Bennett and Comcare (Compensation) - [2024] AATA 204

Bennett and Comcare (Compensation) [2024] AATA 204 (15 February 2024)
Division:GENERAL DIVISION
File Number(s): 2021/3059
2022/2765

Re:Rosalie Bennett
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:L M Gallagher, Member
Date:15 February 2024
Place:Perth

Application 2021/3059 – The Reviewable Decision dated 25 March 2021 is affirmed.
Application 2022/2765 – The Reviewable Decision dated 6 January 2022 is affirmed.
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L M Gallagher, Member
CATCHWORDS
COMPENSATION – Commonwealth employee – accepted injury – repetitive strain injury – distinction between injury and ailment – whether the Applicant’s condition is the same condition for which liability was previously accepted – whether the condition remains a condition contributed to by the Applicant’s employment – whether physiotherapy treatment is ‘medical treatment’ for the purpose of the Safety, Rehabilitation and Compensation Act 1988 (Cth)
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 16, 53, 124(1)(c)
Compensation (Commonwealth Government Employees) Act 1971 (Cth) ss 5, 16, 27(1), 29(1)(a)
CASES
Treloar v Australian Telecommunications Commission [1990] FCA 511; 26 FCR 316
Woodhouse v Comcare (2021) 285 FCR 14
REASONS FOR DECISION
L M Gallagher, Member
15 February 2024
THE APPLICATION

The Applicant seeks review of two of the Respondent’s decisions, hence there are two applications before the Tribunal:
(a)Application 2021/3059 (Application 2021/3059).
(b)Application 2022/2765 (Application 2022/2765).
Application 2021/3059
The Respondent’s decision dated 25 March 2021 affirmed a determination dated 21 January 2021 (Reviewable Decision No. 1).[1]
[1] R1, T21.
The determination dated 21 January 2021 determined that in respect of the Applicant’s accepted claim for ‘repetitive strain injury to right side of neck, right wrist and shoulder’, the Respondent was not liable to pay compensation to the Applicant for medical treatment, namely physiotherapy treatment obtained on:
(a)15 January 2019;
(b)22 January 2019;
(c)10 April 2019;
(d)16 April 2019;
(e)16 July 2019; and
(f)23 July 2019,
pursuant to s 16 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act) (Original Decision No. 1).[2]
[2] R1, T17.
Application 2022/2765
The Respondent’s decision dated 6 January 2022 affirmed a determination dated 15 November 2021 (Reviewable Decision No. 2).[3]
[3] R2, T19.
The determination dated 15 November 2021 determined that the Applicant had no present entitlement to compensation for medical expenses under s 16 of the SRC Act from 6 October 2021 in respect of her accepted claim for ‘repetitive strain injury (right) arm’ (Original Decision No. 2).[4]
ISSUES
[4] R2, T13.
Application 2021/3059
The issues for the Tribunal in Application 2021/3059 are:
(a)What ailment or injury does the Applicant currently suffer from, and, is it the same condition for which liability was previously accepted?[5]
(b)If the Applicant currently suffers from a condition best classified as an injury, was the Applicant still suffering the effects of it by the time she commenced obtaining the claimed medical treatment on 15 January 2019?
(c)If the Applicant currently suffers from a condition best classified as an ailment, does the present ailment (suffered on and from 15 January 2019) remain an ailment that was contributed to by the Applicant’s employment?
(d)If so, is the Respondent liable to pay compensation in respect of it for medical treatment under s 16 of the SRC Act? This requires the Tribunal to consider:
(i)Whether the physiotherapy treatment is ‘medical treatment’ for the purpose of the SRC Act?
(ii)Whether the physiotherapy treatment is obtained ‘in relation to’ an injury?
(iii)Whether the physiotherapy treatment is ‘reasonable to obtain in the circumstances?’
[5] The previously accepted condition being ‘repetitive strain injury to right side of neck, right wrist and shoulder.’
