Atkinson and Comcare (Compensation)

[2016] AATA 804

Atkinson and Comcare (Compensation) [2016] AATA 804 (13 October 2016)

Division	GENERAL DIVISION
File number	2015/3393
Glenn Atkinson
APPLICANT
And	Comcare
RESPONDENT

DECISION

Tribunal	Dr James Popple, Senior Member
Date	13 October 2016
Place	Canberra

Comcare’s decision on 15 May 2015 is affirmed.

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

James Popple, Senior Member

CATCHWORDS

COMPENSATION — liability previously accepted for upper limb injuries — determination ceasing liability to pay compensation for incapacity and medical treatment expenses — whether Applicant continued to suffer from the effects of his accepted injuries on and after date of determination — surveillance material shows Applicant undertaking some activities that are inconsistent with him suffering from his accepted injuries — medical evidence supports finding that Applicant did not suffer from the effects of his accepted injuries on or after date of determination — decision under review affirmed.

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988, ss 14, 16, 19

CASES

Comcare v Power (2015) 238 FCR 187

Commonwealth v Borg, unreported, Federal Court of Australia, Full Court, 15 November 1991

Greaves and Comcare [2015] AATA 177

McDonald v Director-General of Social Security (1984) 1 FCR 354

Power and Comcare [2015] AATA 471

Stanton and Comcare [2015] AATA 297

Telstra Corporation Ltd v Hannaford (2006) 151 FCR 253

REASONS FOR DECISION

Dr James Popple, Senior Member

13 October 2016

Summary

1. In 2011, Comcare accepted liability under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) for injuries to the applicant’s arms. In 2015, Comcare decided that the applicant no longer suffered from the effects of those injuries and, therefore, had no entitlement to compensation under s 16 for medical treatment, or under s 19 for incapacity.

2. Comcare had commissioned video surveillance of the applicant, which was conducted in October and November 2014. Some of the things that the applicant is seen doing on that video are inconsistent with him then suffering from the effects of his accepted injuries. It follows that the applicant no longer suffers from the effects of those injuries. He has no entitlement to compensation under s 16 or s 19 of the SRC Act.

   Background

3. The facts set out at [4]–[18] below are agreed between the parties.

4. Mr Glenn Atkinson started working for the Department of Finance (the Department) on 20 November 2007.  He was a records officer performing data entry and administration duties.

5. On 15 February 2011, Mr Atkinson made a claim for compensation for a repetitive strain injury affecting his right forearm.  He said that the injury happened or was first noticed on 8 October 2010.  He first sought medical treatment on 1 February 2011.

6. On 19 March 2011, Comcare accepted liability under s 14 of the SRC Act for “synovitis and tenosynovitis (right) (forearm and hand)”, with a date of injury of 2 February 2011. On 14 September 2011, Comcare accepted liability for a secondary injury: “synovitis and tenosynovitis (left)”. Together, these are the accepted injuries.

7. On 16 September 2011, Dr Peter Wilkins, a consultant occupational physician, reported that Mr Atkinson suffered from “a non-traumatic soft-tissue disorder”.

8. On 5 January 2014, Dr Andrew Serafim, Mr Atkinson’s general practitioner (GP), reported that Mr Atkinson suffered “a connective tissue distortion involving the medial epicondyle region of his elbows secondary to overuse”.

9. On 18 February 2014, Dr Charles Howse, a sports physician, reported that Mr Atkinson had “signs of likely chronic bilateral compartment pressure syndrome in the volar compartments of the forearm and also possible chronic flexor tendinosis”.  On 20 February 2014, Dr Howse reported that testing had confirmed that Mr Atkinson had bilateral flexor compartment syndrome.  Dr Howse recommended “referral to an orthopaedic surgeon for assessment for possible fasciotomies”.

10. On 10 September 2014, Dr Chris Roberts, an orthopaedic surgeon, reported that Mr Atkinson “has, I believe, compartment pressure elevation which is compartment syndrome and there may be other pathology namely medial epicondylitis, ulnar nerve entrapment and overuse syndrome”.  His view was that Mr Atkinson “suffers from compartment syndrome and if he does not have surgery he will continue to experience these symptoms”.  He said that he had “no reason to believe that Mr Atkinson is exaggerating or altering his examination voluntarily”.  He explained that, in his opinion, “it was a combination of him squeezing the files” that he picked up and held when entering data at his work “over a period of time and using the mouse that had [led] to the development of his compartment syndrome”.  He concluded that “there must have been some congenital predisposition with a relatively tight compartment to start with and the activity at work has aggravated or accelerated the problem such that he now has continued to experience the symptoms indefinitely despite ceasing this type of employment”.

