Brice and Comcare (Compensation)

Brice and Comcare (Compensation) [2018] AATA 3463 (10 September 2018)
Division:GENERAL DIVISION
File Number(s): 2016/4990
Re:Angela Brice
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Mr S. Webb, Member

Date:10 September 2018
Place:Canberra

The Tribunal has jurisdiction to determine Ms Brice’s entitlement to compensation from 20 June 2016 to the present, if any, under s 16 and s 19 of the Safety, Rehabilitation and Compensation Act 1988 in respect of fibromyalgia, however described, being an ‘injury’ for which Comcare is liable to pay compensation.
........................................................................
Mr S. Webb, Member
Catchwords
WORKERS' COMPENSATION - accepted injury - anxiety - subsequent claims in respect of anxiety, depression, fibromyalgia, headaches rejected - previous Tribunal decision in respect of then present liability under heads of compensation - Comcare found to be liable in respect of 'fibromyalgia' – nature of ‘injury’ - subsequent determination made denying present liability affirmed on reconsideration - application for review - scope of Tribunal's jurisdiction - jurisdiction conferred in respect of reconsideration decision determining claims relating to ‘fibromyalgia’ - jurisdiction to decide issues of employment causation of ‘fibromyalgia’ however described, including change in medical diagnosis – jurisdiction to decide entitlements to compensation in respect of incapacity to work and medical treatment expenses as a result of physiological and psychiatric symptoms of 'fibromyalgia' ‘injury’ - ruling given.
Legislation
Administrative Appeals Tribunal Act 1975, ss 25, 43
Safety, Rehabilitation and Compensation Act 1975, ss 4, 14, 16, 19, 29, 57, 60, 61, 62, 64, 69
Cases
Re Brice and Comcare [2007] AATA 1476
Canute v Comcare [2006] HCA 47
Lees v Comcare [1999] FCA 753
REASONS FOR DECISION
Mr S. Webb, Member
10 September 2018

Some years ago, Angela Brice sustained a stress-related injury in her previous employment. She claimed and was paid compensation, but her compensation entitlements were suspended after she failed to attend a medical appointment arranged by Comcare. After several years, she made fresh claims for compensation and attended a medical appointment as directed by Comcare. The suspension was lifted. Her new claims were not accepted, however. Those matters progressed and came before the Tribunal. The Tribunal (differently constituted) decided that, at that time, she was entitled to payment of compensation in respect of ‘fibromyalgia’ but not in respect of an ‘anxiety condition’. There matters stood for a number of years. More recently, Comcare determined that Ms Brice was no longer entitled to payment of compensation in respect of the injury. This decision was affirmed on reconsideration and Ms Brice applied for review.
The matter was listed for hearing. Two issues concerning the Tribunal’s jurisdiction arose from the manner in which each party’s case proceeded. Counsel for Ms Brice, Mr Carey, asserted that the Tribunal’s jurisdiction extended to include determination of entitlements under s 16 and s 19 of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) in respect of an ‘injury’ described as ‘generalised anxiety disorder and myalgia & myositis, unspecified’. Counsel for Comcare, Mr Woulfe, argued against this, asserting the jurisdiction was confined to ‘fibromyalgia’. I heard extensive submissions from each party addressing this point to which I will shortly return.
It is in respect of diagnosis that the second jurisdictional point arises, although it appears that this is not controversial. Comcare asserts that Ms Brice does not suffer from ‘fibromyalgia’ but rather she suffers from somatoform disorder. Mr Woulfe conceded, however, and Mr Carey agreed, correctly in my view, that the Tribunal has jurisdiction to determine Ms Brice’s compensation entitlements under s 16 and s 19 of the SRC Act should a diagnosis of somatoform disorder be preferred over ‘fibromyalgia’ on the available evidence.
The parties sought a ruling on these points, which I gave orally with liberty to seek written reasons.
Comcare requested written reasons and sufficient time to properly consider them, at least 7 days, before proceeding further with the hearing. Mr Carey concurred with the application to adjourn the remainder of the hearing in order to minimise costs for his client.
In the circumstances, I acceded to Comcare’s application and vacated the remainder of the hearing. My written reasons for the jurisdiction ruling follow.
There are two things to say immediately.
Firstly, my written reasons expand upon those given orally during the hearing – while the content is more expansive and, one might hope, the reasoning is more clearly explained, the substance is the same.
Secondly, in order to assist understanding, it is helpful, first, to set out relevant background facts and aspects of the procedural history.
Facts and procedural history
In 1991, Ms Brice was badly injured in a motor vehicle accident. She recovered damages.
From 1992 to 1996, Ms Brice was employed as a clerical officer by the Australian Electoral Commission.
On 10 November 1994, Ms Brice lodged a claim for compensation in respect of “anxiety and stress due to continued sexual harassment and harassment at work” that she first noticed on 31 March 1992 and for which she first sought medical treatment on 1 May 1994.[1] The Comcare claim number is 8663/02.[2] I note that this injury is referred to in various Comcare documents as ‘the 02 condition’.
[1] T6 folio 93.
[2] T8 folio 110.
There is no dispute that Comcare accepted liability under s 14 of the SRC Act in respect of “an episode of anxiety/stress arising from difficulties with a relationship with a supervisor”.[3] It may be inferred that this ailment was found to be within the meaning of ‘disease’ and ‘injury’ under s 4 of the Act then in force. It appears that the date of the injury was deemed to be 31 January 1992. The reason for this is not clear on the present materials.
