Zivanovic and Comcare (Compensation) - [2020] AATA 343

Zivanovic and Comcare (Compensation) [2020] AATA 343 (27 February 2020)
Division:GENERAL DIVISION
File Numbers: 2016/4553
2017/7357
2017/7356

Re:Vladimir Zivanovic
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Dr Stewart Fenwick, Senior Member
Date:27 February 2020
Place:Melbourne

The Tribunal:
(a)In application 2016/4553:
(i)Sets aside the reviewable decision and remits the matter for reconsideration of entitlements under the Safety, Rehabilitation and Compensation Act 1988 with the direction that:
A.the Applicant continues to suffer from an aggravation of pre-existing patellofemoral dysplasia in his left knee;
B.the Applicant’s condition of secondary hypertension was not contributed to, to a significant degree, by his employment;
(ii)costs in this application reserved.

(b)Affirms the decisions in applications 2017/7356 and 2017/7357.

....[sgd]....................................................................
Dr Stewart Fenwick, Senior Member
Catchwords
COMPENSATION — degenerative osteoarthritis in both knees and lumbar spine – hypertension – prior acceptance of aggravation of underlying left knee condition – prior acceptance of liability for right total knee replacement – whether conditions caused by altered gait and/or medical treatment – whether conditions contributed to, to a significant degree, by employment – impact of age and weight on conditions – first decision set aside and remitted – second and third decisions affirmed
Legislation
Administrative Appeals Tribunal Act 1975
Safety, Rehabilitation and Compensation Act 1988
Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007
Cases
Brackenreg v Comcare (2010) 187 FCR 209
Comcare v Power (2015) 238 FCR 187
Comcare v Sahu-Kahn (2007) 156 FCR 536
Commonwealth v Borg [1991] FCA 710
Prain and Comcare (Compensation) [2016] AATA 459
REASONS FOR DECISION
Dr Stewart Fenwick, Senior Member
27 February 2020
BACKGROUND

Mr Zivanovic applied on 26 August 2016 (the 2016 application) for review of a decision of a Review Officer of Comcare dated 27 June 2016, affirming an earlier determination, dated 11 April 2016, that Comcare had no present liability for medical expenses, incapacity payments, and household services and attendant care in relation to an accepted claim for aggravation of a left knee condition and secondary hypertension (the no present liability decision).[1]
[1] Tribunal file number 2016/4553.
In related applications dated 13 December 2017 (the 2017 applications), Mr Zivanovic sought review of the following decisions affirming determinations by Comcare in which liability was declined:
(a)On 8 December 2017, a Review Officer of Comcare affirmed a determination dated 9 October 2017 to decline liability for medications related to hypertension and cholesterol management;[2] and
(b)On 8 December 2017, a Review Officer of Comcare affirmed a determination dated 6 October 2017 to decline liability for a lumbar spine condition and a total right knee replacement.[3]
These conditions were the subject of claims lodged on Mr Zivanovic’s behalf by his legal representatives in the course of the 2016 application.
[2] Tribunal file number 2017/7356.
[3] Tribunal file number 2017/7357.
Mr Zivanovic suffered an injury to his left knee on 3 August 1990 while riding a tram in the course of his employment as a clerk in a Commonwealth agency. Mr Zivanovic is currently 63 years old and according to medical opinion,…

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 Zivanovic and Comcare (Compensation)

Details

AGLC: Zivanovic and Comcare (Compensation) [2020] AATA 343
Case: [2020] AATA 343
Decision Date: 27 February 2020

CaseChat Overview and Summary

This matter concerned an application by Mr Zivanovic for review of decisions by Comcare to decline liability for medical expenses, incapacity payments, and household services. The dispute centred on whether Mr Zivanovic's degenerative osteoarthritis in both knees and lumbar spine, as well as hypertension, were caused or contributed to by his employment. The Senior Member of the Tribunal was required to determine the extent to which these conditions were a result of the original left knee injury sustained in 1990, altered gait, medical treatment, or other factors such as age and obesity.

The legal issues before the Tribunal were whether the degenerative conditions of Mr Zivanovic's lumbar spine and right knee were caused by his employment, either directly or indirectly through altered gait and medical treatment following his accepted left knee injury. The Tribunal also had to consider the impact of non-employment related factors, specifically Mr Zivanovic's age and morbid obesity, on the development and progression of these conditions. Crucially, the Tribunal needed to apply the correct causal test, which required satisfaction that an employment-related factor contributed to the conditions to a "significant degree," defined as substantially more than material.

