Officer?’ and Dr Shetty’s answer was: ‘Yes, Mr Thompson reported back pain following the reported incident.’ Then at 1(c) the question was asked of Dr Shetty: ‘Is/was the aggravation suffered by Mr Thompson related to: a pre-existing, congenital, constitutional or under-lying condition?’ In his answer Dr Shetty states: ‘There is no pre-existing condition to account for his back pain.’ In answer to the question at 1(e): ‘Is/was the aggravation suffered by Mr Thompson related to: underlying degeneration as part of the natural aging process?’ Dr Shetty states: ‘There are [sic] no significant degeneration.’(g)In a report dated 17 December 2013 the causal link between the Applicant’s employment and the Injury was indicated by Dr John Bell, orthopaedic surgeon, (2017/7134 at al., T17/112 at point 5). Dr Bell states ‘[t]he low back pain problems suffered by Mr Thompson do appear significantly related to his injury at work which occurred on 17 February 2011. There are no other obvious causes.’(h)In a supplementary report of Dr John Bell dated 29 April 2014 (2017/7134 et al., T18/117), Dr Bell outlined Facet Joint Arthropathy as ‘in addition to my major diagnosis of soft tissue injury of lumbosacral spine region in February 2011.’ He also states ‘[a]s outlined by the title given above, it was an injury caused by trauma.’ Dr Bell also stated:If it were not for the injury on 17 February 2011, then he would likely not continue to suffer with the soft tissue injury of his low back region. I believe the relationship of his continuing low back pain is significantly related to the original injury that occurred at work on 17 February 2011 … (2017/7134 et al., T18/118).(i)The report of Dr Geoffrey Graham dated 18 February 2016 (2017/3262, T6/40) states:Mr Thompson gives a history suggestive of minor degenerative change in his low back and this would appear to be consistent with the reported radiological findings and the minimal findings on clinical examination. I would recommend that he avoid repetitive bending and lifting, heavy lifting especially from a low level or work with a constantly bent back.(j)Dr Phillip Hardcastle states in the report dated 22 May 2018 (R3):… This does support that the current symptoms he is having do still relate to that particular injury date at work where he was involved with repetitive activities.In that report Dr Hardcastle, in answer to the question of whether the Applicant continues to suffer from the effects of a 2005 injury and/or an ‘aggravation of a lumbar sprain (bilateral)’ with a date of injury 17 February 2011, says ‘In my opinion he has fully recovered from the injury of 9 November 2005 and that he has had an injury of 17 February 2011 which is continuing to give symptoms’ (R4, page 7). (k)In that same report (R4/8) Dr Hardcastle also commented that:He does have evidence of transitional vertebra. However, the pain that he reports from my clinical assessment is around the L4 level which is above where the congenital anomaly is. Certainly I could not identify any sacroiliac pain from my assessment so I do not consider he has evidence to support a Bertolotti’s syndrome, despite the presence of transitional vertebra. There are pre-existing degenerative changes in the facet joint at the L3/4 level and disc bulging consistent with degeneration which would be considered pre-existing. From my assessment it is likely that these were aggravated as a result of this work.(l)Dr Clem McCormick in his report dated 4 July 2018, part of Dr Hardcastle’s report of 4 July 2018 (R4), having reviewed both the reports of the MRI scan dated 17 October 2012 and CT scan dated 22 June 2018, states: ‘Considering the 6 year interval between the scans, and comparing different modalities, I consider that the rate of progression is not rapid and the changes between the studies are mild…’ He further states: ‘Overall I do not consider any new pathology has developed between the studies.’(m)The Applicant also cites the following passages from Dr Hardcastle’s 22 May 2018 report (R3):i.The history is one where he is doing some repetitive bending and appears to have had a strain in his lower back in the mid-line regions (spinous processes), around the L4 level. I note that from my review of the medical documents when he was initially reviewed by Dr Pearce, that the tenderness was in that same area of the back (Dr J L Pearce report, 20 February 2012) which certainly supports his ongoing symptoms being still related to that area of pain where he has previously not had any symptoms from. This does support that the current symptoms he is having do relate to that particular injury date at work where he was involved in repetitive activities.ii.I would consider that given he was asymptomatic before the nature of the work duties undertaken on that day, that the aggravation was significant to a pre-existing degenerative condition...iii.There are pre-existing degenerative changes at both levels which appear to have been aggravated to a significant extent as a result of the reported injury.