11. On 15 September 2014, Dr John Talbot, a consultant orthopaedic surgeon, reported that he was “unable to reach any satisfactory organic diagnosis” of Mr Atkinson’s condition, and did not agree with “the postulated diagnosis”.

12. On 1 October 2014, Dr Roberts reported that he had discussed right medial forearm compartment release surgery with Mr Atkinson, and that Mr Atkinson understood the surgery and was very keen to proceed.

13. Comcare commissioned video surveillance (the surveillance video) of Mr Atkinson, which was conducted on nine days between 11 October and 1 November 2014.

14. On 19 October 2014, Dr Serafim reported that he agreed with Dr Talbot that “the mechanism of injury in Mr Atkinson’s circumstance is unlikely to be occupational”.

15. On 19 November 2014, Comcare advised Mr Atkinson of its intention to cease liability to pay compensation for medical treatment and incapacity payments in relation to his accepted bilateral arm injuries, and denied liability for a secondary bilateral compartment syndrome and associated right forearm compartment fasciotomy.

16. On 19 December 2014, Mr Atkinson wrote to Comcare, arguing that Comcare should not cease and deny liability.  He said that Comcare should give less weight to the reports of Drs Talbot and Serafim, and greater weight to the report of Dr Roberts.  Alternatively, he asked Comcare to defer making a decision about liability “until such time as Dr Roberts’ opinion as to diagnosis and causation is properly considered and/or Dr Talbot’s suggestions re: full and adequate testing as outlined in his report take place”.

17. On 16 February 2015, Comcare decided that, as at that date, Mr Atkinson did not suffer from the effects of any injury sustained on 2 February 2011 and, therefore, had no entitlement to compensation under s 16 of the SRC Act for medical treatment reasonably required in relation to the accepted bilateral arm injuries, or under s 19 for incapacity resulting from those injuries.

18. On 27 February 2015, Mr Atkinson requested a reconsideration of that determination.  On 15 May 2015, Comcare affirmed its determination.

19. On 7 July 2015, Mr Atkinson applied to the Tribunal, under s 64 of the SRC Act, for review of that decision.

    Decision under review

20. The decision under review is Comcare’s decision on 15 May 2015 to affirm its determination that, from 16 February 2015, Mr Atkinson did not suffer from the effects of the accepted injuries, and had no entitlement to compensation under s 16 or s 19 of the SRC Act.

    Issues

21. The issues in this review are whether, from 16 February 2015:

    ·Comcare is liable to pay Mr Atkinson compensation under s 16 of the SRC Act in respect of the cost of medical treatment obtained in relation to his accepted injuries; and

    ·Comcare is liable to pay Mr Atkinson compensation under s 19 for incapacity for work resulting from his accepted injuries.

    Both issues depend on whether Mr Atkinson continued to suffer from the effects of his accepted injuries on and after that date.

    “Onus”

22. In 1984, in McDonald v Director-General of Social Security, the Full Court of the Federal Court explained that there is no evidential onus of proof in proceedings before the Tribunal unless the relevant legislation provides for it.[1]  Mr Atkinson says that Comcare bears “a practical onus” of demonstrating that the effects of the compensable injury have ceased.  He refers to the case of Stanton and Comcare, in which I used that expression,[2] citing the Federal Court’s decision in Commonwealth v Borg[3] and the Tribunal’s decision in Greaves and Comcare.[4]

    [1] (1984) 1 FCR 354 at 358 per Woodward J. See also at 365–366 per Northrop J; at 368–369 per Jenkinson J.

    [2] [2015] AATA 297 at [20].

    [3]     Unreported, Federal Court of Australia, Sweeney, Jenkinson and Gray JJ, 15 November 1991.  The court’s reasons appear, in their entirety, in an editor’s note to Telstra Corporation Ltd v Arden (1994) 20 AAR 285 at 299–310: see at 307 per Jenkinson J, with whom Sweeney J agreed.

    [4] [2015] AATA 177 at [26] per Bean DP.

