Warner and Comcare (Compensation) - [2018] AATA 1403

Warner and Comcare (Compensation) [2018] AATA 1403 (29 May 2018)
Division:GENERAL DIVISION
File Number: 2016/5310
Re:Milton Warner
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Deputy President K Bean
Date:29 May 2018
Place:Adelaide

The decision under review is set aside and in substitution for that decision it is decided that:
(a) The description of the compensable injury suffered by Mr Warner on 18 November 1975 is amended to “aggravation of severe L5‑S1 disc degeneration and osteoarthritis”; and
(b) As at and from 11 February 2016, the effects of Mr Warner’s injury of 18 November 1975 were ongoing and the respondent remained liable to pay compensation pursuant to sections 16, 29 and 136 of the Safety, Rehabilitation and Compensation Act 1988.

...............[Sgd]...........................................
Deputy President K Bean
CATCHWORDS
WORKERS’ COMPENSATION – Where applicant suffered two falls that both resulted in compensable back injuries – Where delegate’s determination was only with respect to the later injury – Where description of the later injury was erroneous – Where the applicant is now of an advanced age – Whether the Tribunal should amend the description of the later injury – Whether the effects of the later injury are continuing – Decision under review set aside and substituted.
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988, ss 16, 29, 136
CASES
Commonwealth v Muratore (1978) 141 CLR 296
Commonwealth v Borg (1991) 20 AAR 299
Commonwealth v Smith (1989) 18 ALD 224
Sadek and Commonwealth (1988) 14 ALD 769
Kavas and Comcare (2011) 130 ALD 104
Martin v Australian Postal Corporation (1999) 29 AAR 420
Darling Island Stevedoring and Lighterage Co Ltd v Hankinson (1967) 117 CLR 19
REASONS FOR DECISION
Deputy President K Bean
29 May 2018

The applicant, Mr Warner, was born in 1922 and has reached the great age of 96. Until 11 February 2016, he was receiving compensation pursuant to the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) for a compensable back injury he sustained in the 1970s. He was receiving compensation for medical expenses, household services and also incapacity payments pursuant to s 136 of the SRC Act.
However, on 11 February 2016, a delegate of the respondent determined that Mr Warner had no present entitlement to compensation under the SRC Act on the basis that the effects of his compensable injury of 18 November 1975 had ceased. That determination was substantively affirmed by a reviewable decision on 25 August 2016,[1] and on 6 October 2016, Mr Warner applied to this Tribunal for review of that decision.
[1] Exhibit R1, T‑documents, T53.
Two hearings were ultimately convened, on 30 November 2017 and 21 February 2018, at which Mr Warner was represented by his son, Mr Jack Warner.
ISSUES
There is no dispute between the parties that the effect of the relevant provisions of the SRC Act is that Mr Warner remains entitled to compensation under ss 16, 29 and 136 of the SRC Act respectively, so long as the effects of his injury of November 1975 are…

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 Warner and Comcare (Compensation)

Details

AGLC: Warner and Comcare (Compensation) [2018] AATA 1403
Case: [2018] AATA 1403
Decision Date: 29 May 2018

CaseChat Overview and Summary

This matter concerned an appeal by Mr. Warner against a determination by a delegate of Comcare regarding his entitlement to workers' compensation. Mr. Warner had suffered two separate back injuries, one in 1974 and another in November 1975, both arising from his employment. The delegate's determination had focused solely on the later injury, and it was contended that the description of this injury was erroneous. The applicant, now of advanced age, sought to have the description of the 1975 injury amended and to establish that its effects were continuing. The decision was made by Deputy K Bean P.

The primary legal issues before the Tribunal were whether the description of the injury sustained by Mr. Warner in November 1975 was accurate and, if not, whether the Tribunal had the power to amend it. Furthermore, the Tribunal was required to determine whether the effects of this 1975 injury were still ongoing as at 11 February 2016, and consequently, whether Comcare remained liable to pay compensation in respect of that injury.

