Yanku and Comcare (Compensation)

Case [2017] AATA 1454

Yanku and Comcare (Compensation) [2017] AATA 1454 (13 September 2017)

Division:GENERAL DIVISION

File Number(s):      2015/0829

Re:Helen Yanku

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Ms S Taglieri, Member

Date:13 September 2017

Place:Hobart

The decision under review is affirmed.

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

Ms S Taglieri, Member

CATCHWORDS

COMPENSATION – Workers’ compensation – Disease – Aggravation of ailment – Liability for previously accepted injury – Whether continuing contribution from employment – Cervical spondylosis – Nociceptive and non-nociceptive contribution – Decision under review affirmed.

LEGISLATION

Safety Rehabilitation and Compensation Act 1988 (Cth) ss 4, 5A, 5B, 14 & 16

CASES

Australian Postal Corporation v Bessey [2001] FCA 266
Australian Telecommunications Commission v Barker [1990] FCA 489
Briginshaw v Briginshaw (1938) 60 CLR 336
Cakir and Comcare [2007] AATA 2015
Commonwealth of Australia v Muratore (1978) 141 CLR 296
Commonwealth of Australia v Beattie (1981) 53 FLR 191
Gallway and Australian Postal Corporation [2015] AATA 259
Isley v Wattyl Australia Pty Ltd [1997] FCA 427
Manns and Comcare [2012] AATA 462
McDonald v Director-General of Social Security [1984] FCA 57
Tippett v Australian Postal Corporation [1998] FCA 335; (1998) 27 AAR 40

Tran and Comcare [2010] AATA 719

REASONS FOR DECISION

Ms S Taglieri, Member

13 September 2017

  1. Ms Helen Yanku is a longstanding employee of the Australian Taxation Office (the ATO).  She made a claim for compensation pursuant to the Safety Rehabilitation and Compensation Act 1988 (Cth) (the Act) in respect of muscular spasms and neck pain.  Her claim form, which was in evidence before the Tribunal, identified the parts of her body affected by the injury claimed to have been suffered at work and included neck, upper back, arms and hands.[1]  The injury was attributed to intensive computer duties over a six day period.

    [1] T4, p 5, T documents.

  2. The Respondent accepted liability for Ms Yanku’s claim for compensation and notified her accordingly by letter of 11 July 2011.[2]

    [2] T7, p 21, T documents.

  3. After mid-2011, Ms Yanku continued to work at the ATO and undertook various Return to Work plans and rehabilitation.  She also received treatment in respect of the injury for which compensation had been accepted.

  4. Between 2011 and 2014, Ms Yanku’s claim was treated as accepted and various payments of compensation were made under the Act.

  5. It was common ground that as a consequence of the injury to the neck and upper limbs Ms Yanku experienced symptoms of depression.  The Respondent had also accepted liability for the consequential depressive symptoms.

  6. On 4 September 2014, the Respondent determined to cease payment of compensation to Ms Yanku in respect of the previously accepted injuries and conditions.  It notified her accordingly in writing and the notice of determination given to her was in evidence before the Tribunal.[3]

    [3] T32, p 159, T documents.

  7. It is evident from the materials received by the Tribunal during the hearing that the reason for the determination to cease payments of compensation was predominantly the opinion received from Dr David Ruttenberg, a…

Continue reading Yanku and Comcare (Compensation)

Sign in free to access the full text

Details
AGLC
Yanku and Comcare (Compensation) [2017] AATA 1454
Case
[2017] AATA 1454
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal by Ms Yanku against a decision by Comcare to cease compensation payments. Comcare contended that the cessation of payments was justified because Ms Yanku no longer suffered from the injuries for which it had initially accepted liability. These injuries were described as temporary aggravations of pre-existing cervical spondylosis and depression. The appeal was heard by Ms S Taglieri, Member.

The central legal issue before the Tribunal was whether Ms Yanku continued to suffer from a compensable injury, specifically an aggravation of her cervical spondylosis, which was still contributing to her incapacity for work. This required the Tribunal to assess the reliability of Ms Yanku's evidence, particularly in light of her failure to disclose a prior neck injury sustained in a 1991 motor vehicle accident to treating and examining doctors. The Tribunal also had to consider the expert medical evidence presented by both parties regarding the nature and ongoing impact of Ms Yanku's conditions.