Decision

Reasons for decision

I will deal with the applications in the order that the parties addressed them in their submissions made after the hearing.2017/7134 – no present liability decision, Back Injury The Applicant seeks review of a decision of the Respondent dated 21 November 2017 which reconsidered (on own motion) a determination dated 5 July 2017 and determined that the Respondent was not presently liable to pay compensation pursuant to s 20 of the SRC Act in relation to the Back Injury – ‘Intervertebral disc disorder – lumbar region’ in 2005 and an ‘aggravation of lumbar sprain (bilateral)’ in 2011 (2017/7134 et al., T57).Jurisdictional Issue As noted above, the Respondent raised a potential jurisdictional issue in relation to this application in its outline of submissions filed after the hearing. In summary the potential jurisdictional issue identified by the Respondent (Respondent’s outline of submissions, paras. 16-21) is as follows:(a)The medical certificate issued to the Applicant by his general practitioner on 31 May 2017 certificated the Applicant as unfit for work from 31 May 2017 to 31 August 2018 (2017/3262, T26 at 98-99). (b)On 5 July 2017 the Respondent determined that the Applicant was entitled to incapacity payments and calculated the amount payable pursuant to s 20 of the SRC Act (2017/7134 et al., T12). (c)On 27 July 2017 the Applicant requested a review of that determination (2017/4819, T13). The determination was affirmed in a reviewable decision dated 11 August 2017 (2017/4819, T18). That is, it was determined that the Applicant continued to be entitled to compensation payments calculated in accordance with the Respondent’s determination of 5 July 2017. (d)On 12 August 2017 the Applicant lodged an application in the Tribunal for review of the reviewable decision of 11 August 2017 (2017/4819, T2).(e)By the review on own motion decision contained within the reviewable decision dated 21 November 2017 (2017/7134 et al., T57), the Respondent revoked the determination dated 5 July 2017. By that determination on own motion the Respondent determined that the Applicant was not entitled to any incapacity payments under s 20 of the SRC Act.(f)Section 26 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) relevantly provides:(1)Subject to section 42D, after an application is made to the Tribunal for a review of a decision, the decision may not be altered otherwise than by the Tribunal on the review unless:…(b) the parties to the proceeding, and the Tribunal, consent to the making of the alteration.…(2)A reference in subsection (1) to the alteration of a decision is a reference to:(a) the variation of a decision;(b) the setting aside of a decision; or(c) the setting aside of a decision and the making of a decision in substitution for the decision set aside.(g)Section 4(12) of the SRC Act defines ‘proceeding’ as:(12)A reference in this Act to the institution of a proceeding under Part VI in respect of a reviewable decision is a reference to the making of an application to the Administrative Appeals Tribunal for review of that decision.(h)Because the Respondent did not review the reviewable decision of 11 August 2017 in the reviewable decision dated 21 November 2017, and only reviewed a determination, it was entitled to make the review of own motion decision, even though an application for review had been lodged in the Tribunal with respect to a separate reviewable decision arising from the same 5 July 2017 determination. Accordingly, the Respondent has not acted without power and the Tribunal has jurisdiction to consider both matters: Warren De Courcy Brown and Comcare [1997] AATA 528.

Ratio Decidendi

Legal Principle Established

The following submissions were provided by the parties after the hearing:(a)Respondent’s outline of submissions filed 23 October 2018;(b)Applicant’s submissions filed 20 November 2018; (c)Respondent’s reply filed 23 November 2018; and(d)Applicant’s response to the Respondent’s reply filed 23 November 2018.CONSIDERATION As set out above, there are ten separate applications lodged over the period from June 2017 to May 2018. They fall into several categories and the Tribunal’s decision in some of the applications will be impacted by the decisions in others. For instance, if the Tribunal makes certain findings as to whether there is any liability, there will be no need to consider the applications which deal only with the calculation of the rate or amount of entitlement if the Tribunal finds there is no liability. I will deal with the applications in the order that the parties addressed them in their submissions made after the hearing.2017/7134 – no present liability decision, Back Injury The Applicant seeks review of a decision of the Respondent dated 21 November 2017 which reconsidered (on own motion) a determination dated 5 July 2017 and determined that the Respondent was not presently liable to pay compensation pursuant to s 20 of the SRC Act in relation to the Back Injury – ‘Intervertebral disc disorder – lumbar region’ in 2005 and an ‘aggravation of lumbar sprain (bilateral)’ in 2011 (2017/7134 et al., T57).Jurisdictional Issue As noted above, the Respondent raised a potential jurisdictional issue in relation to this application in its outline of submissions filed after the hearing. In summary the potential jurisdictional issue identified by the Respondent (Respondent’s outline of submissions, paras. 16-21) is as follows:(a)The medical certificate issued to the Applicant by his general practitioner on 31 May 2017 certificated the Applicant as unfit for work from 31 May 2017 to 31 August 2018 (2017/3262, T26 at 98-99). (b)On 5 July 2017 the Respondent determined that the Applicant was entitled to incapacity payments and calculated the amount payable pursuant to s 20 of the SRC Act (2017/7134 et al., T12). (c)On 27 July 2017 the Applicant requested a review of that determination (2017/4819, T13). The determination was affirmed in a reviewable decision dated 11 August 2017 (2017/4819, T18). That is, it was determined that the Applicant continued to be entitled to compensation payments calculated in accordance with the Respondent’s determination of 5 July 2017. (d)On 12 August 2017 the Applicant lodged an application in the Tribunal for review of the reviewable decision of 11 August 2017 (2017/4819, T2).(e)By the review on own motion decision contained within the reviewable decision dated 21 November 2017 (2017/7134 et al., T57), the Respondent revoked the determination dated 5 July 2017. By that determination on own motion the Respondent determined that the Applicant was not entitled to any incapacity payments under s 20 of the SRC Act.(f)Section 26 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) relevantly provides:(1)Subject to section 42D, after an application is made to the Tribunal for a review of a decision, the decision may not be altered otherwise than by the Tribunal on the review unless:…(b) the parties to the proceeding, and the Tribunal, consent to the making of the alteration.…(2)A reference in subsection (1) to the alteration of a decision is a reference to:(a) the variation of a decision;(b) the setting aside of a decision; or(c) the setting aside of a decision and the making of a decision in substitution for the decision set aside.(g)Section 4(12) of the SRC Act defines ‘proceeding’ as:(12)A reference in this Act to the institution of a proceeding under Part VI in respect of a reviewable decision is a reference to the making of an application to the Administrative Appeals Tribunal for review of that decision.(h)Because the Respondent did not review the reviewable decision of 11 August 2017 in the reviewable decision dated 21 November 2017, and only reviewed a determination, it was entitled to make the review of own motion decision, even though an application for review had been lodged in the Tribunal with respect to a separate reviewable decision arising from the same 5 July 2017 determination. Accordingly, the Respondent has not acted without power and the Tribunal has jurisdiction to consider both matters: Warren De Courcy Brown and Comcare [1997] AATA 528.