Wirth and Comcare (Compensation) - [2020] AATA 29

Wirth and Comcare (Compensation) [2020] AATA 29 (14 January 2020)
Division:GENERAL DIVISION
File Numbers: 2016/5274 and 2018/7300
Re:NATALIE WIRTH
APPLICANT

AndCOMCARE
RESPONDENT

DECISION
Tribunal:R CAMERON SENIOR MEMBER
Date:14 January 2020
Place:Melbourne

The Tribunal sets aside the decision in relation to application 2016/5274, and in substitution orders:
1. The Applicant has continued to suffer from 10 June 2016 to the present date, from the effects of the injury identified as:
(a) Subacute avulsion fracture of the great cubicle of the proximal humerus right side;
(b) Severe rotator cuff pathology right side with tears of the supraspinatus muscle, biceps tendinosis and superior labral tear and signs of glenohumeral osteoarthritis responsible for pain and movements restriction in the right shoulder joint:
i.sustained on 20 November 2009, arising out of her former employment with the Bureau of Meteorology, resulting in a need for medical treatment pursuant to section 16 of the Safety, Rehabilitation and Compensation Act 1988.

2. In application 2016/5274, the Respondent shall pay the Applicant’s costs and disbursements in respect of the proceedings pursuant to section 67 of the SRC Act.
The Tribunal extends the time in which the Applicant may request reconsideration of the decision in relation to application 2018/7300 to 10 October 2018.
The Tribunal affirms the decision in relation to application 2018/7300.
........................[sgd]................................................
R CAMERON SENIOR MEMBER
Catchwords
COMPENSATION – injuries to shoulder and knee – whether arising out of or in the course of employment – evidence of pre-existing degenerative change – subsequent incidents that affected the injury – impact of age and weight on conditions – whether conditions still related to employment – first reviewable decision set aside – second reviewable decision affirmed
Legislation
Administrative Appeals Tribunal Act 1975
Safety, Rehabilitation and Compensation Act 1988
Cases
Briginshaw v Briginshaw (1938) CLR 336
Comcare v Porter (1996) 70 FCR 139
Griffiths v Australian Postal Corporation (2018) 158 ALD 298
Secondary Materials
Peter Sutherland, John Oman Ballard and Allan Anforth, Annotated Safety, Rehabilitation and Compensation Act 1988 (Federation Press, 11^th ed, 2018)
REASONS FOR DECISION
R CAMERON SENIOR MEMBER
14 January 2020
INTRODUCTION

There are two applications before the Tribunal.
The first application (2016/5274) seeks a review of a decision made by a Review Officer of Comcare (“the Respondent”) on 18 August 2016 affirming a previous decision denying the Applicant medical expenses under section 16 of the Safety, Rehabilitation and Compensation Act1988 (“SRC Act”) for an injury described as rotator cuff strain (right) and sprain of the shoulder and upper arm (“the first reviewable decision”).[1]
[1] The first reviewable decision is document T 55 of the T documents (Exhibit R-1).
The second application (2018/7300) seeks review of a decision made by a Review Officer of the Respondent on 12 October 2018 affirming a previous decision refusing an extension of time to lodge a request for reconsideration of a previous determination made that the Respondent was not liable for a total left knee replacement under section 16 of the SRC…

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 Wirth and Comcare (Compensation)

Details

AGLC: Wirth and Comcare (Compensation) [2020] AATA 29
Case: [2020] AATA 29
Decision Date: 14 January 2020

CaseChat Overview and Summary

This matter concerned two applications before the Administrative Appeals Tribunal. The first application, 2016/5274, sought review of a decision concerning the Applicant's right shoulder injury. The second application, 2018/7300, sought review of a decision affirming a refusal to extend time for reconsideration of a determination that Comcare was not liable for a left knee replacement. The Applicant contended that both her right shoulder and left knee injuries arose out of or in the course of her employment as an administrative service officer with the Bureau of Meteorology.

The Tribunal was required to determine whether the Applicant's right shoulder injury sustained on 20 November 2009 occurred in the course of her employment. It also needed to consider the impact of pre-existing degenerative changes, age, and weight on the Applicant's left knee condition, and whether this condition remained related to her employment, particularly in light of a medical opinion suggesting it was constitutional.

The Tribunal accepted the Applicant's evidence regarding the 20 November 2009 incident, finding her to be a reliable witness whose account was consistent with contemporaneous documents. The Tribunal noted that the employer's contention that the Applicant was not required to deliver mail on that day was not supported by viva voce evidence from her supervisor, and inferred that such evidence would not have assisted the Respondent. Consequently, the Tribunal found that the Applicant's right shoulder injury arose in the course of her employment, acknowledging pre-existing degenerative changes consistent with her age. Regarding the left knee, the Tribunal considered a medical opinion that attributed the condition to constitutional, age, and weight-related factors, and not work-related aggravation.

