Waititi and Cleanaway Operations Pty Ltd (Compensation)
[2021] AATA 924
•19 April 2021
Waititi and Cleanaway Operations Pty Ltd (Compensation) [2021] AATA 924 (19 April 2021)
Division:GENERAL DIVISION
File Number:2019/4630
Re:ERIC WAITITI
APPLICANT
CLEANAWAY OPERATIONS PTY LTD And
RESPONDENT
DECISION
Tribunal:Senior Member Katter
Date:19 April 2021
Place: Brisbane
The decision under review is affirmed.
.............[SGD]..................................................
Senior Member Katter
CATCHWORDS
COMPENSATION – workplace injury – cost of medical treatment – compensation in respect of an injury suffered if the injury results in incapacity for work – cessation of liability to pay compensation – injury no longer results in incapacity for work – decision under review affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth)
CASES
Comcare v Lofts [2013] FCA 1197; (2013) 217 FCR 220
Liu v Comcare [2004] AATA 617
REASONS FOR DECISION
Senior Member Katter
19 April 2021
APPLICATION
This is an application for review of the Respondent’s reconsideration decision dated 20 June 2019[1], that decided no further entitlement to medical expenses and incapacity payments from 2 May 2019[2] in accordance with sections 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the Act”)[3].
[1] Exhibit 1, T2, page 10.
[2] Exhibit 1, T54, page 178.
[3] Exhibit 1, T2, page 13.
CLAIM
The Applicant lodged a claim for compensation with the Respondent dated 15 May 2018, for an injury to the left hand during the course of employment on 12 May 2018[4].
[4] Exhibit 1, T7, pages 42-54.
On 21 May 2018 a determination was issued by the Respondent accepting liability to pay the Applicant compensation pursuant to s 14 of the Act for a left-hand injury: ‘left trapezoid fracture’[5]. The date of the injury in that determination was 12 May 2018[6].
[5] Exhibit 1, T11, pages 58-62.
[6] Exhibit 1, T11, pages 58-62.
On 2 May 2019 a determination by the Respondent stated that the Applicant had ‘no present liability to pay compensation … for medical expenses or incapacity payments under the’ Act for the left trapezoid fracture of 12 May 2018[7].
[7] Exhibit 1, T54, page 178.
On 20 June 2019 the Respondent, further to a request for reconsideration of the determination dated 2 May 2019, determined no present liability for medical expenses and incapacity payments under sections 16 and 19 of the Act for the left trapezoid fracture of 12 May 2018[8].
[8] Exhibit 1, T59, page 188.
An Application for Review of Decision was filed in the Tribunal on 31 July 2019[9], stating as to ‘why the decision of 20 June 2019 was wrong’: ‘I believe that the decision was wrong and that all information was not taken into account’[10].
[9] Exhibit 1, T2, pages 5-9.
[10] Exhibit 1, T2, page 8.
ISSUES
It is submitted that the issue to be determined is whether, as at 20 June 2019 and presently, the Respondent is liable to pay compensation to the Applicant under sections 16 and 19 of the Act[11]. The Respondent submits that the Tribunal must consider whether the Applicant continues to suffer the effects of the accepted left-hand injury and, if so, whether the accepted left-hand injury results in the need for medical treatment and/or results in an incapacity for work[12].
[11] Respondent’s submissions dated 7 December 2020, page 1, paragraph 6.
[12] Respondent’s submissions dated 7 December 2020, page 2, paragraph 7.
EVIDENCE
The Applicant had been employed in the same role[13] for some 10 years[14] prior to 12 May 2018, commencing employment with the Respondent on 27 October 2016 as a driver[15].
[13] Transcript, P-7, line 27.
[14] Transcript, P-7, line 20.
[15] Submissions of the Respondent dated 7 December 2020, page 3, paragraph 13.
The Applicant stated that on 12 May 2018 he was:
… tipping [a] bin, it’s called a hook truck and it carries one bin and … when you tip the bin, you’ve got to open the door, latch it and then tip [the] bin up. Then when I went to close the door, there was some rubbish stuck in between the hinges, so I held the door with my right hand and put my left hand in to pull the rubbish out and a gust of wind blew the door shut and … caught my hand[16].
