Black and Comcare (Compensation)

Black and Comcare (Compensation) [2020] AATA 929 (21 April 2020)
Division:General Division
File Number(s): 2017/6131
Re:Anthony Black
APPLICANT

ComcareAnd
RESPONDENT

DECISION
Tribunal:Member M O’Loughlin & Member D Ben-Tovim
Date:21 April 2020
Place:Adelaide

The Tribunal orders that the decision of Comcare dated 21 September 2017 is set aside and substituted with orders:
1.That the respondent is liable to pay the applicant compensation under sections 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988 (“the Act”) in respect of his bursitis (right) condition which is a continuation of the injury that he sustained on 12 September 2008.
2.That the respondent is liable to pay the applicant compensation under sections 16 and 19 of the Act in respect of his adjustment disorder with depressive reaction.
3.That the respondent pay the applicant’s legal costs and disbursements of this application.

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M O’LOUGHLIN
(Presiding Member)

Catchwords
COMPENSATION – Workers’ Compensation – whether applicant continues to suffer from accepted conditions – assessment of expert medical evidence – decision under review set aside and substituted with a decision that applicant continues to suffer from accepted conditions.
Legislation
Safety, Rehabilitation and Compensation Act 1988
Cases
Prain v Comcare [2017] FCAFC 143
Commonwealth of Australia v Snell [2019] FCAFC 57
REASONS FOR DECISION
21 April 2020
MEMBER M O’LOUGHLIN & MEMBER D BEN-TOVIM

This is an application for review of a 12 September 2017 decision of the respondent, Comcare, to affirm a decision that it had no ongoing liability to the applicant for medical expenses or incapacity payments under section 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988 (“the Act”).
Historically, the applicant sought compensation under the Safety, Rehabilitation and Compensation Act 1988 (“the Act”) for injuries suffered in a fall on 12 September 2008 and for the sequelae of those injuries. On 18 June 2009, the respondent accepted liability to the applicant for a bursitis disorder (right). The applicant’s subsequent claim for a secondary ‘adjustment disorder with depression’ was accepted by the respondent in the course of Tribunal proceedings regarding the 18 June 2009 decision.
The issues for determination in this application are, broadly, whether the respondent remained liable to the applicant in respect of the previously accepted conditions of bursitis disorder (right) and ‘adjustment disorder with depression’ as at 12 September 2017. Those questions essentially turn on whether the Tribunal prefers the evidence of the applicant’s or respondent’s medical witnesses.
EVIDENCE
The applicant’s evidence in chief was essentially contained in his signed statement of 6 June 2019.[1]
[1] Exhibit A8.
The applicant’s evidence is that he was born on 18 June 1966 in Mount Gambier. He went to school until year 11 when he took up a traineeship at Coles supermarkets.
In about 1989 he started work as a trade assistant for a panel beater and ultimately worked painting cars, commercial vehicles, and equipment.
He did this in various roles but was generally self-employed or working on a casual or contract basis. It appears that he continued to work as a spray painter until 2007. He had been operating his own business until 2003 and he did some casual labouring work as well as spray-painting from 2003 to 2007.
In January 2008, he started working for the Australian Taxation Office (“ATO”) in a clerical position on contract. This contract continued until 29^th of January 2010. When it was not renewed he accepted a further casual contract on 25 February 2010 which ran until 24 February 2011.
THE FALL
The applicant said in his statement that on 12 September 2008 while he was working at the ATO he rolled his chair backwards on its casters, lost balance, and fell.
He says that he fell backwards and landed on his right shoulder and on his neck. He said that he felt pain and restriction of movement, especially with his right shoulder, but that he continued to work.
Eventually, because the pain did not improve, he sought treatment from a physiotherapist on 4 November 2008 then later that month from his GP.
He was sent for an ultrasound and understood that it revealed bursitis for which he received an injection on 28 November 2008. He understood that it was an injection of cortisone and reported that he enjoyed about 2 weeks’ relief.
He continued working despite the return of his pain and in March 2009 he went for further physiotherapy.
He had been referred to an orthopaedic surgeon whom he saw in May 2009 and at about the same time, on 5 May 2009, he claimed compensation from the respondent by submitting an online form.
He said that he had been reluctant to pursue compensation and that up until then he had tried to meet his own medical expenses and had taken annual leave rather than sick leave to recover from the cortisone injection.
He said that he understood the orthopaedic surgeon diagnosed him as having a posterior superior labral tear and sub-acromial bursitis.
The applicant said, and it does not appear to be controversial, that on 18 June 2009 the respondent issued a determination accepting liability for “bursitis disorders”.
In about June 2009 the applicant was offered surgery although he decided against it as the treating orthopaedic surgeon, Mr Bain, did not believe it was likely to be effective.
At the time the applicant reported that the pain was worsening and becoming unbearable. He said that any movement of his right shoulder caused pain. He said that he had the opportunity to take up alternative employment with his brother as a trade assistant which was appealing given that his contract was to end on 29 January 2010. The applicant said that his injuries were such that he was unable to take up that offer of work.
He saw Dr Bain again on 25 January 2010 and elected to have surgery. In the meantime he got the offer of some casual work from the ATO and, because he was familiar with the duties and regarded them as light, he accepted that offer.
On 16 March 2010 he had surgery on his right shoulder and then had 5 weeks off work to recover. He reported difficulty returning to his normal work and in particular that moving his arm between the mouse and keyboard was painful. He said the pain sometimes extended into the neck and back and that he also suffered headaches.
He had further therapy and a workplace assessment resulting in him being given a left-hand mouse.
In late October 2010 he saw Dr Bain again and was told that it could be 1 or 2 years before he recovered fully.
He also said that he had been suffering from some pain in his right hand which he compared to writer’s cramp. He said that this had become worse since the surgery and he was sent for physiotherapy.
The applicant explained that he occasionally had difficulties with ordinary day-to-day activities involving the right shoulder but noted that over the 2010 Christmas break his shoulder pain began to settle.
He said that when he returned to work on 10 January 2011, the right shoulder pain had returned by halfway through the 1^st day. He submitted a further online report and some adjustments were made to his workstation, although the applicant did not assess these as being of much help.
The applicant said that on 21 February 2011 he was advised that his contract would not be extended beyond 24 February 2011.
He reported that there had been some tension between his supervisor and himself arising from difficulties he had with some of the work. He believed that in about September or October 2010 his supervisor began viewing his work negatively.
He said that he was having difficulty concentrating due to the pain and restriction in right arm movement and that he began to feel stressed and insecure about his job.
He said that in a meeting with his supervisor at about the time he was advised that his contract would not be renewed, he was told that his poor productivity and argumentative attitude had contributed to the decision not to renew his contract.
The applicant said that since he left the ATO on 24 February 2011 he had tried to do a little work and had begun to suffer left shoulder symptoms. He thought they were due to his efforts to compensate for his right shoulder pain, but in any event they subsequently resolved.
The applicant also says that it was about this time he started to suffer what he believes were symptoms of a psychological condition.
He said that he suffered from pain in his right arm and hand and from further left shoulder symptoms in 2011 but that the right shoulder remained his most significant problem. He consulted several medical practitioners including Dr John Meegan and a new GP, Dr Vinci.
The applicant said he had also sought treatment in the form of chiropractic and physiotherapy which had offered some relief but which were expensive and which he has not been able to afford since the suspension of the payment of his medical expenses by the respondent.
Dr Bain considered further surgery but decided that it was unlikely to help so that was not pursued.
The applicant said that he has reached the point that his right shoulder pain is provoked by a small movement of the right shoulder and is almost constant.
In relation to his psychiatric condition the applicant said that he first saw a psychologist, Mr Homer Zeitz, on 25 July 2013. Mr Zeitz expressed the opinion that the applicant was suffering an adjustment disorder with depression as a result of his shoulder injury.[2]
[2] Report Homer Zeitz September 2013 exhibit A1 – T documents page 113 at page 116
In December 2013 the applicant expanded his claim to include the left shoulder problems and a psychological condition.
The applicant gave clear evidence that he associates his psychological difficulties with his shoulder injury although he concedes that the occasional right arm problem may represent a contributing stressor.
Further the applicant believes that his lack of working capacity, which he says arises from the right shoulder injury, is a significant contributor to his psychological problems.
The applicant says in his statement that he tried anti-depressant medication but that the effect was limited and he did not persevere.
The applicant said that in the time that he has been unable to work, he has tried to generate some income by restoring and selling cars but that the restriction of shoulder movement has meant that he is unable to do much of that work.
The applicant also refers to doing some voluntary work with Meals on Wheels which he does once a week in an effort to remain active and which he finds rewarding.
In his statement the applicant said that the right shoulder limitation restricted him from working on a computer using a keyboard and a mouse or for extended periods using a telephone.
He said that he can only operate a computer for a short time and notes that at the time of the original accident all of his work was computer-based.
He said that he had experimented using a mouse with his left-hand but that this was not successful and that the roller mouse that have been provided to him had not eliminated the use of his right shoulder.
The applicant complains that when he tries to work for any extended period at the computer, he gets back spasm which sometimes radiates to his neck, and also headaches and fatigue.
He also complained that anything involving lifting of weight with his right shoulder was restricted.
In his statement the applicant says that since his work with the ATO finished (which the Tribunal takes to mean 24 February 2011) he has applied for many jobs mainly with the public service but with many other potential employers as well. He was particularly active in jobseeking when he was reliant on Centrelink and was obliged to apply for a minimum of 12 jobs per month.
He said that those applications were never successful and he was regularly given exemptions because of his incapacity and because he had applied for a Disability Support Pension.
The applicant described three different occasions on which he has undertaken work.
The first was in about June 2012 when he worked as a spray painter for about 5 weeks when a friend suffered an injury in an accident and asked him to run his business temporarily.
The applicant was ultimately unable to manage the physical demands of the work despite employing various coping mechanisms. He also said that the work he was able to do was below standard and had to be redone.
The applicant said that he had had other offers to work painting vehicles, but did not accept these offers because he is not capable of doing the work.
The second occasion was for about 20 hours in about June or July 2013. This was casual work folding and posting group certificates. The applicant said that he doubted his capacity to do the work but accepted the offer because he was desperate for something and further was concerned that refusing it would jeopardise his Centrelink payments.
He said that his condition was aggravated by the work and that if there had been much more than 20 hours, he does not believe he would have been able to do it.
Finally the applicant referred to 4 weeks’ work with the Australian Electoral Commission in September 2013 counting ballot papers.
Again, the work was mostly fairly light but it was repetitive and involved arm movements and the applicant found that it tended to aggravate his symptoms.
In his statement the applicant concludes that he is unlikely to return to ordinary paid employment due to his shoulder restrictions.
In relation to the ordinary activities of life the applicant says that he has problems with anything involving shoulder movement or heavy lifting including overhead activity, reaching, driving, and cleaning.
He repeats that prolonged sitting at a computer will aggravate the shoulder as will gardening and like activities.
He says that he also has problems with hanging out washing, carrying shopping, preparing food, and washing the car.
He says that he has to do some of these activities despite the fact that they aggravate his shoulder and that he sometimes uses a brace which can help but which is uncomfortable and hot.
In respect of his mental health he says that he is frustrated and anxious. He says he gets concerned about money and that he is much less sociable than he used to be.
He also says that his concentration is impaired and he makes simple mistakes. He says that he now tends to procrastinate and has problems with motivation.
At the hearing the applicant, by way of evidence in chief, added to his statement that he had not suffered from right shoulder pain before the accident on 12 September 2008 when he fell from his chair at work.
Under cross examination the applicant said that his work at the ATO involved data processing and answering the telephone.
He was asked about his low back problems and said that they would not stop him from doing office work. Similarly although he does have occasional problems with his left shoulder he said that that would not stop him from working.
He was also asked about dystonia in his right arm and said that if he needs to write that can be a problem but that it does not stop him from using a keyboard. He said that sometimes he gets symptoms when using a screwdriver as well.
In particular he said that the dystonia had not affected his work at the ATO as little writing was required. He did say that the dystonia sometimes prevents him from using a screwdriver so presumably if he were ever to contemplate employment that involved using a screwdriver, the dystonia may be a consideration.
He also said that he understands that he has been diagnosed as suffering an adjustment disorder and he believes that that is the cause of his problems with self-confidence and memory.
It was put to the applicant that in 2011 he had told Dr Martin Robinson that he had built a shed using power tools, a history that was presumably taken from his report of 28 November 2011.[3] The applicant agreed that he had had a fairly large shed built by contractors but that he had not done construction work himself and he didn’t use power tools. He said that he had occasionally used a small angle grinder in the shed to work on cars.
[3] T Documents, exhibit A1 page 62
He said that he had used the grinder for 2 or 3 hours per day in late 2011.
He agreed that he had also done some welding but said that he did not do spray painting as he was not able to.
He was asked about painting at home and he said that he had only done door frames and interior painting in about 2016. Again, he said that he did about 2 or 3 hours per day and that he could not do more because of shoulder pain. He said that this work did not cause him problems with the dystonia and that he did it using a roller and paint brushes.
Counsel for the Respondent put to the applicant that his right shoulder condition improved considerably during the period late 2013 to April 2014, particularly when he was seeing a chiropractor, Dr. Condon. The applicant agreed that the symptoms would sometimes ease but did not agree that his condition resolved.
He agreed that he reported to Dr Condon in late January 2014 that the “Dull ache” is “almost gone” and on 24 April that his condition was “the best it has been”.
He did not agree that by May 2014 he was no longer seeing the chiropractor for the shoulder condition but for the dystonia and the back pain. He did agree that those were the conditions that were foremost in his mind at that time.
The applicant was also asked whether he was undergoing any ongoing treatment and said that he had been doing theraband exercises, particularly when recovering from surgery, but they had aggravated his shoulder so he had discontinued. He said that his physiotherapist encourages him to continue these exercises but whenever he tries it aggravates the shoulder.
The applicant was cross-examined about his mental health. He said that he had tried antidepressant medication and that the longest he had persevered was 2 to 3 months. He said that at the time of the hearing he recommenced a trial of antidepressants and was noticing some side effects. He recommenced on the advice of Dr Blackmore.
The applicant said that the main problem with the antidepressants was sleeplessness.
MEDICAL EVIDENCE
Mr Homer Zeitz
Mr Zeitz is a psychologist who had seen the applicant and provided reports dated September 2013, 6^th of July 2017, and 7^th of August 2017. [4]
[4] Exhibit A1, T documents pages 113-118, 257, and pages 273 to 274 respectively.
Mr Zeitz had first seen the applicant on 25 July 2013 on referral from his GP, Dr Vinci. He continued to see him thereafter and had most recently seen him in the week before he gave his evidence on 19 June 2019.
He said that the plaintiff’s symptoms had not changed since July 2017.
He adopted his reports save that in his report of 7 August 2017 the reference to “medication” should read “depression” and the word “shoulder” in the 5^th line of the last paragraph of the report should read “dystonia”.
Under cross examination Mr Dart confirmed that he believed the applicant had hurt his shoulder in 2008 and developed an adjustment disorder as a result.
He said that he could not say whether or not the applicant’s unrelated conditions may have provoked an adjustment disorder absent the injury of 2008 but he effectively said that he saw that as unknowable because the applicant did suffer an injury and that injury did provoke the adjustment disorder.
Mr Zeitz agreed that a significant component of the applicant’s adjustment disorder manifested as depressive symptoms. He was less inclined to agree that the applicants reported difficulty with perseverance was secondary to the adjustment disorder and said that that was also associated with the applicant’s physical problems.
Mr Zeitz was taken through his notes which had been summonsed by the respondent.[5] He agreed that he saw the applicant on 20 November 2013 and did not see him again until 21 July 2014. He said that he did not know why there had been such a long gap between consultations. He did not remember obtaining a history that the shoulder symptoms had improved considerably by 21 July 2014.
[5] Exhibit R1 records of Mr Zeitz 25th of July 2014 to 7 December 2017.
Drs Meegan and Munn

The applicant called Dr Meegan and the respondent called Dr Munn to provide expert medical evidence in support of their respective cases. The doctors gave concurrent evidence having provided reports that were before the Tribunal. Both doctors are occupational physicians and were retained to provide opinions in relation to the physical effect of the accident of September 2008. In the case of Dr Meegan, his earlier reports were contained in exhibit A1 and were dated 19 July 2012,[6] 17 October 2014,[7] 15 January 2015,[8] 2 February 2016,[9] and 27 October 2017.[10] He provided a further report dated 30 May 2019 that was tendered separately together with the letter seeking the report.[11]
[6] Exhibit A1 pages 95 and 96.
[7] Exhibit A1 pages 142 to 145.
[8] Exhibit A1 pages 155 to 157.
[9] Exhibit A1 pages 188 to 190.
[10] Exhibit A1 pages 286 to 289.
[11] Exhibit A4.
Dr Munn’s earlier reports and the letters requesting them were included in exhibit A1. The reports were dated 24 April 2017 (one report addressed to the respondent[12] and one addressed to the ATO,[13] both of the same date), and 9 June 2017. [14]
[12] Exhibit A1 pages 206 to 216.
[13] Exhibit A1 pages 229 to 238.
[14] Exhibit A1 pages 252 to 254.
He also provided a report dated 14 March 2018 which was tendered together with the letter from the respondent requesting it and marked exhibit R2.
The doctors were asked to provide their opinions as to the diagnosis of the applicant’s right shoulder condition, to comment on causation, prognosis and treatment for his condition, and discuss residual capacity for work.
The parties confirmed that the doctors had been advised that these would be the issues in discussion and have been given the opportunity to discuss those areas with each other.
Dr Meegan gave evidence that the applicant had complained of right shoulder symptoms since he had first seen him, although these symptoms have varied and there were periods with no problems at all. Despite that, Dr Meegan was of the view that the fall in 2008 was the most likely explanation for the applicant’s shoulder problems. He said that he believed that a labral tear was demonstrated on some imaging.
Dr Meegan said the shoulder injuries caused restrictions on overhead lifting although he felt that some limitation arose from the dystonia which he appeared to accept was unrelated to the fall.
On prognosis, Dr Meegan was of the opinion that the applicant will continue to have similar symptoms and he did not believe that further treatment is likely to help.
Dr Munn said that the applicant’s presentation to him was different. He said that the imaging available to him when he first saw the applicant had not been updated since 2009 and was 8 years old. The Tribunal notes that Dr Munn saw the applicant on 29 March 2017 according to his report of 24^th of April 2017.
The applicant told him at that stage that he was generally pain-free. Dr Munn believes that the applicant was suffering from deconditioning as a result of not working. Dr Munn’s opinion was that the applicant’s reported symptoms suggested functional limitation consistent with a pain syndrome rather than any physical problem.
He accepted that the applicant may have had bursitis for a period resulting from the fall but he did not relate the ongoing incapacity to bursitis.
In relation to capacity for work, Dr Munn did not believe that a degree of bursitis would restrict the applicant from pursuing clerical work of the type that he was doing at the time of the accident. Regarding prognosis Dr Munn said that he would normally expected to settle in 6 to 12 weeks but that in the face of the applicant’s ongoing complaints he did not believe that the condition was likely to improve or that there was any surgery or other treatment that was likely to offer improvement.
Dr Munn believes that it was appropriate to continue with strength and conditioning of the rotator cuff and simple analgesia.
Dr Meegan made it clear that he believed that the imaging should be considered in the context of the history and should not be treated as the “be all and end all” of diagnostic tools. He also emphasised that he did not believe that all cases of bursitis settled within 12 weeks. Dr Meegan said that shoulders are complex joints and beside this can cause recurrent problems.
Dr Munn said that he did not really disagree with Dr Meegan in this, and that an uncomplicated case of bursitis would usually resolve in 6 to 12 weeks but that can blow out.
In relation to Dr Meegan’s comments about the use of imaging, Dr Munn agreed that imaging should be used to inform a clinician when a diagnosis has been arrived at to test the accuracy of the diagnosis. He said that imaging is sometimes used to save history taking time and he does not believe that that is appropriate.
He further said that after about the age of 40 years there is a high level of non-symptomatic bursal thickening which may further bring into question the usefulness of imaging. He agreed with the proposition that imaging is best treated as part of an assessment rather than being an alternative to assessment.
In discussion, Dr Meegan agreed that early imaging appears to have provided a false positive for a labral tear but that he had seen the applicant on a number of occasions since 2012 and was of the view that the complaint suggested recurrent bursitis.
Dr Meegan referred to an ultrasound report of 7 May 2019[15] which noted features consistent with subacromial bursitis and rotator cuff impingement.
[15] Exhibit A7.
Dr Munn agreed with the proposition put to him by the Tribunal that at the time of the applicant’s surgery (in early 2010) the clinical picture and diagnostic imaging suggested that it was appropriate to investigate repair of a labral tear.
He said that given that it ultimately transpired that the applicant did not have a labral tear, different imaging may have suggested that the surgery was not warranted. He did concede that it was unlikely that the surgery would have proceeded had it not been for the injury.
Although Dr Meegan accepted the applicant’s history and attributed it to traumatic changes to the shoulder related to the applicant’s fall, Dr Munn thought that the applicant’s self-reported restriction exceeded what might be expected although he accepted the applicant was being truthful in his history.
The doctors were asked, accepting that the applicant made complaints consistent with bursitis in 2008 and again in 2017, what they would need to see to conclude the episodes of bursitis were not related.
Dr Meegan said that he thought a period of being asymptomatic (which he distinguished from being uncomplaining), particularly an extended period, would suggest two separate incidents. Dr Munn on the other hand thought that the circumstances in which the pain occurred might be more helpful.
The Tribunal observes that Dr Meegan saw the applicant more regularly than Dr Munn and that although the history as provided to Dr Munn may have suggested an extended period without symptoms, this appears to have been a coincidence and that Dr Munn happened to see the applicant at times when his symptoms were not troublesome. There is no dispute that the symptoms waxed and waned.
Drs Blakemore and Hundertmark
Dr Blakemore is a psychiatrist who provided the applicant with reports dated 21 February 2018[16] and 22 May 2019[17] .
[16] Exhibit A2.
[17] Exhibit A3.
Dr Hundertmark is a psychiatrist who saw the applicant at the request of the respondent and provided reports dated 24 April 2017 (one report to Comcare[18] and one report to the Australian Taxation Office[19], both reports of the same date), and 18 July 2018[20] .
[18] Exhibit A1 page 217.
[19] Exhibit A1 page 239.
[20] Exhibit R4.
The applicant called Dr Blakemore, and the respondent called Dr Hundertmark in support of their respective cases. The doctors gave their evidence concurrently.
Dr Hundertmark said that he diagnosed the applicant as suffering an “unspecified depressive disorder” and said that although he prefers that terminology to “adjustment disorder” which was used by Dr Blakemore, he thought that the two diagnoses were very similar.
Dr Hundertmark said that he thought the most important difference between his opinion and that of Dr Blakemore was that Dr Hundertmark believes the condition to be minor and Dr Blakemore does not.
He noted that neither he nor Dr Blakemore had diagnosed a pain syndrome and he did not believe that a personality disorder could be an appropriate diagnosis either.
He believed that there were several contributors to the applicant’s psychiatric presentation including dystonia, a back injury, the shoulder injury, and other factors such as the loss of role identity since leaving work and phobic avoidance of the former workplace.
He did not believe that the shoulder injury was a substantial factor in the applicant’s minor depression.
Dr Blakemore believed that the causation was predominantly pain and incapacity arising from the shoulder injury, although there may have been minor contribution from the back injury. He maintained his diagnosis of chronic adjustment disorder and depressed mood and noted that it has been severe from time to time and included suicidal elements although generally it is correct to describe it as a minor depressive disorder.
He did not believe that the applicant could be described as suffering from a pain syndrome or demonstrating abnormal illness behaviour given that he understood that there was an underlying shoulder injury and that the applicant was suffering from shoulder pain.
Dr Hundertmark referred to page 6 of his report of 24 April 2017 to Comcare[21] and repeated his observation in the last paragraph that the applicant’s presentation suggested a greater level of pain than the physical pathology suggests would be appropriate. He said to that extent the applicant is demonstrating abnormal illness behaviour.
[21] Exhibit A1 page 217
Dr Blakemore indicated that he and Dr Hundertmark had discussed the question of abnormal illness behaviour and Dr Blakemore did not agree with Dr Hundertmark because it is not possible objectively to assess the level of pain that the applicant was suffering.
It appears that Dr Blakemore was content to rely on the history provided by the applicant and Dr Hundertmark was not.
Dr Blakemore was asked how he was able to attribute the bulk of the applicant’s psychiatric presentation to the shoulder injury. He said that the history he obtained was that the shoulder injury is what prevents the applicant from doing things. He said that the other problems did not present as causing anything like the same disability.
Dr Hundertmark noted that the history he obtained was different to the history provided to Dr Blakemore particularly in relation to the seriousness of the shoulder injury in comparison to the other physical problems.
The doctors agreed that neither of them denied the existence of some psychiatric disorder and Dr Hundertmark said that the main difference in their views was the Dr Blakemore regarded the psychiatric disorder as major whereas Dr Hundertmark regarded it as minor.
In considering Dr Hundertmark’s assessment of the applicant’s physical condition the Tribunal asked him whether he believed that it was common to have surgery after a fall from a chair or whether the fact of surgery would suggest that the fall had had some significant consequence.
Dr Hundertmark expressed the view that surgery after such a fall is unusual but he tempered this by expressing the view that bursal problems are more commonly diagnosed and operated on in South Australia and elsewhere. He said that colleagues who are occupational physicians had given him reason to understand that shoulder surgery is more frequently done in South Australia than in other places and that this could be reduced if more consideration was given psychiatric aspects of presentation before surgery.
Dr Hundertmark was asked whether that understanding had played a part in his assessment of this matter and he agreed that it had.
He was asked whether he had had access to the MRI report of 6 May 2009[22] which suggested a dislocation of the shoulder in the fall and a ligamentous tear as a result. On being asked whether, given that context, he would have dismissed the applicant’s condition as likely psychogenic shoulder pain Dr Hundertmark replied that he understood from another doctor’s comment that the soft tissue injury was probably not significant and that he did not consider it his place to look at imaging and comment on surgery.
[22] Exhibit A1 pages 11 and 12
Dr Hundertmark maintained his view that certain conditions are over diagnosed in South Australia.
Dr Blakemore, on being asked to comment, said he believed that there is room for a range of views and that he preferred to concentrate on matters within his area of expertise being psychiatric disorders.
The doctors were asked whether there was evidence of psychiatric problems predating the subject accident.
Dr Blakemore said that there was no indication of prior psychiatric problems. Dr Hundertmark wondered whether there may have been a pre-existing psychiatric problem but did not say that there was evidence of one.
The Tribunal noted that there appears to be a difference in the opinions of the doctors as to potential self-harm. Dr Blakemore expressed the view that this may be due to a difference in history and that Dr Hundertmark was not told that the applicant had had suicidal thoughts.
In relation to future treatment Dr Blakemore repeated the view he had already expressed to the applicant that consideration should be given to a further trial of antidepressant medication at a higher dosage. He also thought that supportive psychotherapy such as that provided by Mr Zeitz could be extremely valuable although it was unlikely that the applicant is well enough for such therapy to become goal orientated.
Dr Blakemore further expressed the view that although the applicant is capable of work from time to time any worsening of his physical state, such as might be anticipated if he returned to physical work, would probably aggravate his emotional state. Dr Blakemore believed that the applicant is unemployable in practical terms.
Dr Hundertmark thought that Mr Zeitz may not be the most appropriate treating psychologist and that a clinical psychologist would be more appropriate.
Dr Hundertmark did agree that a further trial of an antidepressant, such as suggested by Dr Blakemore, was appropriate but thought that structured therapies (by which he presumably meant goal orientated psychotherapies) were more appropriate and should aim to return the applicant to the workforce.
ISSUES
By way of background the Tribunal notes that there had previously been disputes about the respondent’s liability to the applicant.
On 17 February 2016 the parties consented to orders that relevantly meant that the respondent accepted liability to pay compensation for incapacity under section 19 of the Act in respect of the applicant’s right shoulder bursitis and also to pay compensation to the applicant pursuant to section 14 of the Act in respect of “adjustment disorder with depression” with a date of injury deemed to be 25 July 2013.
The effect of that was that the respondent agreed that it was liable to paycompensation for medical expenses and incapacity in relation to the applicant’s bursitis condition and compensation in accordance with the Act for an adjustment disorder with depression.
The respondent’s decision of 21 September 2017 was relevantly that the respondent is not liable to pay the applicant compensation under section 16 or section 19 of the Act in respect of either his bursitis disorder (right) sustained on 12 September 2008 or his adjustment disorder with depressive reaction. Payments of compensation to the applicant were stopped on 24 August 2017.
Counsel for the respondent submitted that the most important question for the Tribunal to answer is does the applicant continue to suffer from the effects of the accepted conditions (being the bursitis and the adjustment disorder with depression)?
Counsel submitted that the proper answer to this question is “no”. The respondent says that the applicant’s current shoulder problem is not related to the fall in 2008 and that his employment at the Australian Taxation Office is therefore not making a significant contribution to his current bursitis.
The respondent further submitted that the ongoing psychological condition is caused (or substantially contributed to) by the applicant’s physical condition. The respondent effectively submits that if the physical condition is not relevantly related to the applicant’s employment, the psychological condition cannot be either.
On the other hand the applicant submits that he is entitled to payments of compensation for the bursitis condition and the anxiety disorder with depression which is caused by the bursitis condition.
The respondent submitted that Dr Meegan, on whose evidence the applicant relies, was asked what evidence would suggest to him that the bursitis from which the applicant was suffering in August 2017 was not a continuation of the bursitis from 2008 but was a new condition. The respondent noted that Dr Meegan had said that in order to say that the right shoulder bursitis complained of in 2017 was unrelated to the bursitis in 2008 he would consider whether there was a period during which the applicant was asymptomatic. The respondent submitted that there was such evidence available to the Tribunal.
The Tribunal observes that when Dr Meegan said “asymptomatic” he distinguished that from “uncomplaining”. He clarified that he meant that if the applicant reported the resolution of symptoms for an extended period it would suggest resolution of the condition.
Dr Meegan did not give evidence that he had such a history from the applicant. Dr Meegan did not resile from his opinion that the bursitis from which the applicant was suffering in August 2017 (and from which he continues to suffer) was related to the fall in 2008.
To the extent that Dr Munn holds the view that the bursitis from which the applicant was suffering in August 2017 was a new condition, the Tribunal notes that both Dr Munn and Dr Meegan agreed that there was a variety in the histories obtained.
The evidence of the applicant was that his symptoms tended to wax and wane which is not surprising.
There was no convincing attack on the applicant’s credit nor is it suggested that his history regarding symptoms was unreliable.
Doctors Munn and Meegan agreed the differences in presentation by the applicant when he was assessed were significant, and in particular the restriction in range of movement complained of to Dr Munn was less than that complained of to Dr Meegan.
The Tribunal notes that Dr Meegan saw the applicant on several occasions from 19 June 2012 to 30 May 2019 and in that context believed that there was sufficient consistency of symptoms to relate the bursitis to the fall in 2008.
The Tribunal notes that Dr Munn saw the applicant once although he did have access to documents setting out the applicant’s complaints of symptoms. It is not a criticism of Dr Munn that he chose to rely on his own findings based on his examination of the applicant. However, the Tribunal finds that Dr Munn is at a disadvantage in assessing the important issue of the continuity of symptoms.
The respondent submitted that there was scant evidence of complaint of symptoms consistent with ongoing right shoulder bursitis, particularly in the period of about November 2013 to about June 2014. The respondent directed the Tribunal’s attention to a bundle of notes from Adelaide Medical Solutions which comprised the notes of the plaintiff’s GP and his chiropractor from 6 September 2013 to 16 April 2016. [23]
[23] Exhibit R3 extract from summonsed notes of Adelaide medical solutions.
There was some discussion about the use to which these notes could be put, but both Counsel for the respondent and for the applicant referred to them in submissions so the Tribunal will have regard to these notes to the extent necessary to consider those submissions.

The respondent asked the Tribunal to accept that history contained in the notes, in particular in the period after 16 November 2013. The respondent submitted that the history supports suggests the conclusion that there was a period of resolution, and that the effect of Dr Meegan’s evidence is therefore that the bursitis in 2008 and the bursitis in August 2017 are two different conditions.
Counsel for the applicant observed that there were 5 treatments from 16 November to 4 December 2013 in which the right shoulder was not mentioned to the applicant’s chiropractor or GP, and that subsequently there are reports of an improvement in the right shoulder symptoms. However, there is no suggestion that the symptoms resolved or that the right shoulder is symptom-free.
The Tribunal is not satisfied that the evidence demonstrates an extended period of resolution of symptoms.
The Tribunal is not satisfied that Dr Meegan’s opinion is shown to be unreliable. To the extent that there is a difference between the views of Dr Munn and Dr Meegan the Tribunal prefers the evidence of Dr Meegan who had the opportunity to observe the applicant over a far longer period than did Dr Munn.
It is clear that the applicant suffered from a range of conditions that were not related to his employment and do not form part of any claim for compensation. These include dystonia in his right arm, a period of left shoulder soreness and restriction, a period of headache, and some low back pain.
Although these conditions have been the subject of treatment from time to time, the fact that the applicant was seeking treatment for these unrelated conditions does not mean that his right shoulder bursitis had resolved. It is understandable that, at a time that some other condition was more troublesome than the right shoulder bursitis, the applicant would concentrate treatment on that other condition.
This does not of itself suggested that the right shoulder bursitis had resolved.
The Tribunal finds that the bursitis from which the applicant was suffering in August 2017 was the same condition that was caused by the fall in September 2008.
In making this finding the Tribunal acknowledges the respondent’s reference to the decision of Prain v Comcare[24] and its submission that that decision at paragraph 79 and following is authority for the proposition that the respondent is not liable to pay compensation where the employment related injury had “ceased to be a significant contributor” to the ongoing incapacity. Given the Tribunal’s finding that the right shoulder condition from 23 August 2017 was the same condition as was caused by the fall in 2008, the Tribunal finds that this question does not arise.
[24] [2017] FCAFC 143.
The respondent also referred to the decision of the full Federal Court in Commonwealth of Australia v Snell.[25] The respondent was concerned to ensure that the Tribunal did not regard itself is bound by the consent order of the AAT made on 17 February 2016 in which the disputed conditions were accepted. The Tribunal does not regard itself as bound by that consent order and the applicant did not submit that the Tribunal should so regard itself.
[25] [2019] FCAFC 57.
Given that the Tribunal has found that the right shoulder bursitis is relevantly related to the applicant’s work at the Australian Taxation Office, it is necessary to consider whether the respondent is liable to pay compensation in relation to the claimed anxiety disorder.
Dr Blakemore, believes that the applicant is suffering from an adjustment disorder with depressed mood with spells of depression associated with serious suicidal ideation. He associates this illness with the right shoulder pain and incapacity.
Dr Hundertmark, on the other hand, does not believe that the applicant suffers from a serious psychiatric condition at all.
The Tribunal notes that Dr Blakemore accepted the history of the applicant in respect of pain and disability arising from the right shoulder injury. Dr Hundertmark did not.
There was no cogent attack on the credit of the applicant in relation to the histories that he provided.
The Tribunal finds that the doubts expressed by Dr Hundertmark about the effect of the right shoulder injury on the applicant are not sustained by the evidence.
The Tribunal prefers the evidence of Dr Blakemore.
FINDINGS
The Tribunal finds that the respondent is liable to pay the applicant compensation under sections 16 and 19 of the Act in respect of his bursitis (right) condition which is a continuation of the injury that he sustained on 12 September 2008.
The Tribunal finds that the respondent is liable to pay the applicant compensation under sections 16 and 19 of the Act in respect of his adjustment disorder with depressive reaction.
ORDERS
The Tribunal orders that the decision of Comcare dated 21 September 2017 is set aside and substituted with orders:
(a)That the respondent is liable to pay the applicant compensation under sections 16 and 19 of the Act in respect of his bursitis (right) condition which is a continuation of the injury that he sustained on 12 September 2008;
(b)That the respondent is liable to pay the applicant compensation under sections 16 and 19 of the Act in respect of his adjustment disorder with depressive reaction;
(c)That the respondent pay the applicant’s legal costs and disbursements of this application.

I certify that the preceding one-hundred and eighty-two (182) paragraphs are a true copy of the reasons for the decision herein of Member O'Loughlin and Member Ben-Tovim.
.................[sgnd]............................
Administrative Assistant
Dated 21 April 2020

Date(s) of hearing: 18, 19, & 24 June 2019

Applicant’s representatives: C J Pearce, Scales & Partners

Respondent’s representatives: B Dube on instructions from Sparke Helmore

[2020] AATA 929

21 April 2020

Key Legal Topics

Areas of Law

Employment Law

Statutory Interpretation

Legal Concepts

Causation

Expert Evidence

Judicial Review

Procedural Fairness

Statutory Construction

Date(s) of hearing: 18, 19, & 24 June 2019
Applicant’s representatives: C J Pearce, Scales & Partners
Respondent’s representatives: B Dube on instructions from Sparke Helmore