1. The First Reviewable Decision is set aside and substituted with a new decision that:
(a)liability is accepted under s 14 of the Safety Rehabilitation and Compensation Act 1998 (Cth) (the SRC Act) for strongyloides between 16 July 2010 and 2 November 2015 and post-infectious irritable bowel syndrome from 16 July 2010 onwards; and
(b)liability is not accepted under s 14 of the SRC Act for the remainder of the conditions that the Tribunal has determined are part of the First Reviewable Decision.
2. The Second Reviewable Decision, Third Reviewable Decision and Fourth Reviewable Decision are affirmed.
3. The Tribunal declines to exercise discretion to make a costs order under s 67(8) of the SRC Act.
COMPENSATION – Workers’ Compensation – Commonwealth employee – whether liability should be accepted under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) – whether an ailment – whether a disease – causation – whether ailments contributed to, to a significant degree, by employment – factors that are not “employment”, including the stress of the claims process and “litigation stress” – Applicant worked for a Commonwealth agency in a remote region of Western Australia – whether Applicant contracted infectious and parasitic diseases and sequelae from attending a cross-cultural program run at a remote Indigenous community – bartonella, strongyloides, Murray Valley encephalitis, Kunjin/West Nile virus, Ross River virus reinfection, post-infectious irritable bowel syndrome, chronic fatigue syndrome/fibromyalgia, post-infectious reactive spondyloarthritis with enthesitis, stress and anxiety and low testosterone (hypogonadism) and sexual dysfunction – whether conditions which have a collection of subjectively experienced symptoms, including chronic fatigue syndrome and fibromyalgia, are ailments – incapacity or impairment – First Reviewable Decision set aside and substituted to accept liability for strongyloides between 16 July 2010 and 5 November 2015 and to accept liability for post-infectious irritable bowel syndrome from 16 July 2010 onwards – Second, Third and Fourth Reviewable Decisions affirmed
PROCEDURE – expert medical opinion – concurrent evidence – Applicant unrepresented at hearing (and assisted by his mother and brother) but retained counsel to prepare written closing submissions – where Applicant’s new counsel sought to reformulate Applicant’s claim to expand the timing, location and nature of the injury – where written closing submissions made new submissions that were not advanced at or before the hearing – where no claim made under s 16, but Applicant’s counsel requested Tribunal make an order that Comcare should pay the Applicant’s medical expenses under s 16 – the scope of the Tribunal’s review – whether Tribunal has jurisdiction to determine certain conditions not specified in initial claim – additional conditions claimed in the Applicant’s reconsideration request – whether the scope of the Applicant’s claim included the conditions of insomnia, headaches, vitamin D deficiency and…
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
AGLC
TRGD and Comcare (Compensation) [2021] AATA 2949
Case
[2021] AATA 2949
Decision Date
CaseChat Overview and Summary
This matter concerned an application by the Applicant for review of decisions made by a delegate of Comcare. The Applicant sought acceptance of liability under section 14 of the *Safety, Rehabilitation and Compensation Act 1988* (Cth) for a range of infectious and parasitic diseases, and associated sequelae, allegedly contracted during his employment with a Commonwealth agency in a remote region of Western Australia. These conditions included bartonella, strongyloides, Murray Valley encephalitis, Kunjin/West Nile virus, Ross River virus reinfection, post-infectious irritable bowel syndrome, chronic fatigue syndrome/fibromyalgia, post-infectious reactive spondyloarthritis with enthesitis, stress and anxiety, low testosterone (hypogonadism), and sexual dysfunction. Comcare accepted that the Applicant suffered from ailments but contended that none were contributed to, to a significant degree, by his employment.
The Tribunal was required to determine whether the Applicant's claimed conditions constituted "ailments" or "diseases" for the purposes of the Act, and crucially, whether these conditions were contributed to, to a significant degree, by his employment. The scope of the Tribunal's review was also a key issue, particularly concerning whether it had jurisdiction to consider conditions not specified in the Applicant's initial claims, such as insomnia, headaches, vitamin D deficiency, and somatoform/somatisation disorder. The Tribunal also considered the extent to which it could rely on medical literature and whether to exercise its discretion to award costs.
The Tribunal acknowledged that the Applicant undoubtedly suffered from chronic ailments. However, it found that it lacked jurisdiction to decide several of the ailments for which compensation was sought, as they had not been included in the Applicant's original claims. For the conditions of strongyloides and post-infectious irritable bowel syndrome, the Tribunal accepted liability, finding that the evidence supported the conclusion that these conditions were contributed to, to a significant degree, by the Applicant's employment. For the remaining conditions, the Tribunal found that the evidence did not support the requisite degree of contribution from employment. The Tribunal also declined to exercise its discretion to make a costs order.
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
By application 2019/2370, filed with the Tribunal on 2 May 2019 (R5/T2/5–7), the Applicant seeks review of a decision of a delegate of Comcare dated 22 March 2019 (R5/T13/62–65) (Fourth Reviewable Decision). The Fourth Reviewable Decision affirmed a determination of a delegate of Comcare dated 8 February 2019 (R5/T9/51) which “declined” (that is, denied liability for) the Applicant’s claim for “low testosterone/ hypogonadism” under s 14 (which Comcare referred to as “unspecified testicular dysfunction”) (R5/T9/51–52), which the Applicant had made a claim for on 5 November 2018 (R5/T4/13–18). THE PARTIES’ SUBMISSIONS The Applicant submitted that liability should be accepted by Comcare under s 14(1) with respect to all of his claimed conditions, which, the Applicant submits were contributed to, to the relevant degree, by his employment with the Agency. The Applicant noted that the Agency he worked for is also supportive of his claims. Indeed, the Applicant cited correspondence from the Agency which supports the view that the Applicant’s employment was a “significant contributing factor in the development of his medical conditions” (A1/2; A3/file 3/1–2). Comcare accepts that the Applicant suffers or suffered from ailments. However, Comcare submitted that none of the Applicant’s ailments were contributed to, to a significant degree, by the Applicant’s employment with the Agency, and so Comcare should not accept liability under s 14(1) (R1/25). THE OUTCOME The Tribunal agrees that the Applicant undoubtedly suffers from chronic ailments. However, for the reasons set out below, the Tribunal does not have jurisdiction to decide several of the ailments which the Applicant seeks compensation for because they were not included in his original claims. Except for strongyloides and post-infectious irritable bowel syndrome, the Tribunal has found, for the reasons set out below, that the evidence does not support the conclusion that the ailments which the Applicant seeks compensation for were contributed to, to a significant degree, by his employment with the Agency. MATERIAL BEFORE THE TRIBUNAL The hearing of this matter took place between 7 September 2020 and 11 September 2020 by videoconference in accordance with the Tribunal’s policy not to conduct in-person hearings as a temporary protective measure due to the COVID-19 pandemic. The Tribunal thanks the parties for their cooperation in appearing in this manner. The Applicant was represented by his mother and brother at the hearing. Mr PG Woulfe appeared as Counsel for Comcare, instructed by Mr L Woolley from Sparke Helmore Lawyers. The Applicant gave evidence on day one, day two and day three of the hearing and was cross-examined by Mr Woulfe. Dr P Hannay, who was one of the Applicant’s treating doctors, gave evidence on day three of the hearing. Dr D Gorman, consultant general physician, pain management specialist and medical oncologist, also gave evidence on day three of the hearing.