This occurred at the Respondent’s ‘base’ location[17] in the morning on 12 May 2018[18]. This was the Applicant’s first bin[19] for the day, with a normal day for the Applicant being some five bin-loads[20]. The Applicant stated that after injuring his hand on that day, he then called his supervisor, told the supervisor what had happened and indicated to the supervisor that he could carry on work for the day[21], which the Applicant did[22].
[16] Transcript, P-7, lines 36-40.
[17] Transcript, P-8, line 7.
[18] Transcript, P-8, line 14.
[19] Transcript, P-8, line 12.
[20] Transcript, P-8, line 22.
[21] Transcript, P-8, lines 30-32.
[22] Transcript, P-8, line 32.
After work finished that day, at about 2pm[23], the Applicant stated that his daughter saw that his hand was swollen and took him to the hospital, where the hand was ‘scanned’[24]. The Applicant’s hand was put in plaster[25] and the Applicant was provided with a medical certificate for seven days off-work[26]. In a medical certificate dated 12 May 2018, completed by Dr Hughes of the Logan Hospital, the diagnosis of the Applicant’s left-hand injury is recorded as a ‘[left] scaphoid clinical fracture’[27].
[23] Transcript, P-8, line 32.
[24] Transcript, P-8, lines 33-35.
[25] Transcript, P-8, line 38.
[26] Transcript, P-8, line 37.
[27] Exhibit 1, T6, page 28.
On the next day, 13 May 2018[28], the Applicant was picked up and taken to work, where he was then working in the office, with the work activities on that day including filing and sweeping[29].
[28] Transcript, P-9, line 1.
[29] Transcript, P-9, lines 6-10.
On the next day, 14 May 2018[30], the Applicant stated that he went to a general practitioner, who did an x-ray, with the doctor then indicating that he was able to ‘go back on light duties’[31]. There is a record of the Applicant seeing Dr Walpole, a general practitioner, on 16 May 2018, with Dr Walpole providing a medical certificate and referring the Applicant for radiological investigation and a referral for consultation with an orthopaedic surgeon, Dr Marchant[32]. A CT scan report dated 16 May 2018 states:
No scaphoid fracture identified. Adjacent to dorsal aspect of trapezium and trapezoid, there is a fragment of bone … with the suggestion of corresponding defect on the trapezoid suggesting a fracture possibly recent. No further evidence of carpal fracture. Some lucencies in head of ulna suggesting degenerative change[33].
Dr Walpole stated in a work capacity certificate, that if suitable duties are available, the Applicant can return to ‘some form of work’ from 16 May 2018 (that also being the date of the signature on that certificate)[34].
[30] Transcript, P-9, line 10.
[31] Transcript, P-9, lines 11-13.
[32] Exhibit 1, T6, page 30.
[33] Exhibit 1, T8, page 55.
[34] Exhibit 1, T6, page 30, parts D and G.
The Applicant stated that he then continued doing light duties for some three weeks[35]. The Applicant then had an appointment with Dr Marchant, an orthopaedic surgeon of the hand and upper limb[36], who referred the Applicant for further tests[37]. In a report dated 29 May 2018, Dr Marchant stated:
… x ray and CT are suggestive of a fracture to the trapezoid bone. There is no overt evidence of any other fracture.
I have organised for [the Applicant] to undergo an MRI scan looking specifically at the soft tissues of the wrist today to make sure there is no other associated injuries. … I have cautioned him today that these crush injuries can take between four and six months to improve[38].
In a medical certificate by Dr Marchant on 29 May 2018, it was stated that the Applicant could ‘return to some form of work from’ 29 May 2018, ‘if suitable duties are available’[39].
[35] Transcript, P-9, line 45.
[36] Exhibit 1, T14, page 66.
[37] Transcript, P-10, line 5.
[38] Exhibit 1, T14, page 66.
[39] Exhibit 1, T6, page 31.
On 31 May 2018, Dr Marchant stated that the MRI ‘shows some degenerative change in the wrist and TFCC but no … tears ... [It] also looks like he has an undisplaced fracture as described previously’[40].