[3] The initial determination of liability is not in the documents provided to the Tribunal in these proceedings. The description of the accepted ‘injury’ is referred to in other documents, however - see T8 folio 102 and T31 folio 188, for example.
Amounts of compensation were paid.
On 11 November 1996, Ms Brice failed to attend a medical appointment Comcare arranged with Dr Kalnin (a consultant psychiatrist) under s 57 of the SRC Act. Consequently, under s 57(2), her entitlements to compensation were suspended from 1 December 1996.
There matters rested for several years.
On 29 September 2004, Ms Brice signed a Compensation Claim for Permanent Injury in respect of “Accepted condition: ANXIETY, DEPRESSION, FIBROMYALGIA, HEADACHES”.[4] The resulting impairments were stated to be “ongoing tiredness, overall body musculoskeletal pain, frequent headaches, ongoing depression”.[5] This claim was lodged with Comcare on 8 November 2004.
[4] T25 folio 150.
[5] Ibid folio 151.
On 17 November 2004, it appears likely that Ms Brice lodged a further claim for compensation “in respect of ‘work caused anxiety/depression, fibromyalgia, headaches’ (the 03 condition), which she attributed to the same events in the course of her former employment with the AEC” that gave rise to her accepted injury.[6]
[6] This claim is not in the documents given to the Tribunal, but reference is made in related documents, including T33 folio196, for example.
On 20 January 2005, Ms Brice attended a medical appointment Comcare arranged with Dr George, a consultant psychiatrist, under s 57 of the SRC Act, whereupon the suspension of her compensation entitlements was lifted.[7]
[7] T26 and T28 refer.
On 18 February 2005, Comcare determined to reject Ms Brice’s 8 November 2004 compensation claim for permanent impairment.[8] The decision-maker stated –
“The injury in this matter is clearly the harassment at work and any sequela as a result of that injury. It does not include any physical or psychological effects from the motor vehicle accident [in 1991] or any ongoing psychological problems associated with the childhood abuse. There is no liability accepting for any injury relating to previous repetitive keyboard work, peptic ulcer, impaired sleep or headaches. There is no evidence to satisfy that any of these conditions have been accepted as a sequela to her accepted condition, therefore I find these conditions are not included in the definition of injury relating to this claim for permanent impairment.
Ms Brice suffers from an anxiety condition that has manifested itself into a widespread chronic pain syndrome with at least six different contribution factors.
I find that in light of the evidence does not establish the percentage of ongoing contribution from Ms Brice’s accepted injury.”
[Original emphasis]
[8] T30 folio 185.
On 19 February 2005, Comcare determined to reject Ms Brice’s 17 November 2004 claim.[9]
[9] This determination is not in the documents provided to the Tribunal, but it is referred to in other documents, including T33 folio 197, for example.
On 23 February 2005, Comcare issued a further determination denying liability to pay compensation in respect of injury-related incapacity for work from 1 November 1996.[10]
[10] T31.
Ms Brice sought reconsideration of the 18, 19 and 23 February 2005 determinations.
On 26 May 2005, Comcare issued a reconsideration decision, affirming each of the determinations,[11] in which the decision maker concluded in relevant parts –
[11] T33.
“… I am not satisfied that the Employee continues to suffer from the specific psychological condition for which liability was originally accepted. The effects of the workplace events on the Employee’s psychological condition are likely to have ceased when she voluntarily removed herself from her employment through her resignation on 1 November 1996. The length of times between treatments and claims also leaves open the distinct possibility that the current condition was aggravated by an intervening cause unrelated to the employee's employment. Accordingly, I affirm the determination of 18 February 2005.”[12]
“The final point to note about the Employee’s claim for incapacity in the period since her resignation is that the more recent medical evidence attributes any such incapacity to a chronic pain syndrome that has been diagnosed by Drs Brook and Champion as ‘fibromyalgia’. … at this point in time, there is no liability for that condition, either as a new ‘injury’ or as a compensable sequel to the 02 condition. Accordingly, I am unable to consider the Employee’s claim for incapacity in respect of her ‘fibromyalgia’ because liability has not been accepted for it under s 14 of the Act.”[13]
“In my view, the Employee is not entitled to compensation for permanent impairment and non-economic loss, pursuant to sections 24 and 27 of the Act, because any psychological impairment currently suffered by the Employee is not related to the 02 condition.
…
… the recent opinions of Dr Champion and Dr George suggest that the Employee’s condition will improve with further treatment, including cognitive behaviour therapy.
I therefore consider that it was reasonably open to the Comcare claims manager to decide that any impairment resulting from the Employee’s psychological condition is not ‘permanent’ in the relevant sense, because the Employee has not ‘undertaken all reasonable rehabilitative treatment’ in relation to the condition.
Accordingly, I consider that the decision to deny liability to pay compensation for permanent impairment and non-economic loss, pursuant to sections 24 and 27 of the Act, in respect of the 02 condition, was correct.”[14]
“As the Comcare claims manager correctly [sic] in her Determination of 19 February 2005, the Employee’s claim for the 03 condition is based on the same events in the course of her former employment with the AEC that gave rise to the 02 condition. At best, the Employee might have suffered the 03 condition as compensable sequelae of the 02 condition, and I note that that matter has been referred to the claims manager responsible for the 02 condition for appropriate determination.
However, the circumstances surrounding the 03 condition cannot give rise to a separate ‘injury’ for the purposes of the Act. Accordingly, I consider that the decision to deny liability in respect of that claim was correct.”[15]
[12] Ibid folio 209.
[13] Ibid folios 210-211.
[14] Ibid folios 211-212.