Application 2022/2765
The issues for the Tribunal in Application 2022/2765 are:
(a)What ailment or injury does the Applicant currently suffer from, and, is it the same condition for which liability was previously accepted?[6]
(b)If the Applicant currently suffers from a condition best classified as an injury, was the Applicant still suffering the effects of it on and after 6 October 2021?
(c)If the Applicant currently suffers from a condition best classified as an ailment, does the present ailment (suffered on and from 6 October 2021) remain an ailment that was contributed to by the Applicant’s employment?
(d)If so, is the Respondent liable to pay compensation in respect of it for medical treatment under s 16 of the SRC Act? This requires the Tribunal to consider:
(i)Whether the physiotherapy treatment is ‘medical treatment’ for the purpose of the SRC Act?
(ii)Whether the physiotherapy treatment is obtained ‘in relation to’ an injury?
(iii)Whether the physiotherapy treatment is ‘reasonable to obtain in the circumstances?’
[6] The previously accepted condition being ‘repetitive strain injury (right) arm.’
BACKGROUND
On 24 August 1970, the Applicant commenced employment with the Department of Social Security.[7]
[7] R1, T9, p 56.
On 12 April 1985, liability was accepted for ‘repetitive strain injury to right side of neck, right wrist and shoulder.’[8]
[8] Liability was accepted under the provisions of the Compensation (Commonwealth Government Employees) Act 1971 (Cth) (1971 Act). The Respondent filed a copy of its determination dated 12 April 1985 with the Tribunal on 14 June 2021 (A1).
On 19 August 1985, the Applicant lodged a claim for compensation with respect to a repetitive strain injury in her left shoulder and left arm claimed to have been suffered on 4 June 1985.[9]
[9] R1, T18, pp 161-162. According to the Applicant, she had suffered an injury to her left and right arms and that they became apparent at different times while performing the same types of duties (R1, T18, p 163). Based on medical advice, on 31 January 1986 the Respondent decided to treat the Applicant’s repetitive strain injury claims as one. As all payments made by the Respondent to that date were in respect to the Applicant’s first repetitive strain injury claim, the Respondent advised that ‘nothing will change in future’ (R1, T18, p 165).
From 3 February 1994, the Respondent paid for the Applicant’s physiotherapy treatment.[10]
[10] R6, Annexure A.
On 4 April 1999, the Applicant accepted a voluntary redundancy and ceased employment with the Department of Social Security.[11]
[11] R1, T9, p 50.
On 19 April 1999, the Applicant commenced work at a private accounting firm.[12]
[12] R4, p 657.
On 1 December 2017, the Applicant signed a claim form in relation to her ‘right arm, right shoulder and neck injury.’[13] On the form, the Applicant indicated that she first noticed her symptoms on 10 March 1985. The Applicant states she was injured from performing ‘mainframe computer processing’ and ‘working overtime’.[14]
[13] R1, T6.
[14] R1, T6, p 35.
On 13 February 2018, the Department of Social Security denied liability for the Applicant’s claim, due to her failure to comply with the applicable notice provisions in s 53 of the SRC Act.[15]
[15] R1, T7.
On 22 February 2018, the Applicant sought review of the determination.[16]
[16] R1, T8, p 49.
On 26 March 2018, the determination was affirmed.[17]
[17] R1, T10. The determination dated 6 February 2018 denying liability for the Applicant’s claimed ‘right arm, right shoulder and neck injury’ was made due to the operation of s 124(1)(c) of the SRC Act, with the Applicant’s claim being in respect of an injury claimed to have been suffered after 1971 but before 1 July 1986 with no evidence of any claim having actually been received during that period.
The Applicant sought further review of the determination in the General Division of the Administrative Appeals Tribunal (the Tribunal).
By consent, the Tribunal set aside the reviewable decision dated 26 March 2018 and, in substitution, decided that on and from 1 December 1988, the Applicant had an accepted claim for compensation in respect of ‘repetitive strain injury to right side of neck, right wrist and shoulder’ with the date of injury deemed to be 15 March 1985.[18]
[18] R1, T13.
