Berkes and Comcare (Compensation) (Compensation)

[2024] AATA 2075

Berkes and Comcare (Compensation) (Compensation) [2024] AATA 2075 (26 June 2024)

Division:GENERAL DIVISION

File Number(s):      2019/7389; 2020/4933 & 2021/0311

Re:Ms Irene BERKES

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Deputy President B W Rayment OAM KC

Date:26 June 2024

Place:Sydney

The three reviewable decisions are affirmed.

.............................[SGD]...........................................

Deputy President B W Rayment OAM KC

CATCHWORDS

2019/7389 — COMPENSATION - whether the Applicant is entitled to compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) – claim for compensation for chronic pain syndrome – whether condition was caused by or contributed to, to a significant degree, by prior injuries (s. 5B test) – decision under review affirmed

2020/4933 — COMPENSATION - whether the Applicant is entitled to compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) – claim for compensation for a pain management program – whether s. 5B test is satisfied – decision under review affirmed

201/0311 whether the Applicant is entitled to compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) – claim for compensation for aggravation of major depressive disorder – whether s. 5B test is satisfied – decision under review affirmed

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988 (Cth)

REASONS FOR DECISION

Deputy President B W Rayment OAM KC

26 June 2024

1. The reviewable decision of 6 November 2019, affirming a determination to decline liability for compensation under s.14 of the Safety Rehabilitation and Compensation Act 1988 (the Act) in respect of chronic pain syndrome, sets out a short summary of the then background to that claim of the applicant. It can serve as a short form introduction to that claim. It said:

   ·[The applicant] has an accepted claim for tear of lateral cartilage or meniscus of knee (right) and aggravation of internal derangement of knee (left) ([the applicant’s] compensable conditions sustained on 20 June 2007 and 31 December 2007 respectively. [The applicant’s] right knee injury occurred when [she] stood up suddenly to answer the phone and twisted [her] right knee. The left knee injury was attributed to a prolonged period of partial weightbearing on the left side following right knee arthroscopic surgery.

   ·On 9 April 2019, [the applicant] completed a Notification of a Newly Reported Condition form claiming compensation for CPS. [The applicant] claimed this new injury was ‘in conjunction with [her] knee injuries’.

   ·On 3 October 2019, Comcare declined CPS noting there was no causal relationship between [the applicant’s] claim for CPS and [her] compensable conditions.

   ·On 4 October 2019, [the applicant’s] solicitor, on [her] behalf requested a reconsideration of this determination as they considered Comcare had erred in accordance with section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act).

   ·The finding was that there was no conclusive information to support [that the applicant] had sustained a condition or an aggravation of a condition, namely CPS. Those findings were based on the following:

   ·There had been no specific and accurate diagnosis provided by a medical practitioner to support [that the applicant] has CPS.

   ·The only reference to chronic pain on [the applicant’s] file was noted by Dr Anthony Turner (general practitioner) in his report dated 22 November 2011, who opined [the applicant’s] depression was a direct result of chronic pain.

   ·The decision maker found that [the applicant] has not sustained CPS, and therefore did not assess whether this condition was significantly contributed to by [the applicant’s] compensable conditions.

   ·On this basis, the decision maker affirmed the determination dated 3 October 2019 and declined CPS under section 14 of the SRC Act.

2. The acronym CPS was shorthand for chronic pain syndrome.

3. After November 2019 Comcare made two further determinations affecting the applicant. On 14 August 2020 Comcare determined by reviewable decision to affirm a determination to decline medical compensation under s. 16 of the Act for a pain management program.

4. On 21 January 2021, Comcare made a reviewable decision which affirmed a decision that declined liability for compensation for major depressive disorder and somatic symptom disorder, under s.14 of the Act.

5. The injuries that led to the pain originally suffered by the applicant, Mrs Berkes, were suffered in the year 2007, when she was working as a Senior House Attendant as part of the domestic staff for two former Prime Ministers in succession at Kirribilli House.  She was then aged about 51.  She had two work injuries, one on 20 June 2007, and the other on 31 December 2007, for which Comcare accepted liability.  The first injury was to the right knee, and there is a contemporaneous medical certificate from Dr Chen dated 6 July 2007 stating that she had acute knee pain following a twisting injury at work and required a right knee MRI scan to confirm the diagnosis of a meniscal tear (T 14 at page 103). The MRI results are reported at T 15 page 116, and the arthroscopy operation she underwent on 31 July 2007 is reported on at T 18 page 122.

6. The second injury was another work injury when a trestle table was dropped and hit the applicant on the back of her left leg, causing her to take all of her weight on her left leg to prevent a fall and to protect her right knee.

7. These reasons deal with each of the three reviewable decisions dated 14 November 2019, 14 August 2020 and 21 January 2021.