23. In 2015, in Comcare v Power, the Federal Court said that “[t]he observation about Comcare bearing ‘a practical onus’ is somewhat enigmatic.”[5]  However, after considering several authorities,[6] the Court concluded that it “is reasonable to say, as a practical matter, that Comcare would have to persuade the Tribunal of the circumstances which justify a finding that compensation payments should no longer be made”.[7]

    [5] (2015) 238 FCR 187 at 197 [57] per Katzmann J. Her Honour was referring to my use of that expression in Power and Comcare [2015] AATA 471 at [71].

    [6] (2015) 238 FCR 187 at 197–200 [58]–[69] per Katzmann J.

    [7] (2015) 238 FCR 187 at 200 [70] per Katzmann J.

24. Accordingly, in this review, it is for Comcare to persuade me of the circumstances which justify a finding that compensation payments should no longer be made to Mr Atkinson.

    The competing arguments

25. Comcare argues that:

    ·Mr Atkinson’s accepted injuries were not contributed to, to a significant degree, by his employment by the Department;

    ·even if they were, he does not now suffer from any condition affecting his upper limbs; and

    ·even if he does, that condition is unrelated to his accepted injuries.

26. Mr Atkinson argues that:

    ·his accepted injuries were contributed to, to a significant degree, by his employment by the Department;

    ·he continues to suffer the effects of those accepted injuries;

    ·he reasonably requires medical treatment in relation to those accepted injuries;

    ·he continues to suffer an incapacity for work as a result of those accepted injuries.

27. If Comcare is right about its first point—that Mr Atkinson’s accepted injuries were not contributed to, to a significant degree, by his employment—then Comcare was wrong to accept liability in March and September 2011.  It is open to me to make findings to that effect.  As the Full Court of the Federal Court explained in Telstra Corporation Ltd v Hannaford, the Tribunal (when reviewing a decision that further compensation is not payable under ss 16 and 19 of the SRC Act) can “make findings of fact that effectively undercut the necessary findings of fact made in the initial or original decision … under s 14 of the SRC Act to accept liability”.[8]

    [8] (2006) 151 FCR 253 at 274 [59] per Conti J, with whom Heerey and Dowsett JJ agreed.

28. However, because of the conclusion I come to below,[9] I do not need to make any findings about whether Mr Atkinson’s employment contributed to the accepted injuries.  I also do not need to make any findings about whether Mr Atkinson reasonably requires medical treatment, or whether he is incapacitated for work.

    Did Mr Atkinson continue to suffer from the effects of his accepted injuries on and after 16 February 2015?

    [9] Mr Atkinson does not continue to suffer from the effects of his accepted injuries: see [40] below.

29. As noted above, the issues in this review depend on whether Mr Atkinson continued to suffer from the effects of his accepted injuries on and after 16 February 2015.

30. Mr Atkinson says that the evidence suggests that he has a predisposition to compartment syndrome.  He says that, because his condition was not properly diagnosed for some time, the resolution of his condition was greatly delayed.  On 16 December 2015, he had a right forearm fasciotomy, and he says that that has been successful.  He is currently awaiting surgery for his left arm, which is the less seriously affected of the two.

31. Dr Roberts gave evidence at the hearing.  He explained that muscles tighten within a compartment.  Compartment syndrome can be caused by the muscle being too big; the compartment being too small; or the compartment roof being too low.  A person with compartment syndrome in an arm can experience pain and weakness in that arm, especially if the arm is used repetitively.  Dr Roberts also explained that compartment syndrome is not a common condition in the arms, though it is common in the legs.  A fasciotomy, he explained, is surgery that releases the roof of the compartment so that the muscle has more room.

32. Dr Roberts diagnosed Mr Atkinson as suffering compartment syndrome in his arms on the basis of his history and a measurement of his compartment pressure.  He noted that Mr Atkinson had reported that his employment with the Department involved a lot of repetitive squeezing and holding heavy files.  This, Dr Roberts said, had aggravated or possibly caused the problem.  He said that the delay in diagnosing Mr Atkinson’s condition had contributed to his delayed recovery.  But, he said that he did not understand why Mr Atkinson’s compartment syndrome did not resolve—and the pain cease—when he stopped working.