The Tribunal's reasoning focused heavily on the undisclosed prior injury. It found that Ms Yanku had suffered a significant whiplash injury to her neck in the 1991 motor vehicle accident, involving the C6/7 region of her spine, which persisted for at least three years. Despite her oral evidence that she had fully recovered by 1994, the Tribunal considered this statement to be unreliable, especially when contrasted with medical reports, including one from Dr Chilcott in 2005, which noted a history of whiplash and ongoing neck pain. The Tribunal applied the principle that a failure to disclose material facts, particularly a significant prior injury, could undermine the credibility of a claimant's evidence regarding the cause and persistence of their current symptoms. The Tribunal ultimately affirmed the decision to cease payments.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

In response, the Respondent contended that the decision to cease payments of compensation was correct as the Applicant no longer suffered from the injuries it had initially accepted liability for. Its case was that the compensable injuries were diseases, namely temporary aggravations of pre-existing cervical spondylosis and pre-existing depression. RELEVANT EVIDENCE BEFORE THE TRIBUNAL In addition to the evidence contained in the T documents, each of the parties adduced expert opinion and lay evidence. The Tribunal received a written statement of evidence from Ms Yanku.[5] Ms Yanku gave oral evidence before the Tribunal and was cross-examined. The reliability of Ms Yanku’s evidence became a critical factor influencing the determination to be made by the Tribunal, as the Respondent contended that her evidence was unreliable. It argued that Ms Yanku had failed to disclose to any of the examining doctors who saw her in respect of her claim the fact that she had experienced a prior injury to her neck in a motor vehicle accident in 1991.[5] Exhibit A2. A report of Dr Frederick Binns dated 28 June 1993 conveys that there were significant forces at play in the accident and that Ms Yanku suffered a significant whiplash injury to her neck as a result.[6] Important to the findings that follow, this injury involved the C6/7 of the spine.[7][6] Exhibit R8. [7] Exhibit R8, p 2 at [3]. The Respondent tendered into evidence various documents from the Motor Accidents Insurance Board obtained under subpoena. Those documents, including the report of Dr Binns referred to earlier, clearly demonstrate that Ms Yanku suffered significantly from the accident and was experiencing a degree of incapacity for work. Her symptoms involved the neck and upper limbs and persisted for a period of at least three years after the motor vehicle accident, even on Ms Yanku’s own evidence. Ms Yanku gave evidence about the motor vehicle accident and a description of the mechanism involved in the accident. In oral evidence, she stated that she had fully recovered from the symptoms caused by the 1991 motor vehicle accident after she received a settlement of a damages claim from the Motor Accidents Insurance Board in 1994. A consultant occupational physician, Dr James Rowe, was called by Ms Yanku. The Respondent called a consultant occupational physician, Dr David Ruttenberg. Two psychiatrists were called by the parties: Dr Albert Kaplan by Ms Yanku and Dr Ian Sale by the Respondent. Oral evidence was received by the Tribunal from all expert witnesses and their reports were received into evidence.[8][8] Exhibits A3 (Report of Dr Rowe, 9 August 2014), A4 (Report of Dr Rowe, 10 August 2016), A5 (Report of Dr Kaplan, 20 May 2015), A6 (Report of Dr Kaplan, 10 April 2017), R19 (Report of Dr Ruttenberg, 23 December 2015) & R20 (Report of Dr Sale, 24 November 2015). The Respondent also tendered into evidence historical medical records relating to Ms Yanku. Of particular relevance is a report of Dr Anna Chilcott dated 8 February 2005.[9] The report of Dr Chilcott documented that Ms Yanku had ‘a very stressful time recently at work and as a result has problems currently with neck/left shoulder and lumbosacral pain/muscle spasms’ and further stated that ‘she has a history of MVA resulting in whiplash about ten years ago. She also has some residual aches and pains from a fall before Christmas last year.’[9] Exhibit R11.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.