[15] Ibid folio 212.
As can be seen, the ’03 condition’ claim relating to ‘work caused anxiety/depression, fibromyalgia, headaches’ was referred for further determination in respect of the ’02 condition’, being the accepted injury.
On 10 November 2005, Comcare issued a determination in respect of “the issue of “fibromyalgia” and whether this condition relates to your accepted 02 claim”.[16] The decision maker stated –
“… I am satisfied the condition currently suffered from is more appropriately expressed as a somatoform disorder rather than fibromyalgia. This in my view correctly implies a psychological rather than a physical cause.
…
On the balance of probability I am not satisfied that your current condition arose as a result of the injury in 1992”.[17]
[16] T37.
[17] Ibid folio 228.
This determination was affirmed in a reconsideration decision made on 10 January 2006.[18] The reconsideration decision maker said –
“On the basis of the available evidence, I do not consider that the Employee has suffered ‘fibromyalgia’, whether as a result of the 02 condition or otherwise. Whilst the Employee does experience diffuse physical symptoms that have been variously described as ‘fibromyalgia’, ‘chronic pain syndrome’ and ‘somatoform pain disorder’, I am not satisfied, on the balance of probabilities, that that condition is causally related to the 02 condition.”[19]
[18] T41.
[19] Ibid folio 252.
Ms Brice applied to the Tribunal for review. While her application does not appear in the documents given to the Tribunal, it is probable that it related to the 10 January 2006 and 26 May 2005 reconsideration decisions.
In any event, on 27 June 2007, the Tribunal issued a decision supported by extensive reasons – Re Brice and Comcare [2007] AATA 1476.[20] The Tribunal decision is in the following terms –
The Tribunal:
(a)       sets aside the reviewable decision dated 10 January 2006 and substitutes the decision that Comcare is liable to pay compensation to Angela Brice for fibromyalgia, it being materially contributed to by her employment by the Commonwealth;
(b)       sets aside that part of the reviewable decision dated 26 May 2005 that denied liability for permanent impairment for fibromyalgia and substitutes the decision that Comcare is liable to pay compensation for permanent impairment for fibromyalgia; and
(c)       remits to Comcare the assessment now required under s 24 and s 27 of the Safety, Rehabilitation and Compensation Act 1988, with the direction that Comcare take into account that Ms Brice has a 20% whole person impairment as provided for under Table 5.1 of the Guide to the Assessment of the Degree of Permanent Impairment.
In all other respects the Tribunal affirms the reviewable decision dated 26 May 2005.
[20] T49.
It is quite clear that the Tribunal, having carefully and extensively examined the evidence before it, accepted that “any anxiety that was related to harassment at work would come to an end when Ms Brice ceased to interact with the source of the harassment – subject to a period of recovery” and, if it did not “then one needed to look to other causes”, namely “the ongoing effect of the post traumatic reaction to childhood abuse”.[21] The Tribunal said –
76. For these reasons I would affirm the decisions under review as they relate to the anxiety condition. I was satisfied that that injury resolved and Ms Brice has no ongoing incapacity arising from it. She is not entitled to compensation for incapacity or impairment.
[21] Ibid at [74]; folio 302.
When dealing with ‘fibromyalgia’, the Tribunal said –
77. The fibromyalgia claim, which Comcare firstly looked at as a new claim for injury, and refused that claim in a reviewable decision dated 26 May 2005 subsequently was examined from the other possible perspective, namely whether or not fibromyalgia might be related to the already accepted condition of anxiety/stress and thus itself come within the definition of disease in s 4 of the SRC Act. This, as an alternate basis of potential liability, was dealt with by determination dated 10 November 2005, and affirmed in a reviewable decision dated 10 January 2006. Both decisions referred to the grey areas of diagnosis of fibromyalgia in MsBrice’s case. The review officer preferred the evidence that Ms Brice’s (undisputed) complaints of pain were a somatoform disorder of some description.
…
103. … I should make plain that I accept the medical evidence that Ms Brice suffers from fibromyalgia, the term most widely used in the reports to describe her constellation of symptoms. Much was made of whether the underlying disorder had a physiological basis, or rather was some kind of somatoform disorder. I do not see that as a question that I need to decide. It may well be, as Dr Danta indicated, a condition that is referable to both. It appears to be one kind of diagnosis that remains the source of continued debate within the medical profession.
…
106. Before any form of compensation is payable there must be an injury which arises out of, or in the course of employment, or a disease which was contributed to a material degree by employment. Here what is claimed is that fibromyalgia was a sequel to the accepted condition of the anxiety/stress Ms Brice experienced at the Electoral Commission. So the question is: does the fibromyalgia come within the definition of disease, being an ailment, or the aggravation of an ailment, that was contributed to in a material degree by employment?[22]
[22] Ibid at [103] and [106]; folios 310 and 311.
In the result, the Tribunal preferred and accepted Dr Champion’s evidence relating to the onset of pain symptoms and causal factors. The Tribunal accepted that the pain symptoms Ms Brice complained of commenced after her 1991 motor vehicle accident “However then the symptoms became more widespread, following the harassment at work” and “the condition then developed into the chronic widespread pain syndrome which he and others label fibromyalgia”.[23] The Tribunal considered the causal factors Dr Champion identified, including past sexual abuse and the 1991 motor vehicle accident and said –
[23] Ibid at [105]; folio 311.
110. …these two contributing factors did not lead her to develop persistent symptoms until she developed anxiety interacting with the Assistant Commissioner.