33. Dr Robert Still, a sports physician, also gave evidence at the hearing.  Dr Still disagreed with Dr Roberts’s diagnosis.  In Dr Still’s view, the measurements of Mr Atkinson’s compartment pressure were only marginally elevated at best, and possibly not elevated at all.  Dr Still said that chronic exertional compartment syndrome is usually caused by activities like kayaking and not by the work activities that Mr Atkinson had reported doing.  Dr Still preferred two alternative possible diagnoses: thoracic outlet syndrome or entrapment of the ulnar nerve in the forearm.  But, he said even those diagnoses were unlikely after he saw the surveillance video.

    The surveillance video

34. Some of the surveillance video was viewed at the hearing.  In the video, Mr Atkinson is seen doing a number of things including: driving a car; shopping; playing a poker machine in a club; lifting a kayak from a trailer, together with another person; fishing with friends; lifting an esky containing several cans of beer and ice; and carrying a shovel a short distance, then using it to kill a fish.

35. Dr Talbot saw Mr Atkinson on 8 September, and prepared a report on 15 September 2014.  He reported that Mr Atkinson had told him that “he spends over 90% of his time at home and only leaves his house to go to doctors’ appointments”; that “he spends virtually all day just sitting at home by himself and watching television”; that “he leaves the house maybe once a month and that is just to attend the doctor’s appointment”; and that “he cannot go to the pub and play the poker machines because of arm pain”.  In May 2015, Dr Talbot viewed some of the surveillance video.  On 12 May 2015, he prepared a supplementary report.  In that report, Dr Talbot noted that Mr Atkinson could be seen on the video “shopping in the supermarket and repeatedly lifting and carrying heavy articles freely with both his arms”; fishing and “digging with a spade”; playing a poker machine; and “strenuously and freely using both arms with no sign of pain or restriction”.  Dr Talbot said that the surveillance video “indicated very graphically that the allegations made by Mr Atkinson to me about his supposed upper limb disability were greatly exaggerated and frankly untruthful”.  Mr Atkinson disputes some of what Dr Talbot reported that Mr Atkinson said to him in September 2014.  Dr Talbot died in October 2015, so Mr Atkinson did not have the opportunity to cross-examine him at the hearing.  Accordingly, I can give Dr Talbot’s report only limited weight.

36. Dr Still viewed all of the surveillance video.  On 4 May 2015, he reported that:

    The surveillance material is illuminating.  It illustrates a marked discrepancy between Mr Atkinson’s claimed restrictions and what he is seen performing on the surveillance videos.  In particular, he is shown to be able to perform fine repetitive movements for a minimum of 3½ minutes, is able to lift a much heavier weight than to which he admits and can drive for at least two hours and socialise for four hours without being “done for the day”.[10]  I would also note that he appeared to react entirely normally with his friends whilst socialising.

    At the hearing, Dr Still explained that Mr Atkinson’s playing a poker machine was not inconsistent with him suffering the effect of his accepted injuries.  But he confirmed that he thought that Mr Atkinson having lifted the kayak (albeit with assistance), and having performed various fine repetitive movements whilst fishing, were not consistent with him suffering the effect of those injuries.  When asked whether Mr Atkinson could be seen on the surveillance video doing anything that was consistent with him suffering from those injuries, Dr Still emphasised that there was a “considerable discrepancy”.

    [10] Regarding Mr Atkinson being “done for the day”, see [41] below.

37. Dr Serafim, Mr Atkinson’s GP, prepared several reports, and gave evidence at the hearing.  He viewed some of the surveillance video.  On 4 June 2015, he reported that he agreed with Dr Still’s interpretation of the video.  He said that the video was “evidence of Mr Atkinson lifting heavy items, performing forceful upper limb activities and driving for prolonged distances” which was “contrary to [his] claims of incapacity”.  At the hearing, he confirmed that the video was contrary to Mr Atkinson’s clinical history.  He said that it suggested that Mr Atkinson had a reasonable degree of functionality within a normal range.  He agreed that Mr Atkinson’s fishing was a repetitive activity that was inconsistent with him suffering the effects of his accepted injuries.  He said that the surveillance video “appeared paradoxical”.

38. Dr Roberts reported, on 5 November 2015, that Mr Atkinson “continues to experience symptoms of compartment syndrome which I believe were aggravated or induced by the work factors”.  He reported that Mr Atkinson, whom he had examined that day, “seemed very genuine, accurately reproducing his symptoms”.  Dr Roberts was provided with the surveillance video, but declined to view it.  At the hearing, some of what Mr Atkinson is seen doing on the video was described to Dr Roberts (who gave his evidence by telephone), but he said that it was difficult for him to comment on it.