In application 2016/5274, the first reviewable decision was set aside, and it was ordered that the Applicant suffered from her right shoulder injury sustained on 20 November 2009, arising out of her employment, requiring medical treatment under section 16 of the SRC Act. The Respondent was ordered to pay the Applicant's costs. In application 2018/7300, the time for the Applicant to request reconsideration of the second reviewable decision was extended to 10 October 2018, and the second reviewable decision was affirmed.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The second application (2018/7300) seeks review of a decision made by a Review Officer of the Respondent on 12 October 2018 affirming a previous decision refusing an extension of time to lodge a request for reconsideration of a previous determination made that the Respondent was not liable for a total left knee replacement under section 16 of the SRC Act (“the second reviewable decision”). [2][2] The second reviewable decision is document ST 40 of the ST documents (Exhibit R-2).SOME RELEVANT FACTS At all times relevant to these applications, the Applicant was employed as an administrative service officer by the Bureau of Meteorology, having been employed there since February 2002. She was retrenched in 2013. In her evidence she stated that she performed “payroll duties” and was primarily involved in data processing and keyboarding working approximately 37 hours per week. There are two incidents concerned which the Applicant contends gave rise to the injuries to her right shoulder and left knee which are the subject of these applications.The November 2009 Incident The first incident occurred on 20 November 2009. The Applicant sustained an injury to her right shoulder upon exiting a lift situated in the Bureau of Meteorology at Level 5, 700 Collins Street, Melbourne. The Applicant’s evidence was that Level 5 was the street level of the building housing the Bureau of Meteorology. She worked on Level 7. It was the end of the working day (she estimated that the event occurred at approximately 3.58 PM) on a Friday, and she had done all of her work for the day. She was carrying a big envelope containing pay slips which had to be dispatched to Tasmania. Her version of this was challenged to some extent in cross examination. It was put to her in cross examination that the Bureau of Meteorology had advised the Respondent that as far as it was aware, there was no reason for the Applicant to be delivering documents on level 5. Largely, the foundation for this cross examination reflected the contents of a letter found in the T documents from the Compensation and Rehabilitation Officer of the Bureau of Meteorology to Comcare, dated 2 December 2009.[3] That letter stated that the Applicant's direct supervisor at the Bureau of Meteorology had advised the officer that the Applicant had not been allocated duties that would require her to take mail down to the Registry/Mail Centre on Level 5. In support of this contention the author of the letter referred to the fact that the Bureau of Meteorology had an internal mail pickup and delivery service. Another factor raised in that letter was that the Applicant “signed off on her Flex Sheet at 4 PM on Friday 20 November [2009]” which was a normal sign off time. This was put to the Applicant and she denied the assertions. It should be noted that the supervisor was not called to give evidence. No explanation was given as to why the supervisor did not give evidence. Given the failure to call the supervisor on this question, the Tribunal infers that her evidence would not have assisted the Respondent. [3] Document T 7 of the T documents.

Evidence

Evidence Before The Court

Another approach adopted by the Respondent was to produce, and put to the Applicant, a number of documents, that had been produced upon summons, which showed a history of difficulties with her knees including the left knee.[17] She was carefully, searchingly and properly, cross examined on these matters. These documents revealed a medical history concerning both knees from at least 2004. More will be said about this fact in these reasons shortly.[17] These documents were conveniently bound together in an indexed and paginated bundle. It will be hereinafter referred to as: “the Respondent’s tender bundle.”The shoulder injury inconsistencies in the evidence After falling and injuring her shoulder as described previously, the Applicant consulted the physiotherapist Andrew Seymour of Physica Spinal and Physiotherapy Clinic. A bundle of documents was tendered in evidence that had been created by Mr Seymour.[18] They included clinical notes concerning a diagnosis of the Applicant dated 23 November 2009, being her date of admission. The diagnosis notes record that she fell onto her elbow on a Saturday, twisting on her ankle and experiencing pain in her shoulder. She was asked in cross examination why Mr Seymour would have recorded the fall being on a Saturday. She could not explain this discrepancy other than to say that she was not working on the Saturday and that Mr Seymour had recorded that part of the history she gave him incorrectly. She repeated that the injury or incident had occurred on the Friday which was a working day. The Tribunal accepts the Applicant’s evidence on this matter.[18] Exhibit "R-5". Another discrepancy highlighted by the Respondent in cross examination arose from an examination of clinical notes of 22 November 2009, prepared by a medical officer of the Emergency Department at Maroondah Hospital.[19] Those notes record a fall occurring “3/7 days ago”. The Applicant was asked if that was a history that she had given the hospital; she stated that it must have been. She further stated that she did not know what “3/7” actually meant. However, when searchingly probed, she stated she was certain whatever appeared on the records of the hospital (or for that matter in the physiotherapist’s clinical notes referred to previously in these reasons), the incident occurred on the previous Friday. This response was consistent with another page of clinical notes from Maroondah Hospital that were in evidence and contained an entry that the Applicant “Had a mechanical fall on Friday-landed on R elbow”.[20] She stated that she had no idea why there was a divergence between the physiotherapist’s notes and one of the hospital’s clinical notes concerning the date of the fall. The Tribunal accepts the Applicant’s evidence on this matter particularly in the light of the other hospital clinical notes containing an entry consistent with her evidence on the date of the fall.[19] The relevant page of the clinical notes were in evidence as exhibit "R-6".[20] This note is to be found on page 9 of the Respondent's tender bundle.