Subsequently, the Applicant lodged a claim for compensation under s 16 of the SRC Act in respect of physiotherapy treatment she received on 15 January 2019, 22 January 2019, 10 April 2019, 16 April 2019, 16 July 2019 and 23 July 2019.[19]
[19] R1, T4, pp 145, 146, 148, 149.
On 21 January 2021, the Respondent made Original Decision No. 1.[20]
[20] R1, T17. See [3] above.
On 15 February 2021, the Applicant requested reconsideration of Original Decision No. 1.[21] In her request, the Applicant emphasised that liability had previously been accepted for her left shoulder, left arm and neck[22] and submitted that any treatment received in relation to those areas was compensable.
[21] R1, T18.
[22] See [10], fn 9.
On 25 March 2021, the Respondent made Reviewable Decision No. 1.[23]
[23] R1, T21. See [2] above.
On 10 May 2021, the Applicant applied to the Tribunal for review of Reviewable Decision No. 1.[24]
[24] R1, T2.
This application was given application number 2021/3059.
On 16 September 2021, the Respondent sent the Applicant a notice of intent to determine no present liability in relation to her previously accepted claim for ‘repetitive strain injury (right) arm’.[25]
[25] R2, T12.
On 15 November 2021, the Respondent made Original Decision No. 2.[26]
[26] R2, T13. See [5] above.
On 3 December 2021, the Applicant requested reconsideration of Original Decision No. 2.[27]
[27] R2, T14.
On 6 January 2022, the Respondent made Reviewable Decision No. 2.[28]
[28] R2, T19. See [4] above.
On 29 March 2022, the Applicant applied to the Tribunal for review of Reviewable Decision No. 2.[29]
[29] R2, T2.
This application was given application number 2022/2765.
LEGISLATIVE FRAMEWORK
As liability was accepted under the Compensation (Commonwealth Government Employees) Act 1971 (Cth) (1971 Act), regard must be had to the provisions of that Act with respect to issues pertaining to ongoing liability.
Regarding the extent of contribution required to establish that the Applicant continues to suffer from the injuries, s 27(1) of the 1971 Act states:
If personal injury arising out of or in the course of the employment of an employee by the Commonwealth is caused to the employee, the Commonwealth is, subject to this Act, liable to pay compensation in respect of that injury in accordance with this Act.
Further, for liability to exist to pay compensation for a disease or aggravation of a disease, s 29(1)(a) of the 1971 Act provides that the employment must have been:
a contributing factor to the contraction of the disease or to the aggravation, acceleration or recurrence…
By s 124 of the SCR Act, the Applicant’s entitlement to compensation for medical treatment is determined under section 16 of the SCR Act.
Section 16 of the SRC Act provides:
Compensation in respect of medical expenses
(1) Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.
As to the test to be applied for a disease or an aggravation of a disease:[30]
…once it is established that an employee in the doing of his work was exposed to ‘a state of affairs to which he would otherwise not have been exposed’ or to ‘some characteristic of or condition in which the work was to be performed’ and that such exposure was in truth a ‘contributing’ factor to the condition in respect of which he seeks compensation then it matters not whether the contribution was of any particular size or degree…
…the ‘but for’ test is not appropriate nor is the…‘real effective cause’ or ‘proximate cause’ formulation. All that is required is that the relevant aspects of employment add their measure to the creation of the condition, its aggravation or acceleration. They must, in truth, be part of the cause. If they are not, they do not ‘contribute.’
…The causal connection must be established on the balance of probabilities and not left in the area of possibility or conjecture. Once the link is established, however, it matters not that the contribution be large or small.
[30] Treloar v Australian Telecommunications Commission [1990] FCA 511; 26 FCR 316 at [21]-[22].
In order for the Applicant to be deemed to continue to suffer the disease for which liability was previously accepted, the causal nexus between the Applicant’s employment and the suffering of the disease must continue unbroken, that is:[31]
it must retain the continuing characteristic that it was contributed to in the necessary degree by the employment. If at any later point in time the ailment suffered by an employee ceases to have that character, it will cease to be a “disease”…
[31] Woodhouse v Comcare (2021) 285 FCR 14 at [33]-[34], [85] (per Derrington J).