The Tribunal reasoned that it needed to be positively satisfied that the original injury caused or contributed to the conditions for which compensation was sought, and that the fact compensation had previously been paid did not alter this requirement. The Senior Member noted that the test for contribution had been strengthened to require a "significant degree," meaning substantially more than material, and that this needed to be assessed in light of all relevant factors, including those specified in section 5B(2) of the Act. The Tribunal considered medical evidence suggesting that morbid obesity was a primary cause of the lumbar spine condition and that this was biochemically influenced, not solely due to physical forces. The Tribunal also noted that Mr Zivanovic's right knee replacement was accepted as due to altered load bearing from the principal left knee injury, and that subsequent back pain was attributed to changes in load bearing post-operation.

The Tribunal set aside the first decision and remitted it for reconsideration, while affirming the second and third decisions. This outcome indicates that the Tribunal found the initial assessment of liability for some conditions to be flawed, necessitating a fresh determination, but upheld Comcare's decisions regarding other conditions.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Mr Kelman states in his supplementary report of June 2018 that Mr Zivanovic’s morbid obesity is the primary cause of degenerative osteoarthritis in the lumbar spine (Exhibit R2, p 3). This condition is not related to that of his left or right knee. He states further that, as with his opinion in relation to Mr Zivanovic’s right knee, the cause is not related to the condition of a distant joint (Exhibit R2, p 4).EVIDENCE AT HEARINGMr Zivanovic Mr Zivanovic stated that prior to the accident he was a ‘fit healthy young chap’ who enjoyed fishing, camping and hunting. He can no longer do these things. He stated his left knee is now unstable, swollen, puffy and sore. Mr Zivanovic gave evidence that he can now only walk between 50–100 metres at a time, not upstairs and not over rocks. After two-to-three laps of the corridor at home he has to lie down. His left knee is the main problem and it spasms at night for between 5–10 minutes or hours if he cannot find the right position. He further stated that it pops out of joint, clicks and is unstable. Because of the pain Mr Zivanovic stated he needs to take painkillers to fall asleep. He uses walking aids, being a stick (for the past 10 years) and frame (for the past three years). The frame has a seat built in and is used if he needs to sit if he walks for any distance. Mr Zivanovic stated that he used to help his wife with cooking and cleaning but he can no longer do so. He has had the rear of his house paved and his neighbour mows the front. During the day he spends time lying on the bed and ‘very rarely’ goes out. He listed the medications taken on a daily basis which include panadeine forte between four and five times per day. He attends the GP every 3–4 weeks. In relation to the incident on the tram Mr Zivanovic stated that the tram took off suddenly and he fell onto his left knee and was pulled onto his right knee. In cross-examination he acknowledged that in the initial injury report (T3, pp 7–14) there is no reference to an injury to the right knee, and that it states he twisted the left knee. Mr Zivanovic stated no mention was made of his right knee because he suffered no problem with it at the time. After leaving government employment two years after the injury Mr Zivanovic was employed by a friend in a pet supply business. This lasted between 2000 and 2010 and he has not worked since leaving that job. He experienced some knee swelling, but there were no limitations to the number of breaks he could take. In re-examination Mr Zivanovic explained that his job involved some walking, bending and sitting. Mr Zivanovic stated that problems started with his right knee four years after the left knee injury, due to changed load bearing on the right side. The pain in his right knee was ‘excruciating’. The right knee replacement resolved the pain and it is ‘fine now’. Following this operation Mr Zivanovic experienced severe pain across the back, buttocks and into his calf. He stated that this was because load bearing was different following the operation.