[40] Exhibit 1, T15, page 67.
Thereafter at work the Applicant stated he was doing a four-hour day[41], but stated that he was being ‘pressured’ to stay at work for seven and a half hours, which he could not do as his hand was ‘throbbing’[42].
[41] Transcript, P-10, line 6.
[42] Transcript, P-10, lines 7-8.
About two months later the Applicant stated that he asked Dr Marchant whether he could ‘go back into the truck because [his] hand would have more rest’ in that role[43]. The Applicant stated that Dr Marchant referred to the Applicant working five and a half hours only in the truck[44]. In medical certificates by Dr Marchant dated 21 June 2018[45], 13 July 2018[46] and 30 August 2018[47] it was stated that the Applicant had capacity to return to some form of work from 29 May 2018 if suitable duties were available[48]. The Applicant stated that he was asked to work seven and a half hours per day, but in response requested that he ‘come out of the truck and put the hand on ice in the office for two and a half hours’[49].
[43] Transcript, P-10, lines 9-10.
[44] Transcript, P-10, line 13.
[45] Exhibit 1, T6, page 32.
[46] Exhibit 1, T6, page 33.
[47] Exhibit 1, T6, page 34.
[48] Exhibit 1, T6, pages 32-34.
[49] Transcript, P-10, lines 14-15, 19-22.
The Applicant saw Dr Hope, an orthopaedic surgeon, on 16 October 2018, on referral from Dr Marchant[50]. Dr Hope stated in a report of 16 October 2018:
MRI on the 31st August [2018] showed the bony contusion had resolved with no additional diagnosis found.
[The Applicant] continues to complain of pain and swelling in the hand. … The pain is primarily felt around the radial side of the left wrist …
[The Applicant] has no past history of inflammatory conditions. There is a positive history of gout on his father’s side. Based on the examination and imaging, there is no clear explanation for [the Applicant’s] ongoing symptoms. I would recommend he be evaluated by a rheumatologist to exclude gout in its early stages for completeness.
… I would recommend he continue with his hand therapy and graduated return to work. I would not entertain the thought of any surgical management at this time[51].
[50] Exhibit 1, T21, page 89.
[51] Exhibit 1, T21, pages 89-90.
The Applicant attended with Dr Klestov, a rheumatologist, who stated in a report dated 12 November 2018[52]:
On examination … [l]eft wrist slightly puffy and tender to palpitation. Left thumb is also tender to deep palpitation and is slightly limited to flexion. Left shoulder is painful at the extremes of internal and external rotation – musculoskeletal system otherwise unremarkable. …
I thought the above presentation was consistent with slowly resolving left wrist soft tissue crush injury and which is manifesting in a patient with underlying Crohn’s disease / [ischaemic heart disease]. The slow resolution of his musculoskeletal symptoms and the persistence of the left shoulder symptoms, could be indicative of mild underlying Inflammatory Arthopathy associated with underlying Crohn’s disease.
[52] Exhibit 1, T25, page 95.
On 6 December 2018 Dr Marchant approved a build up to full-time hours driving a truck, over the next 4 weeks[53].
[53] Exhibit 1, T30 page 107; transcript, P-17, lines 33-36.
On 16 January 2019 Dr Marchant referred the Applicant to a neurologist, Dr Green[54]. In that referral Dr Marchant states[55]:
I have seen [the Applicant] again … today and he has described a history of a month or so [of] new symptoms involving paraesthesia and numbness in his hand and forearm. From his description [it] appears to be predominantly in a median nerve distribution. He also complains of pain in his left shoulder.
In that referral of 16 January 2019 Dr Marchant states that the Applicant initially reported pain, swelling and decreased range of movement in the hand and wrist, but it has improved steadily with ongoing treatment with the hand therapist and the Applicant’s hand swelling has ‘certainly improved’[56].
[54] Exhibit 1, T34, page 120.
[55] Exhibit 1, T34, page 120; transcript, P-18, lines 24-28.
[56] Transcript, P-18, lines 21-23.