EVIDENCE
The matter was heard in Perth on 14 June 2023. The Applicant was self-represented. The Respondent was represented by Counsel, Ms Kate Slack. Ms Slack was instructed by Ms Daphne Jones-Bolla, of Sparke Helmore Lawyers. All parties appeared in person. No witnesses were called.
The Tribunal admitted the following documents into evidence:
(a)Applicant’s submissions with attachments, dated 9 June 2021 (A1);
(b)Applicant’s submissions and evidence with attachments, dated 3 December 2021 (A2);
(c)Applicant’s letter dated 20 June 2022 enclosing five medical reports, various dates (A3);
(d)Report of Dr Evan Jenkins, medicolegal consultant (general practitioner), dated 16 June 2022 (A4);
(e)Applicant’s letter to Tribunal, dated 7 October 2022 (A5);
(f)Respondent’s section 37 T documents for Application 2021/3059, being documents T1 to T24 and comprising 237 pages, filed 10 June 2021 (R1);
(g)Respondent’s section 37 T documents for Application 2022/2765, being documents T1 to T15 and comprising 56 pages, filed 4 May 2022 (R2);
(h)Respondent’s Summons Bundle (Part 1) for Application 2021/3059, being documents 1 to 4 and pages 1 to 601, filed 21 October 2023 (R3);
(i)Respondent’s Summons Bundle (Part 2) for Application 2021/3059, being documents 1 to 5 and pages 602 to 821, filed 8 November 2021 (R4);
(j)Reports of Stella Peters, physiotherapist, dated 8 September 2017, 30 April 2021 and 3 September 2021 (R5);
(k)Respondent’s Statement of Facts, Issues and Contentions (SFIC), with attachments, dated and filed 20 September 2022 (R6);
(l)Report of Dr Mark Floyd, consultant occupational physician, dated 12 August 2020 (R7);
(m)Respondent’s letters of instruction to Dr Floyd, dated 10 September 2018, 15 July 2020 and 10 February 2022 (R8);
(n)Report of Dr Floyd, dated 25 March 2022 (R9); and
(o)Copy of Clinical Framework – For the Delivery of Health Services (R10).
At the hearing, the Respondent provided to the Tribunal and to the Applicant a written outline of closing submissions.
The Tribunal is satisfied that all the relevant evidence was before the Tribunal and that the parties were provided an opportunity to address the material, either orally or in writing. Relevant aspects of the evidence and material before the Tribunal will be referred to below.
CONSIDERATION
Parties’ positions
The Applicant is of the view that she still suffers from repetitive strain injury, although in a milder form than what she originally suffered.[32] The Applicant considers that by reimbursing her past medical expenses, the Respondent has ‘admitted their shortcomings’[33] and that she remains entitled to ongoing reimbursement.[34]
[32] Transcript, p 17.
[33] A1, p 2.
[34] A1, p 3.
The Applicant gave evidence that:[35]
For many years I have been able to manage my RSI [repetitive strain injury] with regular physiotherapy sessions (2 or 3) every few months. I find a great relief after these sessions. Every once in a while I have a flare up with concentrated pain in one area but my physio is able to relieve the pain with her treatment.
These regular physio sessions I class as maintenance and I do not want to go back to the debilitating headaches I used to get.
[35] A1, p 3.
In summary, the Respondent contends that:
(a)The Applicant presently suffers from a disease being an ailment under s 5 of the 1971 Act, characterised as ‘non-specific musculoskeletal pain’ (left and right).[36]
(b)The Applicant’s previous Commonwealth employment does not contribute to the Applicant’s present condition and, as such, liability does not arise under s 16 of the SRC Act (‘contributed to’ being the causative test under the 1971 Act).