Decision

Reasons for decision

Mr Zivanovic applied on 26 August 2016 (the 2016 application) for review of a decision of a Review Officer of Comcare dated 27 June 2016, affirming an earlier determination, dated 11 April 2016, that Comcare had no present liability for medical expenses, incapacity payments, and household services and attendant care in relation to an accepted claim for aggravation of a left knee condition and secondary hypertension (the no present liability decision).[1] [1] Tribunal file number 2016/4553. In related applications dated 13 December 2017 (the 2017 applications), Mr Zivanovic sought review of the following decisions affirming determinations by Comcare in which liability was declined:(a)On 8 December 2017, a Review Officer of Comcare affirmed a determination dated 9 October 2017 to decline liability for medications related to hypertension and cholesterol management;[2] and (b)On 8 December 2017, a Review Officer of Comcare affirmed a determination dated 6 October 2017 to decline liability for a lumbar spine condition and a total right knee replacement.[3] These conditions were the subject of claims lodged on Mr Zivanovic’s behalf by his legal representatives in the course of the 2016 application. [2] Tribunal file number 2017/7356.[3] Tribunal file number 2017/7357. Mr Zivanovic suffered an injury to his left knee on 3 August 1990 while riding a tram in the course of his employment as a clerk in a Commonwealth agency. Mr Zivanovic is currently 63 years old and according to medical opinion, in addition to his conditions, he is considered to be morbidly obese. He was 34 at the time of the injury. The original accepted claim, dated 31 July 1997, was for aggravation of a pre-existing patellofemoral dysplasia of the left knee (a developmental or congenital abnormality) and secondary hypertension. A procedure was conducted on his left knee following the 1990 injury, and a number of further similar procedures were performed in later years. Liability for a permanent impairment of the left knee was accepted on 31 March 2005. In 2014 Mr Zivanovic underwent a total knee replacement of the right knee which was accepted by Comcare, at the time of the determination dated 24 October 2014, as being due to the additional load arising from the principal injury.[4] Comcare also accepted liability on 24 October 2014 for secondary hypertension on the basis of a medical opinion that this condition was related to changes in his mobility.[4] Letter of Mr Lynch dated 16 September 2014; ST28, Supplementary T-Documents, p 143. As noted above, the related review applications include a claim for the cost of medications. These were purchased after the no present liability decision was made in relation to the 2016 application. Mr Zivanovic had sought to have his back and right knee conditions accepted as secondary conditions to the original claim. The conditions of the knees and back result from degenerative change and the question that arises to be answered by this review, essentially, is whether they should be understood as resulting from the original injury.

Ratio Decidendi

Legal Principle Established

I asked Dr McGrath to clarify the relationship between osteoarthritis and obesity. He stated that there are risk factors relating to glucose in the body and the production of cartilage. It is not just a matter of physical forces, but also the biochemistry involved. CONSIDERATIONS Given the claims history and the evidentiary issues, it is helpful to state some key propositions that I take from the authorities. I consider that I need to be persuaded that the circumstances giving rise to entitlement under the Act exist (Commonwealth v Borg [1991] FCA 710, [16]). There is no onus of proof as such (Comcare v Power (2015) 238 FCR 187, 197 [57]–[58]), but I need to be positively satisfied that the original injury caused or contributed to the conditions for which treatment is sought, or expense incurred (Brackenreg v Comcare (2010) 187 FCR 209, 223 [62]–[64]). The fact that compensation has already been paid does not change this approach. As will be seen below, the nature of the contribution made to Mr Zivanovic’s conditions by different factors is a critical concern in this matter. Accordingly it is necessary to briefly refer to the authorities relating to the relevant causal tests. I accept that the change to the degree of contribution required for a disease to qualify as an injury under the Act strengthened the causal relationship with employment. The new test of contribution ‘to a significant degree’ is defined with reference to language used in the previous test, which was contribution to a ‘material degree’. That is, significant degree is defined as ‘substantially more than material’. This definition invites consideration of ‘material’ and this was undertaken by Finn J in Comcare v Sahu-Kahn (2007) 156 FCR 536. His Honour found that the word must be interpreted in the context of the relevant factors, and that whether the threshold is met is a matter of fact and degree (at 542–3 [16]). His Honour also discussed dictionary definitions, which include the word ‘substantial’ (at 542 [15]); the very qualifying word chosen when the test was amended. What I take, then, from the introduction of the new causal test is recognition that there must be something more than a mere causal relationship between a factor and a condition. The addition of the word ‘significant’ reinforces this, emphasising that any contribution of an employment related factor must be substantial. Furthermore, the test needs to be applied in the context of at least those factors specified in s 5B(2) of the Act. Adapting the reasoning of the Tribunal in Prain and Comcare (Compensation) [2016] AATA 459 at [70], where there are a range of significant factors, the inquiry might take the form: ‘is an employment related factor a significant contributor to the condition’? I accept that, under the Act, Mr Zivanovic’s conditions are all to be understood as ‘diseases’. Given the years spanned by the conditions, and the medical evidence, it is necessary to determine, where possible, when the conditions arose. This is because there are two different causal tests that might apply. Left Knee