In an isotope bone scan report of 20 February 2019, Dr Daunt stated:
CT SPECT has been performed of the left wrist and hand and this shows a little uptake related to the ulnar carpal impaction that is evident on previous plain radiographs between the distal ulna and opposing lunate surface and shows very slight uptake associated with the STT joint and trapezoid which is probably largely degenerate and related to an intraosseous ganglion in the distal pole of the scaphoid. No abnormal activity related to the mildly degenerate first CMC joint. There is no specific abnormal uptake related to the site of the previous bone fragment seen on the CT of the left wrist and I suspect this is pre-existing/long standing[57].
[57] Exhibit 1, T39, page 136.
A nerve conduction study showed no evidence of a median neuropathy in particular[58], with a report of Dr Green, neurologist, dated 28 February 2019 stating[59]:
He still feels that it is slightly swollen at the moment. This may be due to him not using his hand as much as he usually would due to pain. He is right-handed so this injury involves his non-dominant left hand. He tells me he is back at work almost full-time doing the same job. … His ongoing concern is the pain in the thenar eminence which is definitely exacerbated with thumb movement. He denies any numbness or tingling of the hand. The pain can come on at any time to a mild degree but is definitely worsened when he moves his thumb at the carpometacarpal joint of the thumb.
There was no redness or definite swelling that I could detect today. There was pain on examination of all thumb movements.
[58] Exhibit 1, T41, page 146.
[59] Exhibit 1, T41, page 146.
The Applicant attended the Crestmead Medical Centre and on 24 April 2019 an ultrasound and x-ray report were provided as to the Applicant’s left shoulder, with the Applicant at that time reporting a history of ‘limited movement’ in the left shoulder, with pain[60]. The findings of that report were that there was significant degenerative disease in that shoulder[61].
[60] Transcript, P-19, lines 38-41.
[61] Transcript, P-19, lines 43-46.
On 15 May 2019 an x-ray was performed and there was ‘significant osteoarthritis disease’ in the left glenohumeral joints[62].
[62] Transcript, P-20, line 26.
The Applicant stated that on 5 June 2019[63] he was told, when attending the Respondent’s premises, that there was no work for him[64]. Thereafter, the Applicant went to work each day for two weeks and was told every morning that there was ‘no work and to go home’[65].
[63] Transcript, P-11, lines 1-5.
[64] Transcript, P-11, line 8.
[65] Transcript, P-11, lines 7-8.
The Applicant was to go to a pain management appointment organised by Dr Marchant after May 2019[66]. The Applicant’s last documented attendance with a medical practitioner as to his hand was in July 2019 at the Crestmead Medical Centre[67].
[66] Transcript, P-11, lines 18-37.
[67] Transcript, P-12, lines 20-26.
The Applicant went to live in New Zealand in late August 2019[68]. The Applicant stated in oral evidence that he has seen a general practitioner about his left hand in New Zealand[69]. The Applicant also stated that he has not received a referral to a specialist in New Zealand[70].
[68] Transcript, P-12, lines 37-40.
[69] Transcript, P-13, lines 11-14.
[70] Transcript, P-13, lines 18-21.
The Applicant stated that he has not worked in New Zealand since August 2019[71]. The Applicant stated, on the date of the hearing, 9 November 2020, that the left hand ‘was the same as when [he] first injured it’, being swollen as if he was on a plane[72]. The Applicant stated that his hand was swollen all the time and is ‘worse at night … because sometimes [he] might [lie] on it’[73]. The Applicant referred particularly to the thumb area of the hand, but stated that the whole hand is more swollen than the right hand[74].
[71] Transcript, P-13, lines 35-41.
[72] Transcript, P-14, lines 1-2.
[73] Transcript, P-14, lines 16-19.
[74] Transcript, P-14, lines 25-26.
Dr Steadman
Dr Peter Steadman, an orthopaedic surgeon, gave oral evidence at the hearing[75]. Dr Steadman provided four medical reports as to the Applicant: 25 September 2018[76], 22 February 2019[77], 3 April 2019[78] and 12 November 2019[79].
[75] Transcript, P-25-P-41.
[76] Exhibit 1, T20, page 79.
[77] Exhibit 1, T40, page 137.
[78] Exhibit 1, T49, page 159.
[79] Exhibit 3.
Dr Steadman stated that the Applicant had not broken the scaphoid bone in his left hand, but there was ‘some suggestion [the Applicant] had a trapezial fracture, which is another small bone in the hand, and basically was diagnosed with his crush injury and the possibility of a small crack in the bone of the wrist’[80].
[80] Transcript, P-26, lines 44-47.
When Dr Steadman saw the Applicant in September 2018, some four months after the injury, the Applicant’s hand was ‘still uncomfortable’ and looked ‘sort of swollen’[81]. At that time, the Applicant had some ‘reduced movement’, and did not have ‘any evidence’ of a ‘complex regional pain syndrome’[82]. At that time, the Applicant had difficulty ‘squeezing his fingers into his palm’ but did not have any other sensory loss[83].
[81] Transcript, P-27, lines 1-2.
[82] Transcript, P-27, lines 2-3.
[83] Transcript, P-27, lines 4-5.
Dr Steadman stated that when he saw the Applicant in February 2019 ‘the hand was looking a lot better’[84]. In contrast to the attendance with Dr Steadman of September 2018, by February 2019 the Applicant was ‘almost able to make a full fist and the fingers were about a half a centimetre from the palm’, with the wrist range of motion improved[85].
[84] Transcript, P-27, line 23.
[85] Transcript, P-27, lines 27-28.
By reason of the history taken in February 2019, including the Applicant stating that he was waking up at night with a stinging feeling in his hands[86], Dr Steadman sought a nerve conduction study as he considered that the Applicant might have carpal tunnel syndrome[87]. Dr Steadman agreed in oral evidence that there was an ongoing issue in February 2019 which was symptomatic or indicative of there being a long-term problem resulting from the crush injury sustained at work[88]; however, the doctor described it as an acute injury that gets better, in contrast to a chronic injury or a chronic condition that then might go on to continue to cause symptoms[89].
[86] Transcript, P-33, line 11.
[87] Transcript, P-27, lines 31-34.
[88] Transcript, P-34, lines 30-33.
[89] Transcript, P-34, lines 36-38.
Dr Steadman agreed that it was a reasonable thing to assume that if there was still swelling, even if it has been reduced, and if there was still pain, even if the function has improved, that that was indicative of there being some long-term consequential injury from the crush injury sustained at work[90]. Dr Steadman agreed that whilst the swelling may have gone down it may never have become ‘unswollen’ since it was crushed[91], although in referring to his handwritten notes he could not find any reference to the hand still being swollen during the February 2019 consultation[92]. That is that the doctor could not see any clinical signs of the hand of the Applicant being swollen during the February 2019 consultation[93].
[90] Transcript, P-35, lines 20-26.
[91] Transcript, P-36, lines 31-33.
[92] Transcript, P-38, lines 15-16.
[93] Transcript, P-39, line 12.
On 3 April 2019 Dr Steadman was provided with a nerve conduction study by Dr Kerryn Green which stated that there was no evidence of carpal tunnel syndrome[94]. Dr Steadman stated that there was ‘a little bit of thumb arthritis and … no electrical … features of carpal tunnel … and that … there was [no] other treatment at that stage that would be of assistance’[95].
[94] Transcript, P-27, lines 39-41.
[95] Transcript, P-27, lines 43-45.
In reference to the report of 12 November 2019[96] Dr Steadman stated that there were ‘some changes on the x-ray that were on the radial side of [the Applicant’s] hand around the base of [the] thumb, which is a common sort of finding’[97]. Dr Steadman stated that there were not major differences between the opinion of Dr Marchant and his opinion as to the Applicant’s hand: he had had a crush injury; it had progressed steadily; he did not have carpal tunnel; he had some arthritis; he was probably fit to perform normal work duties; ‘we couldn’t find anything to treat’; he’d reached the stage where he would be at maximal medical improvement, meaning that we didn’t feel that there was any other care that would assist[98]. Dr Steadman stated that it ‘would not have been of any further assistance’ to have gone ‘to the hand therapist twice a week or once a week or once a fortnight … as opposed to … using the hand normally to achieve that last little bit of recovery’[99]. Dr Steadman stated that the Applicant as at 9 November 2020 did not require medical treatment in respect of his left hand injury and did not have any incapacity for work in his opinion[100]. The doctor stated that it was an ‘important point … that if [the Applicant] starts using the hand in normal day-to-day activity [it] actually helps it keep improving’[101]. Dr Steadman stated that ‘getting back to using the hand normally is often the best way to continue to get the hand stronger’[102].
[96] Exhibit 3.
[97] Transcript, P-28, lines 12-14.
[98] Transcript, P-28, lines 26-33.
[99] Transcript, P-32, lines 30-33.
[100] Transcript, P-28, lines 43-45.
[101] Transcript, P-29, lines 2-6.
[102] Transcript, P-31, lines 18-19.
CONSIDERATION
It is not in contention that the Respondent is a licensed authority according to s 98A of the Act, with references made to Comcare in the Act therefore being taken to be a reference to the Respondent[103].
[103] Respondent’s submissions dated 7 December 2020, page 2, paragraph 8.
There is an onus on the Respondent to persuade the Tribunal of the circumstances which justify a finding that compensation payments should no longer be made[104].
[104] Comcare v Power [2015] FCA 1502, [70] (Katzmann J).
Sections 14, 16 and 19 of the Act[105] relevantly state:
[105] Act No. 75 of 1988, C2019C00158 registered 1 May 2019.
14 Compensation for injuries
(1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in … incapacity for work, or impairment.
16 Compensation in respect of medical expenses etc.
(1) Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.
Note:Compensation is not payable under this subsection in relation to certain claims (see section 119A).
(2) Subsection (1) applies whether or not the injury results in … incapacity for work, or impairment.
19 Compensation for injuries resulting in incapacity
(1) This section applies to an employee who is incapacitated for work as a result of an injury, other than an employee to whom section 20, 21, 21A or 22 applies.
(2) Subject to this Part, Comcare is liable to pay to the employee in respect of the injury, for each week that is a maximum rate compensation week during which the employee is incapacitated, an amount of compensation worked out using the formula:
NWE–AE
where:
AE is the greater of the following amounts:
(a) the amount per week (if any) that the employee is able to earn in suitable employment;
(b) the amount per week (if any) that the employee earns from any employment (including self-employment) that is undertaken by the employee during that week.
NWE is the amount of the employee's normal weekly earnings.
As to s 19(2) of the Act, the Respondent was liable to pay to the Applicant ‘in respect of the injury, for each week … during which the [Applicant] is incapacitated, an amount of compensation worked out’. Section 19 of the Act therefore provides that weekly compensation payments can be made if an employee is incapacitated for work, in contrast to s 14 which refers to compensation in respect of an injury if the injury results in incapacity for work or impairment.
The Applicant submitted that the injury of 12 May 2018 ‘continues to cause … pain, swelling and reduced dexterity of [the] left hand, two and half years after sustaining it’[106]. The Applicant particularly referred in submissions[107] to a report by Dr Ballenden dated 3 April 2019[108], where the doctor stated: ‘He is not fit to return to work and should not be doing the role of hook truck driver. … The [Applicant’s] tolerance for work, due to the symptoms in his left wrist specifically is diminished. … I cannot identity an incapacity for work resulting from the original injury as the MRI changes seen have resolved’[109]. Dr Ballenden appears to state, therefore, no incapacity for work resulting from the original injury as at 3 April 2019.
[106] Submissions of the Applicant filed 23 November 2020, page 1.
[107] Submissions of the Applicant filed 23 November 2020, page 1.
[108] Exhibit 1, T50, pages 161-170.
[109] Exhibit 1, T50, page 168.
As referred to above, Dr Marchant as the treating specialist, in medical certificates from 29 May 2018, stated that the Applicant could ‘return to some form of work from’ 29 May 2018, ‘if suitable duties are available’[110]. In the medical certificates by Dr Marchant dated 21 June 2018[111], 13 July 2018[112] and 30 August 2018[113] it was again stated that the Applicant had capacity to return to some form of work from 29 May 2018 if suitable duties were available[114]. On 16 January 2019 Dr Marchant stated, in the referral to the neurologist, Dr Green[115], that the Applicant initially reported pain, swelling and decreased range of movement in the hand and wrist, but it has improved steadily with ongoing treatment with the hand therapist and the Applicant’s hand swelling has ‘certainly improved’[116]. Dr Steadman in the report of 12 November 2019 stated that the Applicant was probably fit to perform normal work duties[117]. Dr Steadman stated that the Applicant on 9 November 2020 did not have any incapacity for work in his opinion[118] and that if the Applicant starts using the hand in normal day-to-day activity it actually helps it keep improving[119]. By 2 May 2019[120] the Applicant, having regard to the medical evidence therefore, which is not contradicted by other medical evidence, was not incapacitated for work in accordance with s 19 of the Act resulting from the injury suffered on 12 May 2018.
[110] Exhibit 1, T6, page 31.
[111] Exhibit 1, T6, page 32.
[112] Exhibit 1, T6, page 33.
[113] Exhibit 1, T6, page 34.
[114] Exhibit 1, T6, pages 32-34.
[115] Exhibit 1, T34, page 120.
[116] Transcript, P-18, lines 21-23.
[117] Exhibit 3; Transcript, P-28, lines 26-33.
[118] Transcript, P-28, lines 43-45.
[119] Transcript, P-29, lines 2-6.
[120] Exhibit 1, T54, page 178.
As to s 16 of the Act, it is not in contention that the Applicant suffered the injury on 12 May 2018 and that the Respondent was liable to pay the cost of medical treatment obtained in relation to the injury, being treatment that was reasonable for the Applicant to obtain in the circumstances. The Applicant in his submissions states: ‘Without any hours of work, or support from work cover, I have been unable to get continued treatment for my workinjury [sic], or meet my basic living needs’[121]. As referred to above, the Applicant was to go to a pain management appointment organised by Dr Marchant after May 2019[122], however, the Applicant’s last attendance with a medical practitioner as to his hand was in July 2019 at the Crestmead Medical Centre[123]. The Applicant stated that he has seen a general practitioner about his left hand in New Zealand[124], with there being no documentary evidence beyond that oral evidence, in that regard. There is no documentary detail or particularisation as to the cost of medical treatment obtained in relation to the injury of 12 May 2018, that has not been compensated by the Respondent after 2 May 2020. On 25 January 2021 submissions were requested from the parties as to particular questions in this regard, referring specifically to paragraphs 13, 14, 67, 68, 74 and 86 in the decision in Comcare v Lofts [2013] FCA 1197; (2013) 217 FCR 220:
[13] The text of s 16 exposes several qualifications about Comcare’s liability. Section 16 operates only on the costs of medical treatment related to the injury that is identified for the purposes of the SRC Act. That medical treatment must be “reasonable for the employee to obtain in the circumstances”. The liability for compensation is identified as being “such amount as Comcare determines is appropriate” to that medical treatment. Use of the phrase “amount of compensation” indicates the provision is directed at compensation by way of specific sums. This is consistent with the use of the word “amount” elsewhere in s 16.
[14] Properly construed, s 16 deals with specific and identifiable amounts of compensation for specific and identifiable medical treatment, in relation to an “injury” as the SRC Act defines that term. The provisions dealing with transport costs descend to a level of particularity which is incompatible with a construction of the whole of this section that allows for some ambit or general claim for medical treatment in relation to an injury. It would not be possible for Comcare to carry out the task s 16 requires — an assessment of the relationship between the injury and the medical treatment, an assessment of reasonableness, and a determination of appropriateness — if there were not specific sums of compensation claimed in relation to particularised medical treatment for a specific injury. …
[67] This construction argument could only assist Ms Lofts’ contentions if there was, in fact, a claim by her for the costs of medical treatment in relation to her dysphagia, which she had made to Comcare under s 54 of the SRC Act. For the reasons set out below, there was no such claim and the Tribunal’s finding that there was such a claim involved a misconstruction and misunderstanding of s 16, and of the “injury”-based approach of the legislative scheme, as explained in Canute.
[68] Accordingly, it is not necessary for the Court to determine the correctness of the scope and operation of s 16(2) for which Ms Lofts contends. …
[74] Neither path of reasoning reveals a correct understanding of the nature and scope of s 16 of the SRC Act. For the reasons earlier expressed, s 16 operates on a claim for specific costs of medical treatment, whether in relation to the past or the future. The specificity is integral to the operation of the provision because of the need for Comcare (or the Tribunal on review) to determine whether the treatment costs are “reasonable” and whether payment is “appropriate”. That determination cannot be made if particular costs are not claimed. …
[86] For the Tribunal to proceed to deal with a claim under s 16 of the SRC Act, when that matter was not part of the reviewable decision expressly or impliedly, takes the Tribunal beyond its jurisdiction, for the reasons set out in Lees.
[121] Submissions of the Applicant filed 23 November 2020, page 2.
[122] Transcript, P-11, lines 18-37.
[123] Transcript, P-12, lines 20-26.
[124] Transcript, P-13, lines 11-14.
The Respondent submitted that the decision in Lofts is not authority for the proposition that the absence of a claim for specific medical treatment takes the application for review beyond jurisdiction with respect to s 16, where following acceptance of a claim under s 14, it was the Respondent’s duty to make determinations from time-to-time as was necessary to confer upon the Applicant the particular benefits to which he was, on the facts as they may be from time-to-time, entitled[125]. The Respondent referred specifically to the decision in Liu v Comcare [2004] AATA 617 at [22] per Downs J (President), Deputy President Handley and Senior Member Allen[126]. The Applicant did not make any submissions contrary to the submissions of the Respondent in this regard[127] and submitted that the Respondent’s submissions as to jurisdiction regarding s 16 were not in contention[128].
[125] Respondent’s Submissions on Jurisdiction dated 22 March 2021, paragraphs 21 and 26.
[126] Respondent’s Submissions on Jurisdiction dated 22 March 2021, paragraph 26 and .
[127] Submissions of the Applicant filed 5 April 2021.
[128] Transcript 12 April 2021.
As to the determination regarding further compensation for medical expenses, the evidence of Dr Steadman was that the Applicant by 9 November 2020 did not require medical treatment[129]. Dr Steadman further stated that it ‘would not have been of any further assistance’ to have gone ‘to the hand therapist twice a week or once a week or once a fortnight … as opposed to … using the hand normally to achieve that last little bit of recovery’[130]. Dr Steadman in the report of 12 November 2019 stated that there were not major differences between the opinion of Dr Marchant and his own opinion: ‘we couldn’t find anything to treat’; and he’d reached the stage where he would be at maximal medical improvement, meaning that we didn’t feel that there was any other care that would assist[131].
[129] Transcript, P-28, lines 43-45.
[130] Transcript, P-32, lines 30-33.
[131] Exhibit 3; Transcript, P-28, lines 26-33.
The question as to compensation for medical expenses in sub-s 16(1) of the Act applies whether or not the injury to the Applicant results in incapacity for work or impairment or not: sub-s 16(2) of the Act. The Applicant suffered an injury, for which the Respondent was liable to pay, in respect of the cost of medical treatment obtained in relation to the injury, compensation of such amount as the Respondent determined was appropriate to that medical treatment. Having regard to the medical evidence referred to above, which is not contradicted, the Applicant from the date of the determination under review was not entitled to further compensation for medical expenses in respect of the costs of reasonable medical treatment obtained in relation to the injury: sub-s 16(1) of the Act. As stated by Dr Steadman, the Applicant does not require any medical treatment[132] for the accepted injury and therefore no reasonable medical expenses are required.
[132] Exhibit 3.
DECISION
The decision under review is affirmed.
I certify that the preceding 47 (forty-seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member Katter
....................[SGD]...........................................
Associate
Dated: 19 April 2021
Date of hearing: 9 November 2020 Date final submissions received: 5 April 2021 Applicant: Appeared in person
Advocate for the Respondent: Ms R. Blake Solicitors for the Respondent: HWL Ebsworth Lawyers
Key Legal Topics
Areas of Law
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Employment Law
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Negligence & Tort
Legal Concepts
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Causation
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Damages
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Duty of Care
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Negligence
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Remedies
0
3
0