Decision

Reasons for decision

The second reviewable decision is affirmed.CONCLUSION In application 2016/5274 the first reviewable decision is set aside. In substitution therefore, the orders following are made: The Applicant has continued to suffer from 10 June 2016 to the present date and at the present date, from the effects of the injury identified as:(a)Subacute avulsion fracture of the great cubicle of the proximal humerus right side;(b)Severe rotator cuff pathology right side with tears of the supraspinatus, infraspinatus subscapularis tendons, fatty atrophy of the supraspinatus muscle, biceps tendinosis and superior labral tear and signs of glenohumeral osteoarthritis responsible for pain and movements restriction in the right shoulder joint.(i)Sustained on 20 November 2009, arising out of her former employment with the Bureau of Meteorology, resulting in a need for medical treatment pursuant to section 16 of the SRC Act. In application 2016/5274, the Respondent shall pay the Applicant’s costs and disbursements in respect of the proceedings pursuant to section 67 of the SRC Act. In application 2018/7300 the time within which the Applicant may request reconsideration of the second reviewable decision is extended to 10 October 2018. The second reviewable decision is affirmed.

Ratio Decidendi

Legal Principle Established

Dr Khursandi also concluded that the condition then suffered by the Applicant in the left knee was constitutional, age and weight related. He therefore stated he was not able to attribute her current condition to work-related aggravation which had previously been accepted by Comcare three years earlier.CONSIDERATIONThe 20 November 2009 incident and the Applicant’s right shoulder The Respondent contended that the right shoulder injury did not occur in the course of the Applicant’s employment.[55] In a consideration of findings to be made concerning this incident the Tribunal refers to and repeats the general observations on the Applicant’s demeanour and her evidence referred to above. [55] In the application no 2016/5274 concerning the Applicant’s right shoulder the first issue for determination by the Tribunal identified in her counsel's Outline of Closing Address was: "Whether the injury to the right shoulder sustained on 20 November 2009 occurred in the course of the BOM employment." The Tribunal accepts the Applicant’s account of the events that occurred on 20 November 2009 when she fell over upon leaving the lift at the Bureau of Meteorology offices. It does so for several reasons. Firstly, as observed above, the Tribunal found the Applicant to be overall a reliable witness. It is readily conceded that at times her recollection was not as precise as one might have imagined. However, she did not generally give an inconsistent account concerning those events. Secondly, it must be repeated that her account in the witness box largely accorded with the contents of the contemporaneous documents referred to earlier in these reasons. Thirdly, also as noted above, her account of her duties on that day, although tackled in cross examination and disputed in the contents of the letter of 2 December 2009 from the Compensation and Rehabilitation Officer of the Bureau of Meteorology, was not disputed by any other viva voce evidence. As noted above in these reasons, reference was made in that letter to the advice given by the Applicant’s direct supervisor at the time. The direct supervisor did not give evidence at the hearing, and no explanation was given to the Tribunal for this failure to call her. One would have expected her to have been called if there was a genuine dispute about whether or not the Applicant did deliver the envelope to the Registry/Mail Centre on Level 5 (or whether she had been allocated such duties on that day) and whether there was also an internal mail pickup and delivery service functioning on the day of the incident. Fourthly, some allowance must be made for the fact that the incident concerned occurred approximately 10 years ago. With the passage of that much time recollections will become less accurate. Given these findings about the 20 November 2009 incident, the Tribunal finds that the right shoulder injury suffered on that day by the Applicant arose in the course of her employment. Both parties to the application agree that there were pre-existing degenerative changes in the right shoulder to the Applicant’s rotator cuff. Both agree that they were, more likely than not, degenerative changes consistent with her age.