111. Of the remaining factors identified by Dr Champion, the one most directly related to her employment was stress from harassment. But he also mentions peptic ulcer and impaired sleep…
112. Did this evidence amount to material contribution, or a substantial or considerable contribution? I was satisfied, accepting the evidence of Dr Champion that it did.
113. In the context of the SRC Act, what Dr Champion describes as having taken place with Ms Brice’s symptoms was that an existing condition or propensity, that was present as a result of the motor vehicle accident, was worsened by the harassment in her employment. Her pain worsened because it spread…
114. For these reasons, I concluded that Comcare is liable to pay compensation in respect of fibromyalgia as an injury being an ailment, aggravated to a material degree by her employment. I was satisfied that Ms Brice has suffered injury and the medical evidence indicates that this has resulted in impairment. There is broad agreement that Ms Brice is incapacitated for work.
…
116. The most difficult question is what impairment rating should be assigned and under which Table…
…
118. …It seems to me that Table 5.1 is the most appropriate Table under which to assess the condition, in what is admittedly a difficult condition to categorise… Here we are presented with a condition that has both psychiatric and physiological components and I was satisfied that Table 5.1 provides the best means to ascribe an impairment rating in all the circumstances.”[24]
[24] Ibid at [110]-[114], [116] and [118]; folios 312-314.

Consequent to the Tribunal’s remitter, on 3 October 2007, Comcare determined Ms Brice’s entitlement to compensation for permanent impairment and non-economic loss.[25]
[25] T50.
On 12 December 2007, Comcare determined her entitlement to compensation in respect of incapacity for work from 20 January 2005, the day on which the suspension under s 57(2) of the SRC Act was lifted.[26]
[26] T51
Ms Brice cavilled with this determination and requested reconsideration. The determination was affirmed in a reconsideration decision issued on 26 March 2008.[27] That matter went no further.
[27] T52.
On 29 May 2009, lawyers acting for Ms Brice informed Comcare that her compensable injury of fibromyalgia “has deteriorated further since the June 2007 AAT decision”.[28]
[28] T56 folio 366.
It appears that Comcare continued to pay compensation for the cost of medical treatment, including visits to Ms Brice’s general practitioner, pharmaceuticals and weekly massage, and weekly compensation for incapacity to work until 19 June 2016.[29]
[29] T77 and T78.
On 16 March 2015, Comcare gave Notice of Comcare’s intention to determine no present entitlement in respect of s 16, s 19 and s 29 of the SRC Act, providing a period in which Ms Brice could provide additional materials.[30] The Notice was addressed to Ms Brice but sent to Dr Moulding, Ms Brice’s treating general practitioner. The reference information set out in the Notice includes –
“Claim reference: 8663/2
Condition: generalised anxiety disorder and myalgia & myositis, unspecified
Date of injury: 31 January 1992”
[30] T60.
From this it may be inferred that Comcare was paying compensation under Ms Brice’s originally accepted claim. In response, Dr Moulding sought an extension of time for Ms Brice to provide further materials.[31] This was granted.[32]
[31] T61.
[32] T62.
On 21 April 2015, Ms Brice gave Comcare a medical certificate of Dr Moulding in which the doctor refers to a diagnosis of fibromyalgia and treatment in the form of “Analgesia, Tryptanol and relaxation. Also massage to back and neck weekly as gives good pain relief and less headaches”.[33]
[33] T63 folio 393.
On 9 September 2015, Ms Brice provided further materials to Comcare, namely a medical report of Dr Moulding[34] and a medical certificate (which does not appear to be in the documents given to the Tribunal).[35]
[34] T64.
[35] T65 and T66.
On 3 March 2016, Comcare sent a briefing letter to Dr Gorman, a consultant physician and pain specialist,[36] including a case summary and background information in which the following appeared –
“In summary, AAT had determined that the accepted compensable condition of generalised anxiety disorder from the workplace incident of 31 January 1992 had resolved, however, accepted that the stress following the incident had materially contributed to an aggravation of Ms Brice’s “Fibromyalgia”, Comcare had therefore accepted “myalgia & myositis, unspecified” as a secondary condition (namely, the only condition as it was determined that there was no further liability for the generalised anxiety disorder.)”[37]
[36] T67.
[37] Ibid folio 410.
On 11 April 2016, Dr Gorman provided a report[38] in which he referred to fibromyalgia as “the best description of the condition” Ms Brice “continues to suffer”, although “her presentation now is more related to her underlying psychiatric condition. I note that the psychiatric condition was accepted by the AAT to have ceased and is now not a continuation of the events in 1992”.[39]
[38] T68.
[39] Ibid folio 418.
On 29 April 2016, Comcare gave Ms Brice a Notice of Comcare’s intention to determine no present entitlement in respect of s 16 and s 19 of the SRC Act.[40]
[40] T69.
On 13 June 2016, Ms Brice provided additional materials to Comcare,[41] namely a report by Dr Moulding dated 18 May 2016,[42] and referred to a previously supplied medical certificate (which does not appear in the documents given to the Tribunal).
[41] T71.
[42] T70.
On 20 June 2016, Comcare issued a determination of no present liability under s 16 and s 19 of the SRC Act,[43] in which the decision maker referred to medical reports by Dr Moulding, Dr Reutens (a consultant psychiatrist), Dr Gorman “and other various specialists”. In the result, the decision maker said –
“I am satisfied that you continue to suffer from the condition of “Fibromyalgia”, however, I am not satisfied that the workplace incident of 31 January 1992 remains a contributing factor to your current condition, and that the aggravating effects have resolved.