This view is based on Dr Floyd’s opinion that there is no condition since 2019, or presently, impacting the Applicant’s neck, her left side or her right side that was contributed to by her Commonwealth employment.
(c)Alternatively, the criteria in s 16 of the SRC Act should not be found to be satisfied and, as such, liability does not arise to pay for the claimed physiotherapy treatments.
This is on the basis that treatment is not being obtained in relation to an injury and that it is not reasonable treatment in the circumstances.
From what ailment or injury does the Applicant currently suffer from and, is it the same condition for which liability was accepted?
[36] R6, [4.10], [4.11].
As set out above,[37] and in relation to both applications before the Tribunal, the first issue for determination is the ailment or injury the Applicant currently suffers from and whether it is the same condition for which liability was accepted.
[37] See [6] and [7] above.
The Respondent previously accepted liability for the Applicant’s:
(a)Repetitive strain injury to right side of neck, right wrist and shoulder;[38]
(b)Repetitive strain injury (right arm);[39] and
(c)For all intents and purposes, repetitive strain injury left shoulder and arm.[40]
[38] See [3] and [9] above.
[39] See [5] above.
[40] See [10] above.
The Tribunal has considered the available medical evidence and finds that in respect of both Application 2021/3059 and Application 2022/2765, the Applicant presently suffers from non-specific musculo-skeletal pain in the neck, both shoulders and arms (that is, left and right sided). In making this finding, the Tribunal relies on the following evidence:
(a)In his report dated 25 March 2022, Dr Floyd gave the opinion that the Applicant’s left shoulder, neck and medial elbow complaint is accounted for by non-specific musculo-skeletal pain, being the contemporary name for muscular ache and pain and also previously known as RSI.[41]
(b)In his report dated 27 September 2018, Dr Floyd gave the opinion that the Applicant has what is currently described as ‘nonspecific pain’, that is, there is no specific clear or organic pathology to account for her symptoms. Moreover it is a pain and discomfort phenomenon that likely has soft tissue musculoskeletal origins without clearly identifiable pathology.[42]
(c)In his report dated 12 August 2020, Dr Floyd reported:[43]
There is no clear indication of a specific injury pathology. That is [sic] there is no indication [the Applicant] sustained anything other than mild soft tissue injury at the time of her original onset. The cause for her persistent complaint does not appear to be related to any specific tissue injury or tissue structure, moreover she has non-specific musculoskeletal pain. The term non-specific is used to indicate that there is no specific pathology to account for her persistent complaint. She has had extensive investigation over time and no clear pathology that would account for her symptoms has been identified.
…
If there was a sprain or strain from overload in 1985…[or] from [the Applicant’s] work exposures [then] this would have resolved over a six to eight week period…
[41] R9, p 7 of report.
[42] R1, T11, p 16 of report.
[43] R7, pp 6 and 9 of report. See also p 7 of report.

In light of the previous characterisations of the Applicant’s compensable conditions as repetitive strain injuries[44] and Dr Floyd’s opinion that non-specific musculo-skeletal pain is essentially the contemporary name for ‘repetitive strain injury,’ the Tribunal is satisfied that the Applicant’s non-specific musculo-skeletal pain (left and right) from which she currently suffers is:
(a)The same condition for which liability was previously accepted; and
(b)A disease being an ailment as defined by s 5 of the 1971 Act.
[44] See [44] above.
Whether liability continues to arise in relation to the Applicant’s current condition
Having determined that the Applicant currently suffers from ‘non-specific musculo-skeletal pain (left and right),’ being the same condition for which liability was previously accepted and an ailment for present purposes, the next matter for consideration is whether the Applicant’s present ailment suffered on and from 15 January 2019[45] (and in turn, suffered on and from 6 October 2021)[46] remains an ailment that was contributed to by the Applicant’s employment.[47]
[45] Application 2021/3059.
[46] Application 2022/2765.
[47] The relevant test being whether the condition remains to be contributed to by the Applicant’s previous employment with the Commonwealth. See [34] above.
In this regard, the Tribunal notes that the Applicant ceased employment with the Commonwealth in April 1999.[48]
[48] See [12] above.
In support of her position that she remains entitled to ongoing reimbursement for her claimed physiotherapy treatments, the Applicant relies on reports by Dr Jenkins. The Tribunal emphasises the following relevant aspects of Dr Jenkins’ reports:
Dr Jenkins’ report dated 16 June 2022[49]
Dr Floyd and I differ with regard to your diagnosis. He notes that you were originally diagnosed with a repetitive strain injury (‘RSI’). However, in my opinion the correct diagnosis is that you have been suffering from variable bilateral brachialgia (neuropathic pain in both upper limbs) associated with a symptomatic aggravation of degenerative cervical disc disease particularly at the level of C5/6.[50] That is, it is my view that the original RSI diagnosis is incorrect….
…
Dr Floyd has cast doubt on the link between your ongoing and chronic neck and upper limb symptoms and your work, which was admittedly a long time ago in 1985. However, at each occasion when I have reviewed you, you have confirmed that you have had continual, albeit quite variable, cervical and/or upper limb symptoms since the work-related condition developed with no appreciable periods of having no symptoms. Given the continual nature of these symptoms it is in my opinion incorrect to suggest that there is no link with the work activities which triggered your symptoms all those years ago in 1985. The condition found is consistent with a work-related condition which has remained symptomatic for 35 years. It is also consistent with the work activities you described as leading to the onset of symptoms in early March 1985.
[49] A4, pp 3 and 4 of report.
[50] Dr Jenkins also characterises this condition as chronic symptomatic aggravation of cervical spondylosis with likely intermittent brachialgia and suspected mild right C5 radiculopathy (A4, p 3 of report).
Dr Jenkins provides no explanation or rationale for this view.
Dr Jenkins provided a similar diagnosis in his earlier report in 2018, which he characterised as ‘chronic symptomatic cervical spondylosis, suspected right brachialgia’, and which he believed could certainly result in the pain and restrictions exactly as the Applicant described.[51] In this report, Dr Jenkins offered the basis for his opinion on diagnosis that the spondylotic degenerative change at C5/6 with a right sided foraminal stenosis at that level revealed by the Applicant’s MRI of the cervical spine (on 14 December 2016)[52] could plausibly be causing intermittent irritation of the exiting right C6 nerve root resulting in brachialgia.[53] Dr Jenkins considered the Applicant’s mechanical cervical symptoms were entirely in keeping with his diagnosis.[54]
[51] See A3, pp 9 and 11 of report dated 8 October 2018.
[52] See A3, pp 1 and 7 of report dated 8 October 2018.
[53] A3, pp 9 and 10 of report dated 8 October 2018.
[54] A3, pp 10 and 11 of report dated 8 October 2018.
Dr Jenkins’ earliest diagnosis was ‘chronic relapsing mechanical neck pain, tension headaches, right shoulder and arm pain’, which he considered to be most likely caused by repetitive office and keyboard work in 1985.[55]
[55] A3, pp 7 and 8 of report dated 23 November 2016.
The Applicant also relies on the reports of Dr John Hayes, consultant rheumatologist and Dr Farhan Shahzad, consultant occupational physician.[56]
[56] Reports contained within A3. Dr Hayes’ report is over 15 years old, his provided diagnosis of ‘cervicobrachial regional pain syndrome’ is inconsistent with both Dr Floyd’s and Dr Jenkins’ diagnoses and considered by both doctors as being outdated. Similarly, Dr Shahzad’s diagnosis of repetitive strain injury is one that, according to Drs’ Floyds and Jenkins is also outdated and no longer accepted.
The Respondent, in turn, relies on Dr Floyd’s opinion that:
(a)The Applicant has no specific injury pathology, or underlying specific pathology or organic pathology that is capable of demonstrating that her symptoms are presently contributed to by her past Commonwealth employment.[57]
(b)There are other reasons to explain the Applicant’s symptoms that are presently relevant including degeneration in the cervical spine and her current employment.[58]
(c)There was no evidence of any ongoing injury or disease referable to the condition the Applicant experienced in 1985.[59]
[57] See [45(b)], [45(c)] above. See also R9, p 8 of report dated 25 March 2022.
[58] R1, T11, pp 136 and 138, being pp 14 and 16 of report dated 27 September 2018; R7 pp 6 and 6 of report dated 12 August 2020 and R9, pp 2, 6, 8 and 9 of report dated 25 March 2022.
[59] R9, p 9 of report dated 25 March 2022.
The Tribunal emphasises the following explanations given by Dr Floyd for his views:
With regard to her present [left side] condition as I have detailed above I would not consider her employment with DSS to be a significant cause for her persistent complaint. This as I have detailed is a non-specific musculoskeletal pain. There is no injury. There is no injury pathology. There is some degenerative change. The exposure was nearly 35 years ago. In the absence of any significant trauma at that time it is not possible to state with any degree of confidence that work exposure over that time would account for her symptoms now.[60]
…
The cause for persistent pain is not entirely clear. [61]
…
It should be noted that non-specific pain can occur without injury and is not exclusive to injury event.[62]
…
Irrespective of ongoing exposure I cannot confirm that [the Applicant’s] employment continues to contribute to a significant degree. Firstly, she has changed employment. Secondly she is working part-time. In additional she has had appropriate assessments and is aware of ergonomic approaches to activity.[63]
[60]R9, p 9 of report dated 25 March 2022.
[61] R7, p 8 of report dated 12 August 2020.
[62] R7, p 8 of report dated 12 August 2020.
[63] R7, p 9 of report dated 12 August 2020.
Having considered the medical evidence in its entirety, the Tribunal prefers the opinion of Dr Floyd over that of Dr Jenkins. The reasons for this preference are:
(a)Dr Floyd’s opinion refers to the period of time relevant to the issues for review.
(b)The Tribunal considers Dr Floyd’s qualifications and experience as a consultant occupational physician to be more appropriate than Dr Jenkins, who is a general practitioner.
(c)The radiology relied upon by Dr Jenkins, being the MRI conducted in December 2016, was conducted over 30 years after the Applicant’s claimed injury in 1985. Dr Floyd is of the view that any pathology now evidence is more likely to be the result of age-related degenerative change.
(d)Dr Jenkins’ opinion regarding causation is, at its highest, that the Applicant’s present condition is consistent with a work-related condition and that it is incorrect to suggest otherwise. In the Tribunal’s view, Dr Jenkins’ opinion is, at its highest, that there is a possibility that the Applicant’s Commonwealth employment continues to contribute to her current ailment. This falls short of the required standard that there must be a reasonable degree of probability, that is, that the Tribunal must be reasonably satisfied that this fact exists.
(e)As reported to Dr Floyd,[64] the Applicant’s current work tasks are such that she works 8 hours per day, which is two hours more than her usual six hour work day and that she needs two to three days to recover. This suggests her current tasks, as opposed to her tasks while engaged in her past Commonwealth Employment, may be triggering or perpetuating her current symptoms and pain.
[64] R9, p 2 of report dated 25 March 2022
CONCLUSION
The Applicant seeks an order that would have the effect of rendering the Respondent liable for the claimed cost of her physiotherapy treatment obtained on various dates in 2019.
The Tribunal has found that the Applicant’s present ailment impacting her neck, bilateral shoulders and her arms is not a disease that was contributed to by her Commonwealth employment and therefore, she no longer suffers from an injury as defined.
As such, liability cannot be accepted under s 16 of the SRC Act for the Applicant’s claimed physiotherapy treatment.
DECISION
Reviewable Decision No. 1 and Reviewable Decision No. 2 are affirmed.
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Associate
Dated: 15 February 2024

Date of hearing: 14 June 2023

Applicant: Self-represented

Counsel for the Respondent:

Solicitor for the Respondent:

Ms Kate Slack

Ms Daphne Jones-Bolla, Sparke Helmore