   2019/7389

8. Today, her claim may be summarised as a claim for chronic pain syndrome or persistent post-surgical pain, and a claim for a mental health condition, as to which I have heard evidence from a rheumatologist, a pain specialist, and psychiatrists, and the T documents include the written statements of other medical or medico-legal witnesses.

9. The reviewable decision mentions an alternative claim for an aggravation of chronic pain syndrome. That kind of claim was once made to the Tribunal, but later withdrawn and dismissed by the Tribunal, without a determination being made.  This matter was discussed, perhaps with some uncertainty, at pages 4-8 of the transcript of one of the earlier hearings in this matter on 14 December 2022, and then later in submissions.

10. Comcare’s statement of facts, issues and contentions dated 21 June 2021, was far more specific than the corresponding document filed on behalf of the applicant. Some matters of importance in the case were listed in the statement of issues and contentions filed by Comcare.  Under the heading “Contentions” relating to the claim for a chronic pain syndrome, the respondent said:

    43. In order to establish a claim for a new injury (as distinct from the previous accepted knee injuries), the applicant will need to demonstrate that she suffered a condition which is capable of being categorised as a separate injury for the purposes of the Act.[1]

    44. Dr Ho diagnosed the applicant’s conditions as follows:       

    1. Chronic nociplastic right knee pain secondary to central sensitisation, as triggered by the meniscal tear and chondral injury, as triggered by the index event/injury as above.

    2.  Chronic nociplastic left knee pain secondary to central sensitisation, as triggered by accelerated osteoarthritis (see above)

    45. In the respondent’s contention, Dr Ho’s description of ‘Chronic nociplastic…knee pain’ does not establish a separate injury for the purposes of the Act, as required. This is due to the diagnoses being described as pain associated with the primary conditions (meniscal tear and osteoarthritis). The respondent contends that, even if Dr Ho’s diagnosis was accepted, it is in the category of ‘chronic pain’ from an established condition, as distinct from a ‘chronic pain syndrome’ that is not capable of constituting an injury under the Act.

    46. The respondent contends that the opinion of Associate Professor McGill is preferable. A diagnosis of a pain syndrome as a separate injury only applies where the symptoms are not explained by the pathology from the original injury and the clinical examination. Associate Professor McGill consider that the applicant’s pain symptoms are explained by her bilateral knee osteoarthritis, for which she is awaiting bilateral knee replacement surgery.

    47. The respondent contends that there is no separate injury capable of determination by the Tribunal. It is confirmed that claims for initial and/or present liability for ‘tear of lateral cartilage or meniscus of knee (right)’, ‘internal derangement of knee (left) and bilateral knee osteoarthritis are not before the Tribunal.

    48. The respondent contends that the medical evidence indicates that any bilateral knee pain experienced by the applicant is not a separate injury, but a symptom of the applicant’s previously diagnosed bilateral knee osteoarthritis, which is non-compensable.

    [1] Canute v Comcare [2006] HCA 47.

11. As events transpired, oral evidence was not called from Dr Ho, but instead was called from Dr Trudi Richmond.  His opposite number was Dr McGill, a rheumatologist.

12. Dr Ho’s statement included in the Joint Tender Bundle, noted the following under the heading “ASSESSMENT AND DIAGNOSIS”:

    In my opinion, my diagnoses for Ms Berkes’ chronic pain syndrome are: -

    1. Chronic nociplastic right knee pain secondary to central sensitisation, as triggered by the meniscal tear and chondral injury, as triggered by the index event/injury as above.

    2. Chronic nociplastic left knee pain secondary to central sensitisation, as triggered by accelerated osteoarthritis (see above).

    3. Cortical augmentation with catastrophisation, adjustment disorder, and poor self-efficacy related to her chronic pain.

    In my opinion, the above diagnoses are triggered by injury caused by the index event.

    Ms Berkes’ chronic pain is further perpetuated by central sensitisation, as well as, maladaptive pain coping with adjustment disorder, catastrophisation and poor self-efficacy.

    I opine that Ms Berkes has reached maximum medical improvement as it has been more than 1 year since the index event, which is sufficient time for physiological healing to occur.

    Base [sic] on Ms Berkes’ impairment, I recommend the following follow-ups, targeting her disability as outlined in Table 1.1 (see above):

    Functional tasks – Ms Berkes’ functional disability is consistent with the above diagnoses. In my opinion, her physical/functional capacity may still improve with a multidisciplinary pain management program.

    Activities of daily living – Ms Berkes’ disability with activities of daily living is consistent with the above diagnoses. In my opinion, her physical/functional independence may still improve with a multidisciplinary pain management program. I further opine that ongoing assist for heavy-duty domestic ADLs, handyman and home maintenance tasks is reasonably necessary in the long term.

    Capacity for work – In my opinion, this is consistent with the above diagnosis. I opine that Ms Berkes’ physical/functional capacity for work may still improve with a multidisciplinary pain management program. I opine that Ms Berkes may still be able to have the physical capacity for sedentary duty at part-time hours if she has further retraining and rehabilitation. I further opine that Ms Berkes’ chronic pain has compromised her competitiveness for employment in the current labour market.

13. He also made comments as to treatment she required for her chronic pain syndrome and her maladaptive pain coping.

14. It is apparent that Dr Ho attributed the applicant’s chronic bilateral knees pain to two things: right knee meniscal tear and chondral injury (primary injury) and a secondary injury of accelerated osteoarthritis of the left knee due to kinetic chain disorder and asymmetrical loading after the primary injury. He described that diagnosis as the applicant’s chronic pain syndrome.

15. After the two work injuries, the applicant had surgery, paid for by Comcare.  In 2007 she had a right knee arthroscopy and excision of chondral fragment under the care of her orthopaedic surgeon Dr Chen. See also the report of Dr Chen dated 23 July 2007 at T4 page 20.

16. The applicant’s employment was terminated in February 2008.  There are intermediate reports by Dr Chen as to the applicant’s progress with both knees at T4 pages 22 -25. On 29 July 2008, the Applicant underwent a left knee arthroscopy and microfracture of the left femoral condyle under the care of Dr Chen; the respondent paid for this procedure as well. Her progress as at October 2008-February 2009 is reviewed by Dr Chen at T4 pages 26-29.

17. On 5 May 2009 the applicant underwent a repeat left knee arthroscopy under the care of Dr Chen, again at the expense of Comcare.  Post-operative visits to Dr Chen in 2009 are recorded at T4 pages 30-31 in 2009 and at T4 page 34 in 2010.

18. There are further reviews by Dr Chen at T4 page 32 from 2013 and at T4 page 33 from 2016.

19. Dr Richmond wrote a statement and gave oral evidence.

20. Rather than describing her condition in 2022 as chronic pain syndrome (as did Dr Ho), she describes the applicant’s condition as post-surgical following bilateral knee arthroscopy.  She said the applicant also suffers from bilateral osteoarthritis. Asked another question set out below, she answered that question as follows;

    Question 2: Whether you consider that Ms Berkes’ condition was caused by or contributed to, to a significant degree, by the incidents on 20 June 2007 and 31 December 2007.

    Yes, her persistent post-surgical pain was caused by the workplace injury. She had no symptoms of pain prior to the injuries and some initial improvement in her pain following the initial arthroscopy, but return of more severe pain shortly after the procedure. She was physically very active, playing tennis and squash, both sports that place considerable strain on the knees.

21. Dr Richmond had Dr Ho’s report and refers to it on occasion.

22. Mr Gollan for the respondent put to Dr Richmond a view which is prominent in Dr McGill’s report that the cause of the applicant’s pain was osteoarthritis. She replied to that, at Tr 50 lines 20-24, by saying that her changes on initial imaging were very mild degenerative changes that you could see in the majority of people her age who are asymptomatic. At Tr 51, the last two answers of Dr Richmond’s oral evidence, the answer at lines 37-40 refers to reports of ongoing pain, swelling, erythema etc.  by the GP. In the final answer on page 51, she said that, up until the points of injury, the applicant was dancing, playing squash, and horse riding, and the like.  She added that someone who has significant osteoarthritis of the knee would not be playing squash or horse riding. At page 52, Dr Richmond disagreed with arthritis as a cause of pain in 2007. That evidence was repeated by the witness later in the cross-examination at Tr 56 and 58.

23. I think it is fair to say that Dr Richmond was not asked questions about the references in her written report to the pain being post-surgical following arthroscopy.  Because the thrust of the cross-examination may have been about the view of Dr McGill as to the osteoarthritis being the cause of the applicant’s pain after 2007; there was particular occasion for Dr Richmond to refer to her view that it was post-surgical pain, unless she were asked questions about the written report she made.  It was referred to in the cross-examination, only in passing at Tr 57 lines 30-38, in which Dr Richmond notes that 30% of females and 29% of males, in the year after surgery, have post arthroscopy pain.

24. Dr Chen’s report state that he expected that, in the future, the applicant would require bilateral knee replacements. The applicant has been reluctant to date to undergo such surgery and has not yet done so. Dr McGill comments in his report at page 79 that MRIs of 2016 indicate osteoarthritic changes less severe than most people requiring knee replacement.

