Wilkinson and Comcare (Compensation)

Case [2021] AATA 931

Wilkinson and Comcare (Compensation) [2021] AATA 931 (21 April 2021)

Division:                  GENERAL DIVISION

File Numbers:         2018/3635 and 2018/5204

Re:Anthony Wilkinson

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Senior Member C.J. Furnell

Date:21 April 2021

Place:Melbourne

The Tribunal DECIDES;

1.to set aside each of the s 14 decision and the ceased effects decision;

2.in relation to and in substitution for the s 14 decision, the Respondent is liable to pay compensation in accordance with the Act in respect of the injury the subject of Mr Wilkinson’s claim of 20 February 2018;

3.in relation to the ceased effects decision, to remit the matter for reconsideration in accordance with directions that the cost of the 2018 medical treatment be accepted as the cost of medical treatment obtained in relation to the accepted condition and that the 2018 work incapacity be accepted as incapacity for work as a result of the accepted condition; and

4.the costs of the proceedings incurred by Mr Wilkinson shall be paid by the Respondent, such costs to be agreed or, absent agreement, taxed in accordance with the Tribunal’s practice direction on taxation of costs.

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

Senior Member C.J. Furnell

Catchwords

COMPENSATION – firefighter – condition affecting the lumbar region of his back – condition causing incapacity and need for medical treatment – whether that condition encapsulated within accepted condition – approach to construction of compensation claim – incapacity result of continuing effects of accepted condition – causation – operative and effective cause stresses and strains of living – suffer the injury which had been previously determined to have been suffered – question in issue when resile from an acceptance of liability – burden of persuasion – disc prolapse in context of pre-existing spondylosis – disc prolapse a disease or frank injury – distinct from underlying pathology – set aside and substituted decision – set aside and remitted for reconsideration

Legislation

Compensation (Commonwealth Government Employees) Act 1971 (Cth)
Safety, Rehabilitation and Compensation Act 1988 (Cth)

Cases

Abrahams v Comcare [2006] FCA 1829

Australian Postal Corporation v Trevor Arthur Nadge [1994] FCA 1163
Australian Postal Corporation v Oudyn [2003] FCA 318
BOY19 v Minister for Immigration and Border Protection [2019] FCA 574
Canale v Commissioner of Main Roads (1982) 1 WCR (WA) 163
Comcare v Power [2015] FCA 1502
De Gail and Comcare (Compensation) [2018] AATA 2309

Gordon and Comcare (Compensation) [2020] AATA 352
Health Insurance Commission v Van Reesch [1996] FCA 1118
Hook and Comcare (Compensation) [2020] AATA 1792
Hurley and Australian Capital Territory (Compensation) [2019] AATA 2450
Kavas and Comcare [2011] AATA 935

Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 200 CLR 286

Kennedy v Comcare [2014] FCA 82

Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452
Lees v Comcare [1999] FCA 753
Re Liu and Comcare [2004] AATA 617
McDonald v Director-General of Social Security (1984) 1 FCR 354

Military Rehabilitation and Compensation Commission v May [2016] HCA 19

Millar and Comcare (Compensation) [2019] AATA 4973

Mununggurr v Comcare [2020] FCA…

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AGLC
Wilkinson and Comcare (Compensation) [2021] AATA 931
Case
[2021] AATA 931
Decision Date

CaseChat Overview and Summary

This matter came before the Administrative Appeals Tribunal concerning a claim for compensation by Mr Wilkinson against Comcare. The dispute centred on Comcare's decision to affirm a prior determination that it had no liability to pay Mr Wilkinson compensation for medical treatment costs or incapacity for work from 1 April 2011, in respect of a condition previously accepted as an injury. This accepted condition, determined in November 2010, was described as a "lumbar sprain" arising from an incident on 11 May 2010. A subsequent claim in February 2018, for a "back injury...Lower back discs L3 and L4" also linked to the 11 May 2010 incident, had been rejected by Comcare.