Having assessed the evidence on your claim file, I have determined that you do not presently suffer from the effects of your compensable condition.
…
This determination supersedes any previous determinations issued in relation to incapacity entitlement and/or medical treatments.”[44]
[43] T72.
[44] Ibid folio 430.
On 19 July 2016, Ms Brice requested reconsideration of this determination.[45] She stated –
“The reason I seek a reconsideration is that I continue to suffer from Fibromyalgia, which was materially contributed to by my former employment with the AEC. No other intervening factor has occurred since I ceased employment with the AEC in 1996 which is causing my incapacity….”[46]
[45] T73.
[46] Ibid folio 436.
On 16 August 2016, Comcare issued a reconsideration decision affirming the 20 June 2016 determination.[47] The reference information set out in the covering letter incudes –
“Claim reference: 8663/2
Condition: generalised anxiety disorder and myalgia & myositis, unspecified
Date of injury: 31 January 1992”[48]
[47] T76.
[48] T76 folio 444.
The reference information in the decision excludes the words ‘generalised anxiety disorder and’ from the description of ‘Condition’.[49] The reconsideration decision maker refers to medical reports by Dr Moulding, Dr Gorman, Dr McGill (a consultant rheumatologist), Dr George, Dr Reutens, Dr Skinner (a consultant psychiatrist) and Dr Whittaker (a consultant rheumatologist) and concluded –
“While there are differences of opinion regarding your current condition and relationship to the effects of the primary incident occurring on 31 January 1992, I have preferred the opinions of Dr Gorman, Dr Whittaker and Dr George in this instance, having regard to their medical expertise and experience with chronic pain conditions.
… I need to rely on the current medical evidence in respect of your current medical condition when determining your correct and current entitlements.
On that basis I consider that as you no longer suffer the effects of your compensable condition and you are not presently entitled to compensation under sections 16 and 19 of the SRC Act in respect of your accepted myalgia and myositis unspecified sustained on 31 January 1992, but rather other non compensable conditions.”[50]
[49] Ibid folio 445.
[50] Ibid folio 447.
On 19 September 2016, Ms Brice applied to the Tribunal for review of the 16 August 2016 reconsideration decision.
In the course of the proceedings before the Tribunal, Statements of Facts, Issues and Contentions were filed by each party.
The Applicant’s Statement of Facts, Issues and Contentions asserts that, among other things –
“92. …
b. The Respondent is liable pursuant to sections 16 and 19 of the SRC Act for the Applicant’s ‘generalised anxiety disorder and myalgia & myositis, unspecified’;
c. The Applicant is entitled to benefits pursuant to s 16 and s 19 of the SRC Act from 20 June 2016 and continuing;
…”
The Respondent’s Statement of Issues, Facts and Contentions asserts that, among other things –
“1.5 … the respondent did not make a determination in relation to the Applicant’s previously accepted ‘generalised anxiety disorder’.”
“4.1 On the basis of the available medical evidence, the respondent contends that the appropriate diagnoses for the Applicant’s current condition are Chronic Schizophrenia and Somatoform Disorder…
4.2 The Applicant’s current condition is underlying or constitutional in nature and related to factors not associated with her former employment with the Agency…
4.3 … the Applicant has long since ceased to suffer the effects of the injury [described by the Respondent as ‘myalgia & myositis, unspecified’]
4.5 … the Respondent is not presently liable to pay compensation for medical treatment and/or incapacity, pursuant to ss16 and/or 19 of the Act in respect of the injury.”
Tribunal’s jurisdiction in the present proceedings
Mr Carey argued that the ‘injury’ under claim is singular, albeit perhaps with different medically inter-linked components, namely a pain condition and a psychiatric condition. In his submission, it is not permissible or appropriate, or necessary, to determine Comcare’s present liability in respect of only one component of a multi-faceted injury, disregarding or excluding the other components. He asserts that Ms Brice’s compensable ‘injury’ is that described in reference information supplied by Comcare in various communications, namely ‘generalised anxiety disorder and myalgia & myositis, unspecified’. The liability against Comcare for the initial anxiety injury persists, so the argument goes, and it was not extinguished by the 2007 Tribunal decision - the persistence of liability and related entitlement to compensation, if any, are to be determined on the available evidence from time to time. That, Mr Carey says, is what the Tribunal has jurisdiction to do, and must do, in this case.
Mr Woulfe disagreed. He argued that only fibromyalgia, however described, is presently before the Tribunal and only this injury should be considered when determining Ms Brice’s entitlements of compensation under s 16 and s 19 of the SRC Act, if any. The anxiety disorder injury for which Comcare originally accepted liability resolved long ago, so the argument goes, and that is what the Tribunal found in its 2007 decision. In Mr Woulfe’s submission, Ms Brice and those representing her have not raised any issue in respect of presently liability relating to an anxiety disorder since the Tribunal’s 2007 decision, and without a claim, determination and reconsideration decision in respect of any such injury, or related compensation entitlements, the Tribunal does not have jurisdiction to determine such matters.
Mr Woulfe expressly asked me to deal with a “two injury hypothesis”, by which I understand him to mean that Comcare’s initial acceptance of liability for an ‘anxiety/stress’ ‘injury’ may be distinguished from the liability against it in respect of the ‘fibromyalgia’ ‘injury’, as determined by the Tribunal.
As I have said, there are two jurisdictional issues arising. The first relates to the description of injury pressed by Mr Carey and Mr Woulfe’s two injury hypothesis – does the Tribunal have jurisdiction and power to determine Ms Brice’s compensation entitlements in respect of an anxiety disorder and fibromyalgia? As will appear, the answer to this question is a qualified Yes. The Tribunal’s jurisdiction in these proceedings is in respect of Ms Brice’s compensation entitlements under s 16 and s 19 (and related sections) of the SRC Act in respect of ‘fibromyalgia’. Anxiety enters the frame only insofar as it may be considered as:
(a)an employment-related causal factor of symptoms described as ‘fibromyalgia’; or
(b)a symptom of ‘fibromyalgia’.
Whether the ‘fibromyalgia’ is, itself, an ‘injury’ in the form of a ‘disease’ or it is subsumed within a broader description of ‘injury’ that includes an anxiety disorder does not change this result. The Tribunal does not have jurisdiction to determine compensation entitlements under s 16 and s 19 (and related sections) of the SRC Act resulting from an anxiety disorder, alone.
The second jurisdictional issue relates to change in the diagnosis or description of injury in the form of a ‘disease’, as pressed by Comcare in respect of somatoform disorder instead of fibromyalgia – does the Tribunal have jurisdiction and power to determine compensation entitlements relating to somatoform disorder, should that diagnosis be preferred? The answer to this question is Yes. Even though a different diagnosis might be preferred on the best available evidence, so long as it refers to the same ailment under claim as an injury, this does not affect the Tribunal’s jurisdiction in these proceedings.
When dealing with matters of this kind, it is necessary to consider s 25(1) of the Administrative Appeals Tribunal Act 1975 (the AAT Act) and s 64(1) of the SRC Act, by which jurisdiction is conferred. As can be seen, the jurisdiction conferred upon the Tribunal by s 64(1) of the SRC Act is for ‘review of a reviewable decision’. The term ‘reviewable decision is given meaning by s 60(1) of that Act –
reviewable decision means a decision made under subsection 38(4) or section 62.
A decision under s 62 is one involving reconsideration of a ‘determination’ as defined by s 60(1) –
determination means a determination, decision or requirement made under section 8, 14, 15, 16, 17, 18, 19, 20, 21, 21A, 22, 24, 25, 27, 29, 29A, 30, 31, 34, 36, 37 or 39, under paragraph 114B(5)(a) or under Division 3 of Part X.
At this point it is relevant to observe that compensation is not payable unless a claim is made under s 54(1) o the SRC Act.
Comcare is obliged to determine claims made against it ‘accurately and quickly’ (s 69(a)) or within the prescribed time (s 61(1)), notifying the claimant ‘as soon as practicable’ thereafter.
It is by this three-tiered approach to decision-making the scheme provided by the SRC Act proceeds.[51]
[51] Lees v Comcare [1999] FCA 753 at [39].
In the present case, the Tribunal has jurisdiction to review the reconsideration decision that is the subject of the application Ms Brice made for review, namely the reconsideration decision made on 16 August 2016.[52] By this decision, Comcare affirmed a determination made on 20 June 2016.[53]
[52] T76.
[53] T72.
There is no controversy about this.
The controversy arises in respect of the scope of the jurisdiction conferred and the extent of power to determine certain matters, beyond which the Tribunal might fall into jurisdictional error.
Issues of power arise as, under s 43(1) of the AAT Act, for the purposes of reviewing a decision, the Tribunal “may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision”. The Tribunal does not exercise power at large – acting in excess of power may result in jurisdictional error.
Determining the extent of power requires careful assessment of the scope of matters that were put before the decision maker as part of a claim that were capable of being decided under the SRC Act. Whether or not they were squarely dealt with or dealt with in any way in the reconsideration decision (or the anterior determination), those matters will be before the Tribunal on review.[54] Furthermore, it is necessary to consider the extent of the powers and discretions capable of being exercised by the person who made the reconsideration decision, for those same powers and discretions will be capable of exercise by the Tribunal for the purposes of review in order to properly deal with all such matters.
[54] Re Fuad and Telstra Corporation Limited [2004] AATA 1182 at [4]-[5].
Thus, it is necessary to properly understand the matters under claim that were placed before the person who made the determination, subsequently reconsidered.
At this point it is necessary to say some things about the nature of the ‘injury’ in Ms Brice’s case.
Firstly, while the original acceptance of liability by Comcare is not presently available, it may be inferred that symptoms of stress and anxiety were initially accepted as an ‘injury’ in the form of a ‘disease’, being an ailment outside the boundaries of normal functioning and behaviour to which Ms Brice’s employment contributed to a material degree for the purposes of the SRC Act. The ‘injury’ is described as an ‘episode of anxiety/stress’ related to ‘difficulties’ in Ms Brice’s ‘relationship with her supervisor’. Those difficulties have been described as sexual harassment or harassment over a period over years from 1992 to 1994. Even though Comcare deemed the date of the original injury to be 31 January 1992, the injury does not appear to have resulted from a single ‘incident’ on that day, rather the harassment persisted over many months until Ms Brice left work in 1994. On the Tribunal’s 2007 decision, Ms Brice was experiencing anxiety, stress and worsening symptoms of pain in 1994. Nevertheless, ‘fibromyalgia’ or chronic pain was not diagnosed at that time, and it did not feature in Ms Brice’s compensation claims until 2004.
Secondly, it is necessary to properly understand the Tribunal’s 2007 decision with reference to the reconsideration decisions, determinations and claims then in issue, to which I have referred above. This is no easy task. Nevertheless, I think the following conclusions may be drawn.
(c)The Tribunal affirmed that part of the 26 May 2005 reconsideration decision which affirmed the 19 February 2005 determination to reject Ms Brice’s 26 November 2004 claim in respect of ‘work caused anxiety/depression, fibromyalgia, headache’ – referred to as ‘the 03 condition’. From this it may be taken that Ms Brice’s 26 November 2004 claim in respect of ‘work caused anxiety/depression, fibromyalgia, headache’ as new or fresh injuries was not made out and it was denied.
(d)The Tribunal affirmed that part of the 26 May 2005 reconsideration decision which affirmed the 23 February 2005 determination denying (then) present and past liability to pay compensation for incapacity to work from 1 November 1996 in respect of “the anxiety condition”, as “that injury resolved”.[55]
(e)The Tribunal set aside that part of the 26 May 2005 reconsideration decision which affirmed the 18 February 2005 determination to deny liability to pay compensation for permanent impairment and decided that Comcare was liable to pay compensation for permanent impairment in respect of ‘fibromyalgia’.
(f)And the Tribunal set aside the reconsideration decision of 10 January 2006 which affirmed the 10 November 2005 determination that ‘fibromyalgia’ (or in the words of the reconsideration decision maker: “diffuse physical symptoms that have been variously described as ‘fibromyalgia’, ‘chronic pain syndrome’ and ‘somatoform pain disorder’”) was not a sequel of or causally related to Ms Brice’s accepted injury. Instead the Tribunal decided that Ms Brice’s worsening pain or ‘fibromyalgia’ was an injury within the meaning of ‘disease’, being an ailment materially contributed to by employment, that was causally related to the anxiety and stress previously accepted as an ‘injury’.
[55] Re Brice and Comcare [2007] AATA 1476 at [76]; T49 folio 302.
Thirdly, in order to properly understand the nature of Ms Brice’s ‘injury’ (or injuries perhaps) for which Comcare is liable, it is helpful to consider the sequence of events and what the Tribunal said about the causal relationship between anxiety and pain that was later described as ‘fibromyalgia’ in its 2007 decision. As I have said, the Tribunal concluded that “any anxiety that was related to harassment at work would come to an end when Ms Brice ceased to interact with the source of the harassment – subject to a period of recovery”. The Tribunal accepted medical evidence suggesting that Ms Brice was recovering from the anxiety in 1995 and 1996, and that the contribution made by her previous employment “took on less significance when she had to deal with re-experiencing the childhood memories” of earlier abuse.
This notwithstanding, the Tribunal also found that Ms Brice experienced pain “mostly in her hands and arms”[56] in the course of her employment in 1994 that became worse and “spread”[57] into a chronic widespread pain syndrome described as fibromyalgia. The Tribunal accepted Dr D. Champion’s evidence that “a somatisation process was operating – that is, one whereby emotions are expressed as bodily symptoms”,[58] and referred to expert evidence addressing the same or similar points, such as the evidence of Dr George - “her anxiety had been converted into somatic complaints that she experiences as real. It was clear in the context of his report that he was referring to the anxiety from workplace harassment”.[59]
[56] Re Brice and Comcare [2007] AATA 1476 at [104].
[57] Ibid at [113].
[58] Ibid at [90].
[59] Ibid at [96].

In the result, the Tribunal said –
113. … If pain arising from an underlying condition is worsened or increased by reason of factors of employment, then the employee will have suffered a compensable injury: Tippett v Australian Postal Corporation (1998) 27 AAR 40, citing Commonwealth Banking Corporation v Percival [1988] FCA 240; (1988) 20 FCR 176.
114. For these reasons, I concluded that Comcare is liable to pay compensation in respect of fibromyalgia as an injury being an ailment, aggravated to a material degree by her employment…
Notwithstanding the Tribunal’s decision to affirm Comcare’s rejection of Ms Brice’s 26 November 2004 claim which included fibromyalgia, it may be argued that, in law, the Tribunal’s decision in respect of ‘fibromyalgia’ constituted a fresh ‘injury’ in the form of a ‘disease’ for the purposes of the SRC Act. This would accord with Comcare’s assertion that there are two injuries. Alternatively, it may be argued that the Tribunal decided the constellation of symptoms described as ‘fibromyalgia’ were materially contributed to by employment and causally related to the previously accepted anxiety/stress ‘injury’ for which Comcare was liable to pay compensation, without a new ‘injury’ arising. This is more aligned with the singular injury for which Ms Brice contends. Clearly enough, what the High Court said in Canute v Comcare[60] at [8] to [10] guides consideration on this point.
[60] [2006] HCA 47.
As will appear, for present purposes, I do not need to resolve these matters, and I do not think it is necessary or, in the circumstances, appropriate to go behind the Tribunal’s 2007 decision. Whether there are one or two injuries as result of that decision is not determinative of the jurisdictional issues I have been asked to decide.
In this case the relevant jurisdictional facts are quite clear.
The claim for compensation Ms Brice pressed, and Comcare met, after the Tribunal’s 2007 decision related to ‘fibromyalgia’.
Thereafter until 19 June 2016, Comcare paid compensation for medical treatment expenses and incapacity for work resulting from the ‘injury’ under the originally accepted claim – number 8663/2.
When Comcare gave notice of its intention to determine ‘no present liability’ under specific heads of compensation, Ms Brice pressed her claim in respect of ‘fibromyalgia’. That is what she told Comcare, and that is what Dr Moulding supported in related medical certificates and reports provided to Comcare in response to the Notices given of intention to determine no present liability. What the term ‘fibromyalgia’ referred to by way of symptoms or psychophysiological processes is a matter for evidence.
The final notice of intention to determine ‘no present liability’ Comcare gave Ms Brice, and the claims she correspondingly pressed, impliedly at least, were in respect of ‘fibromyalgia’ and related compensation for medical treatment expenses under s 16 of the SRC Act and incapacity for work under s 19 (and other related sections).
The 20 June 2016 determination expressly refers to ‘fibromyalgia’ in this context. So, too, does the reconsideration decision made on 16 August 2016.
Thus it can be seen that the primary determination on 20 June 2016 was made in respect of claims relating to ‘fibromyalgia’ under s 16 and s 19 (or related sections) of the SRC Act, and this is reflected in the reconsideration decision on 16 August 2016.
It is quite clear that the Tribunal has jurisdiction to determine Ms Brice’s entitlements to compensation as claimed under s 16 and s 19 of the SRC Act from 20 June 2016 in respect of the ‘injury’ for which Comcare is liable insofar as it relates to ‘fibromyalgia’. This is so whether the ‘injury’ is described as a singularity with different components in the form of ‘generalised anxiety disorder and myalgia & myositis, unspecified’ or as two separate ‘disease’ injuries in the form of an anxiety disorder and fibromyalgia, however described.
In either case, as the Tribunal decided in 2007, Ms Brice’s ‘fibromyalgia’ satisfied the requirements for a ‘disease’ within the frame of an ‘injury’ for the purposes of the SRC Act.
I note in passing that, generally, the symptoms of an ‘injury’ should be considered as part of the injury for the purposes of the SRC Act, without categorising different symptoms as separate injuries. Of course, in circumstances in which a symptom of an injury progresses into a disease in its own right, or it undergoes a physiological change of some kind, then, perhaps, it may be necessary or appropriate to decide if a separate ‘injury’ exists. There is much authority on this point which I do not need to reprise for present purposes. In Ms Brice’s case, it is certainly conceivable, even likely, that the worsening of pain symptoms as a result of anxiety she experienced in the context of her former employment may have progressed into a medically identifiable disease entity in its own right, namely ‘fibromyalgia’; and it was this the Tribunal found to be within the meaning of ‘disease’ and ‘injury’ for the purposes of the SRC Act.
There is a difficulty, however, arising from the term ‘fibromyalgia’ in this case, to which the Tribunal alluded in its 2007 decision. The extent to which this is a formal medical diagnosis as opposed to a descriptive label for a constellation of symptoms resulting from anxiety is controversial. Clearly enough, medical minds may diverge on this point. In Ms Brice’s case, as the Tribunal found in 2007, there may be interlaced physiological and psychological elements, and perhaps a somatisation process in operation whereby emotions are expressed as bodily symptoms or anxiety is transferred to somatic complaints that are experienced as real. Determining whether a condition of this kind is best described in terms of psychiatric disorder, a pain syndrome or both is controversial medically and in the context of these proceedings. Mr Carey’s submissions highlight the difficulty, and resolving it is no easy task. These are matters for evidence and examination in the hearing and, for present purposes, I do not need to go any further on this point.
Nevertheless, the claim pressed by Ms Brice that was determined and reconsidered by Comcare is in respect of ongoing employment related ‘fibromyalgia’, including the constellation of psychological and physiological symptoms and psychophysiological processes that description embraces, as a cause of incapacity and requiring medical treatment. There was no claim relating to medical treatment or incapacity for work as a result of anxiety as a separate disease or ‘injury’ before either Comcare decision maker. Absent such a claim, neither decision maker had power to determine entitlements under s 16 or s 19 of the SRC Act in respect of an anxiety injury.
That said, each decision maker had power to determine claims made in respect of Ms Brice’s ‘fibromyalgia’ and all associated symptoms. Where the symptoms of her ‘fibromyalgia’ involve anxiety or a somatisation process whereby anxiety symptoms might be transferred into somatic complaints of pain, each decision maker had power to determine compensation for related medical treatment, such as the anxiolytic drug Tryptanol Dr Moulding prescribed for example. That is what occurred up to 19 June 2016. Whether Ms Brice’s claims in respect of ‘fibromyalgia’ are made out on and after 20 June 2016 are matters for evidence.
Presently, to my mind, there is no jurisdictional bar to the Tribunal deciding such matters.
Furthermore, it is clear from the Tribunal’s 2007 decision that, at that time, Ms Brice’s ‘fibromyalgia’ was causally related to the anxiety and stress she experienced from 1992 to 1994. It is conceivable, with the benefit of hindsight and changes (if any) in Ms Brice’s ailments over time, that different diagnoses may be proffered or preferred on the present medical evidence. I note that Comcare refers to chronic schizophrenia and somatoform disorder, for example. Any such change in diagnosis does not necessitate a change in liability, although that would occur where the essential causal nexus with employment falls below the requisite threshold. These are matters for evidence.
To be clear, there is no jurisdictional bar preventing the Tribunal from deciding issues of diagnosis or employment causation in respect of Ms Brice’s ‘fibromyalgia’ claims, particularly when deciding if her previous employment continues to contribute to the requisite degree to her ‘fibromyalgia’, however described. This may extend to consideration of an anxiety disorder or any other psychiatric disorder when determining, in the context of ‘disease’ for the purposes of the SRC Act, if a chain of causation exists between her previous employment and the ‘fibromyalgia’ she experienced on and after 20 June 2016 to the present. Nor is there a jurisdictional bar preventing the Tribunal from deciding such claims on the basis a proper examination of the effects or symptoms of Ms Brice’s ‘fibromyalgia’, insofar as the causal nexus between the ