Yates and Comcare (Compensation) - [2023] AATA 32

Yates and Comcare (Compensation) [2023] AATA 32 (19 January 2023)
Division:GENERAL DIVISION
File Number(s): 2019/7718 & 2020/2574
Re:Yvonne Yates
APPLICANT

AndComcare
RESPONDENT

Decision
Tribunal:Dr I Alexander, Senior Member
Date:19 January 2023
Place:Sydney

The decision under review for AAT no. 2019/7718 is affirmed.
The decision under review for AAT no. 2020/2574 is affirmed.
..................................[SGD]......................................
Dr I Alexander, Senior Member
Catchwords
COMPENSATION – workers compensation – whether Comcare is liable to pay compensation for injuries resulting in permanent impairment pursuant to sections 24 and 27 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) – relevant law, policy and evidence considered – decisions under review affirmed.
Legislation
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Cases
Lees v Comcare [1999] FCA 753
Telstra Corporation Ltd v Hannaford [2006] FCAFC 87
Woodhouse v Comcare (2021) 285 FCR 14
Secondary Materials
Guide to the Assessment of the Degree of Permanent Impairment, Edition 2.1
REASONS FOR DECISION
Dr I Alexander, Senior Member
19 January 2023
INTRODUCTION

On 27 March 2010, Ms Yates (the Applicant), in the course of her employment with the Australian Customs and Border Protection Service, ‘fell going up the stairs’ and, on 7 April 2010, she lodged a claim for worker’s compensation.
On 14 May 2010, under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act), Comcare accepted liability for the following conditions:
(a)Right knee condition: sprain of unspecified site of knee & leg (right) (knee only)
(b)Right shoulder condition: sprain of shoulder & upper arm (right)
(c)Right foot condition: foot sprain (right)
(d)Right ankle condition: ankle sprain (right)
(e)Cervical spine condition: neck sprain (right)
The decision to accept liability was based on medical evidence which consisted entirely of Ms Yates’ self-report of nonspecific ill-defined ‘pain’ in the right shoulder, knee, neck and ankle, with no formal clinical assessments.
On 10 March 2011, Comcare determined that compensation was payable under section 16 of the Act for ‘Psychology – 6 sessions, for pain management only’.
On 19 April 2012, Comcare accepted liability for:
(a)Sciatica of the right leg: sciatica (right)
(b)Psychiatric condition: depressive disorder
On 21 November 2018, Ms Yates lodged a claim for permanent impairment (PI) and non-economic loss (NEL) with respect to ‘Major Depression’.
On 3 April 2019, Ms Yates lodged a claim for PI and NEL with respect to her right and left shoulders, right and left knees, neck and cervical spine, lumbar spine and chronic depressive disorder.
On 6 August 2019, Comcare determined as follows:
(a)The Applicant’s current right knee, cervical spine, left shoulder, left knee and lumbar spine conditions were unrelated to the workplace incident and so liability was denied under sections 24 and 27 of the Act; and
(b)Liability was accepted in respect of the right shoulder condition; however only at 5% PI and therefore liability was not payable as the condition did not meet the required 10% in accordance with paragraph 24(7)(b) of the Act.
On 3 September 2019, Ms Yates…

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 Yates and Comcare (Compensation)

Details

AGLC: Yates and Comcare (Compensation) [2023] AATA 32
Case: [2023] AATA 32
Decision Date: 19 January 2023

CaseChat Overview and Summary

This matter concerned an appeal by Ms Yates against decisions of Comcare, which had denied liability to pay compensation for injuries to her right knee, right shoulder, cervical spine, and lumbar spine, as well as a depressive condition. The dispute centred on whether these conditions constituted permanent impairments for which Comcare was liable under sections 24 and 27 of the *Safety, Rehabilitation and Compensation Act 1988* (Cth). The case was heard by Dr I Alexander, Senior Member.

The legal issues before the Tribunal were whether Ms Yates had suffered permanent impairments to her right knee, right shoulder, cervical spine, and lumbar spine, and a depressive condition, as a result of her employment, and if so, whether Comcare was liable to pay compensation for these impairments. The Tribunal was required to consider the relevant law, policy, and the extensive medical evidence presented.

The Tribunal's reasoning focused on the evidence of Ms Yates' pre-existing spinal conditions, including findings of central canal stenosis, facet joint osteoarthrosis, and early spondylolisthesis, documented in medical reports dating back to 2003 and culminating in surgery in 2007. While Ms Yates described her fall as traumatic and noted widespread soreness afterwards, the Tribunal found that the available medical evidence did not establish that the claimed conditions were a consequence of the fall or that they constituted a permanent impairment for which Comcare was liable under the Act. The Tribunal affirmed the decisions under review, finding Comcare not liable to pay compensation for the claimed conditions as at the respective dates of assessment.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

In response to a question from the Tribunal, about the description of the fall, as recorded by Dr Jacobs in in his report of 24 September 2014, where he noted that she had ‘tripped and fell down steps backwards and landed on her front and hit her back’ Ms Yates stated that ‘I don’t know what I told him but the event of my fall was traumatic. At the time, I didn’t know what I hurt or what I didn’t hurt. It became evident a few weeks after … It was only when went home and I wasn’t moving that I became evident that all my body was sore.’MEDICAL EVIDENCESpine Ms Yates’ Medicare Patient History Report (MPHR) reveals that, in May 2003, she was seen by Professor Cumming who arranged a CT scan of the scan of spine[10]. The details of the consultation and imaging report are not available to the Tribunal.[10] Ibid: Item No.56233. Ms Yates’ MPHR reveals that, in July 2003, she was seen by Dr Johnston who arranged for an MRI of the for ‘Cervical Radiculopathy’[11] and ‘Derangement of shoulder’[12]. [11] Ibid: Item No.63173.[12] Ibid: Item No. 63325. The MPHR also reveals that August 2003 Ms Yates was seen by Dr Sheehy, neurosurgeon, who arranged a CT scan of spine, cervical region.[13] The details of the consultation and imaging report are not available to the Tribunal. [13] Ibid: Item No. 56220. An MRI of the lumbar spine performed on 16 May 2007 is reported as showing ‘Advanced bilateral L4/5 and L5/S1 facet joint osteoarthrosis…’ In a letter dated 17 May 2007 Dr Sheehy, neurosurgeon, stated inter alia the following:Mrs Yvonne Yates has attended the rooms on 16/05/2007 complaining of low back discomfort which radiates into the buttocks, posterior thighs and calves……She is considerably heavier than ideal for her height. Her weight has been increasing recently as she has become more and more inactive because of the pain …Her CT and MRI scans show a central canal stenosis at the L4/5 level due to congenitally short pedicles, facetal arthropathy and ligamentum flavum hypertrophy. She does have the site separation in the facet joints at the L4/5 level and a very early spondylolisthesis. [emphasis added]Management issues here will involve weight loss. She should be managed with a decompression of her lateral recess … If her weight persists at this level, it is likely over the years that she will wear the level further and fusion will be required … While decompression alone is reasonable, weight loss will be important together with increasing physical activity to help protect her spine on the longer term … [emphasis added] In a letter dated 4 June 2007 Dr Sheehy stated that ‘Operative decompression was performed under general anaesthesia on 31/05/2007’. Summonsed Australian Health Care Centre practice records reveal that, from February 2000 to September 2009 nearly all consultation dates are recorded without clinical details apart from ‘Prescriptions printed’. Relevant extracts from January 2010 to January 2020 are as follows:·06/01/2010 – BACK PAIN NOT SLEEPING WELL·22/01/2010 – Diagnostic Imaging requested: CT L/S SPINE – laminectomy 14/5 2007… Medical Certificate.[14] [14] Unfit for work 23-25 January 2010.…·25/01/2010 – L4/5 SPONDYLOLITHESIS ? FROM MANIPULATION RE ADVISED WT REDUCTION SWIM +++…·08/03/2010 – Diagnostic Imaging requested: CT THORACIC SPINE - OSTEOPOROSIS/VERTEBAL NERVE ROOT IMPINGEMENT… ·17/03/2010 – Letter Created – re. Ref Letter – Standard to DR IAN PORTEK.[15][15] Referral letter dated 17 March 2010: … please review … has some chronic lbp, see ct ……·02/07/2010 – REQUEST REDUCTIL[16] oWeight: 97Kg oDISCUSS RE DIET AND EXERCISE ·No consultations until 26 May 2011 – medical check up HAD GOR OA[17] HRT…·10/01/2012 – LOW BACK PAIN HAD LAMINECTOMY 2007… Examination: NO TENDERNESS ROM REDUCED ·30/03/2012 – PROBLEMS 1 OBESITY 2 OA IN CERVICAL AND LUMBAR SPINE … DIGESIC TABLET…[16] REDUCTIL is used together with diet and exercise to treat obesity. [17] Osteoarthritis.

Decision

Reasons for decision

This means that Comcare is not liable to pay compensation under sections 24 and 27 of the SCR Act in respect of the claimed conditions.DECISION The Tribunal finds that, as 6 August 2019, Comcare is not liable to pay compensation pursuant to sections 24 and 27 of the SRC Act in respect of Ms Yates’ right knee, right shoulder, cervical spine, and lumbar spine conditions. The decision under review for AAT no. 2019/7718 is affirmed. The Tribunal finds that, as 12 November 2019, Comcare is not liable to pay compensation pursuant to sections 24 and 27 of the SRC Act in respect of Ms Yates’ depressive condition. The decision under review for AAT no. 2020/2574 is affirmed.

Ratio Decidendi

Legal Principle Established

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