The Tribunal considered evidence from medical experts, including Mr. Phillips and Professor Malcolm Smith. Professor Smith, who had treated Mr. Warner since 1998, opined that Mr. Warner's current age-related degenerative changes were likely additive to his previous lumbar spine injury and possibly more extensive than they would have been otherwise. Both experts indicated that the contemporaneous medical information suggested the description of the 1975 injury as "severe L5-S1 disc and osteoporosis" was likely incorrect. They proposed that the intended description was "aggravation of severe L5-S1 disc degeneration and osteoarthritis." The Tribunal found that it had jurisdiction to amend this description and that it should do so based on the evidence. Regarding the ongoing effects of the 1975 injury, the Tribunal acknowledged the complexity due to the passage of time and the acceptance of liability for the earlier 1974 injury. However, after considering the evidence, the Tribunal concluded that the 1975 injury continued to play a role in Mr. Warner's spinal condition.

The Tribunal set aside the delegate's decision. In substitution, it ordered that the description of the compensable injury suffered by Mr. Warner on 18 November 1975 be amended to "aggravation of severe L5-S1 disc degeneration and osteoarthritis." It was further decided that as at and from 11 February 2016, the effects of Mr. Warner's 1975 injury were ongoing, and Comcare remained liable to pay compensation pursuant to sections 16, 29, and 136 of the SRC Act.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Mr Phillips essentially adhered to this opinion in the course of his oral evidence. He also expressed the opinion that the fact degenerative changes were commented on in the report of the November 1975 X‑ray and not the report of the 1974 X‑ray did not necessarily mean that such changes were not already present in 1974, given the focus at that stage was on the fractured sacrum. He also commented “[y]ou would not expect a great deal in terms of change over a period of one year, whether or not there was an injury”.[26] However he acknowledged that if as at November 1975, Mr Warner already had some arthritic change in the facet joints “it almost certainly would have been aggravated in”[27] the 1975 fall, and that the 1975 fall had continued to play a role in the way that the degenerative process had evolved.[28][26] Transcript, 30 November 2017 55.[27] Ibid 56.[28] Ibid.Evidence of Professor Smith Professor Malcolm Smith has been treating Mr Warner since 1998, and his first report to Comcare is dated 21 January 2000.[29] In a report of 27 April 2006, he noted that Mr Warner’s longstanding right‑sided low back pain “appears to relate to an injury to his back while working for the commonwealth government in the Darwin Power Station many years ago”.[30] [29] Exhibit R1, T18/109.[30] Ibid T25/123. In a report prepared for the purposes of this matter dated 14 February 2017, Professor Smith expressed the opinion that:While it is impossible to be certain about this, given that he did sustain an injury to his back in the 1970s which was investigated and accepted by Comcare, it is likely that his current age related degenerative changes in his lumbar spine are additive to his previous lumbar spine injury and possibly are more extensive than would have otherwise have occurred were it not for the previous back injury.[31][31] Exhibit A1, Report of Professor M Smith dated 14 February 2017. During his oral evidence at the hearing, Professor Smith was asked about the nature of any possible connection between Mr Warner’s injury in 1974 and the current condition of his spine. He stated:he appears to have had some documented injury to his L5‑S1 disc, presumably as a result of that fall at the Darwin Power Station, and that was the accepted disability from the Department of Veterans’ Affairs. From my point of view the question really is, does the injury to his L5‑S1 disc lead to any other problems in his spine, and the answer to that quite clearly is yes, that there is clear evidence in the literature that if you damage a joint or a structure that you will get osteoarthritis at an earlier age than you would normally get it, and it would be more severe at that level, and probably at a level above that level too …[32][32] Transcript, 30 November 2017 35. Professor Smith was also asked about the report of the X‑ray taken on 18 November 1975 which commented on pre‑existing degenerative changes. He said:basically they’re implying that the degenerative changes they saw in the X‑ray on 18 November 1975 were not present on the previous X‑ray in February 1974. They certainly don’t comment on them at that stage, which suggests the degenerative process has occurred over that period of time … It does seem rather quick, however. That’s only a period of, what, 21 months, so that’s fairly quick to develop a degenerative process. But if you believe that report, they certainly haven’t mentioned a disc degeneration in February 1974, but they have mentioned it in 1975. So it suggests that this occurred over that period of time, which again would suggest possibly that the fall contributed in some way to disc degeneration occurring, and then it could have been aggravated by the injury later on.[33][33] Ibid 38.

Decision

Reasons for decision

I have accordingly concluded that I should set aside the decision under review and in substitution for that decision, decide that as at 11 February 2016, the respondent remained liable to pay compensation to Mr Warner under ss 16, 29 and 136 of the SRC Act in respect of the injury of 18 November 1975. As I have pointed out, it is likely in any event that liability is also ongoing in respect of what appears to have been the more serious back injury sustained by Mr Warner in January 1974.DECISION The decision under review is set aside and in substitution for that decision it is decided that:(a)The description of the compensable injury suffered by Mr Warner on 18 November 1975 is amended to “aggravation of severe L5‑S1 disc degeneration and osteoarthritis”; and(b)As at and from 11 February 2016, the effects of Mr Warner’s injury of 18 November 1975 were ongoing and the respondent remained liable to pay compensation pursuant to ss 16, 29 and 136 of the SRC Act.

Ratio Decidendi

Legal Principle Established

Subsequently, the following exchange occurred:If we accept there’s been some age related degenerative change, the ’74 fall and the age related change could well explain how Mr Warner now is?---If there was no fall in 1975 I would agree with you.Is it plausible that whatever the effects were from the 1975 fall, there was some impact for a period, perhaps a few years, but then the degenerative process catches up and takes over and continues its course; is that a plausible position?---That’s plausible, yes.Is it likely?---I think it’s least as likely as the alternative explanation that a fall in 1975 aggravated the process and made it more advanced and more severe than would normally have occurred. They are equally plausible explanations. I can’t give you an honest answer whether had Milton Warner not had a fall in 1975 whether his spine would be a similar state to what it is now. I think it’s equally plausible either way.[40]CONSIDERATION[40] Ibid 47.Description of the 1975 injury As I have already noted, one of the issues which emerged at the hearing was whether the description given by the Commissioner to Mr Warner’s injury was correct. The description initially given was “severe L5‑S1 disc and osteoporosis”. However, both Professor Smith and Mr Phillips indicated this description was unlikely to be correct based on the contemporaneous medical information. They said the report of 13 January 1976 on which this description appeared to be based probably intended to convey something to the effect of “aggravation of severe L5‑S1 disc degeneration and osteoarthritis”. Unfortunately, at the time this issue was discussed at the hearings, neither the parties or the Tribunal realised that the Commissioner’s description of the injury was amended in 1978 to “severe L5‑S1 disc injury”.[41] However, based on the contemporaneous material and the evidence of both Professor Smith and Mr Phillips, I am satisfied that the injury sustained in the November 1975 incident is most accurately described as “aggravation of severe L5‑S1 disc degeneration and osteoarthritis”, and that I have jurisdiction to amend this description and should do so.[41] Exhibit R1, T9/32.Have the effects of the 1975 injury ceased? Partly because of the lengthy history of this matter, this issue has become quite complicated. Unsurprisingly, given the lapse of time, it has become extremely difficult to determine what the precise impacts were of the 1974 and 1975 injuries, and the extent to which either or both of those accidents continue to play some role in the condition of Mr Warner’s spine. The situation has been made more complicated by the fact that prior to and at the hearings, it had not been appreciated that compensation liability had been accepted for the 1974 injury and, so far as I can ascertain, has not subsequently been ceased. Of course, one consequence of this is that, to the extent the 1974 injury continues to play a role in the condition of Mr Warner’s spine, then liability to pay compensation to Mr Warner in respect of that injury also continues (albeit it may be that the description of that injury should also be amended to embrace the impact on Mr Warner’s spine). However, the issue I have been asked to determine is a different and more limited one, namely, whether the subsequent incident of 1975 continues to play a role in Mr Warner’s spinal condition and whether I am satisfied, on balance, that liability to pay compensation to Mr Warner in respect of that injury has ceased.