The Tribunal was required to determine whether the work incapacity and need for medical treatment experienced by Mr Wilkinson in 2018 were encompassed within the scope of the previously accepted "lumbar sprain" condition. A key legal issue was the approach to the construction of compensation claims, particularly when an employee seeks compensation for a condition that may be distinct from an already accepted injury. The Tribunal also considered the operative and effective cause of the incapacity and treatment, and the burden of persuasion in such matters, especially in the context of a disc prolapse in relation to pre-existing spondylosis, and whether such a prolapse constituted a disease or a frank injury distinct from underlying pathology.

The Tribunal reasoned that the 2018 claim, re-characterising the injury as a disc prolapse, was made in an endeavour to address the risk that the accepted "lumbar sprain" did not encompass the condition for which Mr Wilkinson sought compensation in 2018. Applying the principle that beneficial legislation should be construed broadly, the Tribunal noted that an employee is not necessarily estopped by an earlier determination from alleging they suffered a different condition all along, citing Telstra Corporation v Hannaford. Mr Wilkinson's primary submission was that the 2018 incapacity and treatment were a result of the accepted condition.

The Tribunal set aside Comcare's decision and remitted the matter for reconsideration.

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

On 28 August 2018, the Respondent decided to affirm a determination made on 8 August 2018 to the effect that it then had, as from 1 April 2011, no liability to pay to Mr Wilkinson medical treatment cost compensation under s 16 of the Act, or incapacity for work compensation under s 19 of the Act, in respect of a condition which the Respondent had determined on 19 November 2010 was an injury (the ceased effects decision).[3][3] I note that no issue arose in this proceeding as to the effectiveness of the ceased effects determination in so far as it might have been taken to deny any future liability to pay any relevant compensation for the accepted condition. The condition which the Respondent had determined in November 2010 to be an injury (the accepted condition) was described in the determination as a “lumbar sprain”.[4] That determination was made in response to a claim by Mr Wilkinson dated 4 June 2010 (but apparently not received by the Respondent until early October 2010), for an injury suffered on 11 May 2010, which he described as “muscular strain/stress to lower back” affecting his “lower back”.[5] [4] ExR1; T13.[5] ExR1, T4. The claim of 20 February 2018 with respect to a “back injury…Lower back discs L3 and L4” (the claim which resulted in the s 14 decision) might have been made by Mr Wilkinson as something of a fall-back position. It re-characterised the nature of the injury said to have been suffered as a result of a workplace incident on 11 May 2010 (the incident which resulted in the accepted condition).[6] That re-characterisation might be thought to have been made in an endeavour to address the risk that the accepted condition did not encompass the condition in relation to which Mr Wilkinson obtained the 2018 medical treatment and as a result of which he suffered the 2018 work incapacity. Alternatively, it may be that the 20 February 2018 claim was made simply because Mr Wilkinson had forgotten his successful claim in 2010[7] (albeit that a memory lapse does not explain why review was sought of both the initial determination rejecting the claim and of the decision affirming that determination). Whatever the case, it is clear that the 20 February 2018 claim was for the injury of 11 May 2010,[8] an injury in respect of which there had already been a s 14 determination.[6] As Heerey J said in Telstra Corporation v Hannaford [2006] 151 FCR 253, 11, “If an employee obtained a s. 14 determination for, say, disease X but later claimed increased medical expenses for disease Y, it would be a strange construction of beneficial legislation to conclude that the employee was “estopped” by the original determination from alleging that he really suffered from Y all along”.[7] As he suggested in an email of 16 March 2018 to the Respondent (ExR2, T19).[8] ExA1, [33] – I note that at the hearing of this proceeding counsel for Mr Wilkinson reiterated that he claimed to have suffered one compensable injury. Mr Wilkinson’s primary submission falls within the scope of the review of the ceased effects decision. It is that the 2018 work incapacity was a result of, and the 2018 medical treatment was obtained in relation to, the accepted condition.[9] [9] The Respondent did not contend that it was not reasonable for Mr Wilkinson to have obtained the medical treatment he obtained in 2018.

Ratio Decidendi

Legal Principle Established

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