25. It is next convenient to refer to the evidence of Dr McGill.

26. Dr McGill’s statement at R1 attributes the first 2007 workplace injury to an exacerbation of the symptoms related to pre-existing osteoarthritis, and the second injury to be entirely related to constitutional osteoarthritis, except possibly for a three-week period.  He thinks the applicant is right to wait until her symptoms worsen before having knee replacement surgery (page 80). His report at R7 contains some commentary on Dr Richmond’s report of 15 February 2022. At page 154, he says that he does not agree with the diagnosis of persistent post-surgical pain, and says that the persistent pain she suffers is because of osteoarthritis.

27. Dr McGill characterises the surgery performed in 2007 as surgery for osteoarthritis, adding that microfracture is treatment for osteoarthritis. Dr McGill was not cross-examined by Mr Mr Mrsic: Tr 102 on 13 July 2023.

28. In those circumstances I accept Dr McGill’s evidence where it is uncontradicted by other oral evidence. This extends to the evidence I have mentioned in [27].

29. As to the conflict between Dr Richmond and Dr McGill, on the description of the pain suffered by the applicant being post-surgical pain, I prefer the evidence of Dr McGill, who appears to be better qualified to express that contrary opinion, and also because Dr McGill was not cross-examined.

30. It follows that the respondent succeeds on the reviewable decision dated 6 November 2019, originally described as chronic pain syndrome, now reformulated as a result of the report of Dr Richmond.

    2020/4933

31. The second reviewable decision similarly falls away because a pain management program to assist with an ailment which fails the tests in s.5B of the Act is similarly not compensable under s.16 of the Act.

    2021/0311

32. The third reviewable decision relates to the putative mental health condition referred to in the report and evidence of Dr Martin Allan.

33. Dr Allan called by the applicant gave cogent evidence as to mental health problems of the applicant, stemming from pain she experienced. Dr Allan’s evidence depended, as did the second reviewable decision on the applicant having suffered pain as described in Dr Ho’s report.  For the Tribunal, it makes no difference whether Dr Ho’s report or Dr Richmond’s report is correct, because neither report can satisfy the Tribunal since the report of Dr McGill trumps both reports. If the pain and the surgery is, as Dr McGill affirmed, not an ailment that was contributed to, to a significant degree, by the applicant’s employment by the Commonwealth, as required by s.5B of the Act, then neither are compensable under the Act. The ailment was caused, according to Dr McGill’s evidence which for reasons already mentioned I find to be correct, primarily by her osteoarthritis, which, again according to Dr McGill, provoked the arthroscopy surgery carried out by Dr Chen, a matter not expressly discussed in Dr Chen’s reports.

34. Since Dr Allan’s deferred to Dr Ho on those matters, his evidence does not assist the applicant on the second reviewable decision, which also should be affirmed. Mr Mrsic did not cross-examine Dr Ventura, a psychiatrist who took a different view to Dr Allan. That is a matter of no moment in the case because it is not necessary to consider the merits of Dr Allan’s opinion.

    DECISION

35. The detailed findings I have made are not confronted by any submissions of the applicant in final submissions.  I heard the respondent’s oral submissions in support of its case on 10 May 2024, but the applicant relied upon the written submissions.  The applicant submitted that Dr Richmond’s evidence should be accepted in preference to the evidence of Dr McGill. The opinion of Dr McGill, as an experienced rheumatologist and whose evidence was received without objection, is entitled to consideration by the Tribunal in my opinion. The applicant suggests that because he is not a pain specialist, his evidence ought to be rejected by the Tribunal or put to one side. I reject that submission and for reasons already given, which include the failure of the applicant’s representative to cross-examine him, I have preferred his evidence to that of Dr Richmond for other reasons mentioned earlier.  While accepting that the evidence of Dr Ho may be entitled to less weight because he was not called by the applicant, perhaps because of his unavailability, despite the applicant’s submissions, I have treated the evidence of Dr Richmond as preferable to that of Dr Ho in any event. It is the evidence of Dr McGill which has assisted me most of the three witnesses, including Dr Ho and Dr Richmond.

1. Each of the three reviewable decisions will therefore be affirmed.

I certify that the preceding 36 (thirty-six) paragraphs are a true copy of the reasons for the decision herein of Deputy President B W Rayment OAM KC

............................[SGD]............................................

Associate

Dated: 26 June 2024

Date(s) of hearing:	3 November 2021; 14, 15 December 2022; 13 July 2023; 10 May 2024
Date final submissions received:	27 May 2024
Counsel for the Applicant:	Mr J Mrsic
Solicitors for the Applicant:	Ms M Sawa, Grieve Watson Kelly Lawyers
Counsel for the Respondent:	Mr M J Gollan
Solicitors for the Respondent:	Mr B O'Brien, Moray & Agnew Lawyers