Ware and Comcare (Compensation)

Case [2016] AATA 146

Ware and Comcare (Compensation) [2016] AATA 146 (11 March 2016)

Division

GENERAL DIVISION

File number

2014/2329

John Ware

APPLICANT

And

Comcare

RESPONDENT

DECISION

Tribunal Dr James Popple, Senior Member
Date 11 March 2016
Place Canberra

Comcare’s decision on 7 March 2014 is set aside and, in substitution, the following decision is made:

Comcare is liable, under s 14 of the Safety, Rehabilitation and Compensation Act 1988, to pay compensation in respect of the injury that the applicant sustained when the bus he was driving hit a pothole on 3 April 2012. Under s 7(4) of the Act, the applicant is taken to have sustained that injury on 26 August 2013. Comcare shall pay the applicant’s costs of these proceedings.

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

James Popple, Senior Member

CATCHWORDS

COMPENSATION — Commonwealth employees — claim for ‘injury’ or ‘disease’ — whether employment caused or aggravated the condition — whether employment contributed to a significant degree to Applicant’s condition — date of injury — decision under review set aside and substituted.

COMPENSATION — jurisdiction — scope of claim for compensation — whether jurisdiction to consider claim for aggravation of an injury or an ailment of Applicant’s right shoulder.

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988, ss 5A(1), 5B(1), 5B(3), 7(4), 14, 62, 67(8)

CASES

Abrahams v Comcare (2006) 93 ALD 147

Buttfield and Comcare [2001] AATA 335

Durham and TNT Australia Pty Ltd (2011) 124 ALD 136

Kennedy v Comcare (2014) 63 AAR 100

Lees v Comcare (1999) 56 ALD 84

Mellor v Australian Postal Corporation (2009) 108 ALD 159

Munswamy v Australian Postal Corporation (2015) 67 AAR 16

Szabo v Comcare (2012) 58 AAR 152

Walshe and Comcare [2013] AATA 812

REASONS FOR DECISION

Dr James Popple, Senior Member

11 March 2016

Summary

  1. I set aside Comcare’s decision that it is not liable to compensate the applicant for his right shoulder injury. The applicant was driving a bus, which hit a pothole. Hitting the pothole aggravated a pre-existing condition in his right shoulder. That aggravation is a disease as defined in s 5B(1) of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act). That disease is an injury as defined in s 5A(1)(a). That injury has resulted in impairment: an impingement of the applicant’s right shoulder. Comcare is liable, under s 14, to pay compensation in respect of that injury. The applicant is taken, under s 7(4), to have sustained the injury when he first sought medical treatment for the aggravation: on 26 August 2013.

    Background

  2. Mr John Ware started working for the Australian Capital Territory Internal Omnibus Network (ACTION) in 1986.  He started as a spray painter, and later worked as an auto-electrician and as a bus driver.  From 1999 he was a part-time bus driver.  Since 2003 he has driven buses full time.  He is 54 years old.

  3. On 16 October 2009, Comcare accepted liability for compensation in respect of an injury that Mr Ware suffered to his neck.  On 5 April 2012, Comcare…

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Details
AGLC
Ware and Comcare (Compensation) [2016] AATA 146
Case
[2016] AATA 146
Decision Date

CaseChat Overview and Summary

The case of Ware and Comcare (Compensation) involves the applicant, Mr Ware, who claims compensation for an injury or disease sustained during his employment with the Commonwealth. The dispute centers on whether his employment caused or significantly contributed to his right shoulder condition, and if so, whether Comcare is liable for compensation. The decision under review was Comcare's determination that it is not liable for compensation regarding Mr Ware's right shoulder. The primary issues before the court were whether Mr Ware suffered a disease or injury to his right shoulder that was contributed to by his employment, and if so, the date of the injury. The court had to determine if it had jurisdiction to consider a claim for the aggravation of an injury or ailment of Mr Ware's right shoulder.

The court considered extensive medical evidence and testimony from Mr Ware and several medical practitioners. Mr Ware reported pain in his right shoulder after an incident where he had to grab the steering wheel with more force due to a pothole, which caused his left arm to be less strong. The court accepted Mr Ware's evidence regarding the events leading to the injury, but not all aspects of his medical conditions. The court found that Mr Ware had suffered an injury to his right shoulder arising from his employment, and that his employment contributed to a significant degree to this condition. Consequently, Comcare was found liable to pay compensation under the relevant legislation.

The court's reasoning was grounded in the evidence presented, focusing on the balance of probabilities and the statutory criteria for determining liability. It concluded that Mr Ware's employment did contribute significantly to his right shoulder condition, and thus Comcare was liable for compensation. The decision set aside the previous determination by Comcare and substituted it with a ruling in favor of Mr Ware.

The final orders of the court were that Comcare was liable to pay Mr Ware compensation for the injury to his right shoulder that arose out of, or in the course of, his employment. The specific amount of compensation was to be determined in accordance with the relevant legislation.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Mr Ware also says that he has experienced some pain in his right shoulder ever since the pothole incident. I discuss the long term effects of the pothole incident below.The medical evidence There is a great deal of medical evidence before me. In addition, six medical practitioners gave evidence at the hearing:·Dr Jo Crookes, Mr Ware’s GP;·Dr Sindy Vrancic, the orthopaedic surgeon who performed the ganglion surgery and the left shoulder surgery on Mr Ware;·Dr Anthony Cairns, a consultant orthopaedic surgeon;·Dr Leon Le Leu, an occupational physician;·Dr Virginia Pascall, an occupational physician; and·Dr Geoffrey Stubbs, an orthopaedic surgeon;When did Mr Ware report pain in his right shoulder? Mr Ware saw his GP, Dr Crookes, on 16 April 2012: 13 days after the pothole incident. Her consultation notes mention his left shoulder pain, and that his condition had been “approved” (that is, Comcare had accepted liability for compensation in respect of his left shoulder). Her notes continue: “Recently had bus before Easter with a broken steering dampener and now shoulder has been worse since then”. At the hearing, Dr Crookes confirmed that this was a reference to Mr Ware’s left shoulder. There is no reference in her notes to his right shoulder. On 16 April 2012, Dr Crookes referred Mr Ware to a physiotherapist. The letter of referral said that he had had a “significant flare of his accepted condition of left supraspinatus tendonitis”. There was no mention of Mr Ware’s right shoulder. Dr Crookes says that that was because the physiotherapist was “not allowed to treat a condition that’s not an accepted condition”. Mr Ware says that he would have told Dr Crookes that he had pain in his right shoulder when he saw her on 16 April. At the hearing, Dr Crookes supported that:So, my recollection is from one of our review appointments for his left shoulder during his return to work plan he mentioned that he had some pain in his right shoulder as well when he returned to work. We discussed and both of us were concerned that it might be related to having to rely on that arm more. … But then he presented after an incident where he described the bus hitting a pothole and him having trouble controlling the bus and he had to grab hold of the steering wheel with much more force and he was concerned his left arm wouldn’t be strong enough so most of the force was on his right. He described having some right shoulder pain after that incident. Mr Ware also saw Dr Crookes on 23 and 30 April 2012. Her notes for 23 April refer to Mr Ware’s neck injury; her notes for 30 April refer to his left shoulder pain. There is no reference to his right shoulder. Mr Ware saw Dr Crookes again on 28 May 2012. Her notes for that consultation refer to Mr Ware having returned to work that day, after having been on leave for five weeks following the ganglion surgery. Her notes also mention that both his shoulders and his neck were sore. This is the first record of Mr Ware having reported any pain in his right shoulder.

Decision

Reasons for decision

On 23 March 2015, this matter was listed for hearing on 29 and 30 June 2015. Within the first 10 minutes of the hearing, it emerged that Mr Ware had not been provided with a copy of one of the medical reports prepared for Comcare. With the consent of both parties, I adjourned the hearing until a date to be fixed. On 10 August 2015, the matter was re-listed for hearing on 30 November and 1 December 2015. Unfortunately, those two days proved insufficient for all of the evidence to be given. On 2 December, the matter was listed for a further day’s hearing on 29 February 2016. It is regrettable that (as a result of a document not having been provided before the hearing, and the subsequent restricted availability of witnesses, counsel and the Tribunal) this matter ended up being heard on four days over a period of eight months.Decision under review The decision under review is Comcare’s decision on 7 March 2014 to affirm its determination that Comcare is not liable to pay compensation to the applicant in respect of his right shoulder.Issues The parties disagree about the scope of Mr Wares’ claim and, therefore, the precise nature of the reviewable decision. Subject to that jurisdictional issue, the issues in this review are whether Mr Ware:·suffered a disease—that is, an ailment or an aggravation of an ailment that was contributed to, to a significant degree, by his employment (ss 5A(1)(a) and 5B(1) of the SRC Act);·suffered an injury simpliciter to his right shoulder arising out of, or in the course of, his employment (s 5A(1)(b)); or·suffered an aggravation (arising out of, or in the course of, his employment) of an injury to his right shoulder (s 5A(1)(c)).If one of these three circumstances applies, then Mr Ware has suffered an injury and Comcare is liable, under s 14 of the SRC Act, to pay him compensation. If Mr Ware has suffered an injury, an issue also arises as to the date of that injury.The pothole incident and the events that followed Mr Ware gave evidence about the events that, he says, caused him to suffer an injury to his right shoulder while driving an ACTION bus. Comcare disputes several aspects of his evidence. I generally accept Mr Ware as a witness of truth in relation to these events. As noted below, I do not accept all of his evidence in relation to his medical conditions.[1] Having regard to Mr Ware’s evidence, and some supporting documents, I make the findings set out in [11]–[16] below, on the balance of probabilities.[1] See [20] below. On 3 April 2012, Mr Ware was driving an ACTION bus, carrying passengers, when the bus struck a pothole in the road. (I will call this the pothole incident.) The steering wheel shook causing pain in his left shoulder. He let go with his left hand, holding the steering wheel with his right hand alone. He experienced pain in his right shoulder. The steering wheel ceased shaking as the bus slowed down. The shaking lasted about 10 seconds. He alerted a supervisor at the next interchange, and drove slowly to that interchange where he dropped off his passengers.

Ratio Decidendi

Legal Principle Established

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