39. I have viewed some of the surveillance video.  I accept the evidence of Dr Still and Dr Serafim that some of the things that Mr Atkinson is seen doing on the video are inconsistent with him then suffering from his accepted injuries.  Specifically, I accept that this is true of some of the lifting and some of the fishing that he is seen doing.  I do not think that his playing a poker machine is inconsistent.  Nor do I think that him having driven for at least two hours is inconsistent, noting that Mr Atkinson says that he took a break from driving during a period when he was not under surveillance.  And, although I think it is possible that Mr Atkinson’s carrying, and use, of a shovel may be inconsistent with him suffering from his accepted injuries, there is no medical evidence specifically to that effect except for that of Dr Talbot, and I can give only limited weight to his report.

1. For these reasons, I find that some of the things that Mr Atkinson is seen doing on the surveillance video are inconsistent with him then suffering from the effects of his accepted injuries.  The video was recorded between 11 October and 1 November 2014.  Accordingly, I find, on the balance of probabilities, that Mr Atkinson did not suffer from the effects of his accepted injuries on or after 16 February 2015.

   Did Mr Atkinson lie to doctors?

2. Comcare says that the surveillance video demonstrates that Mr Atkinson lied to his doctors—that he is seen on the video doing things that he had told his doctors that he could not do.  For example, Mr Atkinson told Dr Still that he spent most of his time watching television or reading, and that he was “able to work for approximately one hour each day doing various tasks around the house but then is ‘done for the day’”.[11]  Yet the surveillance video shows that, on 30 October 2014 (the same day that he reported to Dr Serafim that driving exacerbated his pain), Mr Atkinson went shopping for camping gear and, the very next day, drove from Canberra to the coast and went camping.

   [11]    Dr Still’s report of 20 April 2015.

3. I have found that things that Mr Atkinson is seen doing on the surveillance video are inconsistent with him then suffering from the effects of his accepted injuries.  But I make no findings about whether those things are also inconsistent with what Mr Atkinson told his doctors.  I note that Dr Serafim conceded that the video suggests that Mr Atkinson had overstated his symptoms.  But he added that that could have been due to amotivation and depression, both of which Mr Atkinson was suffering at the time.  On 4 June 2015, Dr Serafim reported that “Mr Atkinson could still be genuine in his description of symptoms given that he has assumed the sick role for such a significant duration” and that he “could be overinterpreting his symptoms because of the duration of dysfunction he has suffered”.[12]  I also note that Mr Atkinson disputes the veracity of some of Dr Talbot’s report of September 2014, and was not able to cross-examine him on it.  And I note that there is evidence from friends of Mr Atkinson that he was, at the time of the surveillance video, less able to do things than he had been before his accepted injuries.[13]

   [12]    Dr Serafim confirmed that he held this view in a report on 24 July 2016.

   [13]    There is even evidence that Mr Atkinson was unable to cut his own food, however that would appear to relate to his condition closer to 2011 than to 2015.

4. At the hearing, Comcare said my decision might influence its decision whether to investigate Mr Atkinson for fraud.  Comcare suggested that, in preparing these reasons for decision, I might make comments or provide guidance about whether such an investigation should be undertaken.  I decline to do so.  I have made a finding which resolves the issues in this review.  I am not required to do more than that, and I do not think that I should in this case.

   Conclusion

5. Comcare has persuaded me that Mr Atkinson did not suffer from the effects of his accepted injuries on or after 16 February 2015. Accordingly, Comcare is not liable, from 16 February 2015, to pay Mr Atkinson compensation under s 16 of the SRC Act in respect of the cost of medical treatment obtained in relation to his accepted injuries, or under s 19 for incapacity for work resulting from his accepted injuries.

I certify that the preceding 44 (forty-four) paragraphs are a true copy of the reasons for the decision herein of Senior Member Popple

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

Associate

Dated 13 October 2016

Dates of hearing	15–16 August 2016
Counsel for the Applicant	Mr John Mrsic
Solicitors for the Applicant	Maurice Blackburn, Lawyers
Counsel for the Respondent	Mr David Richards
Solicitors for the Respondent	Claims and Liability Management Division, Comcare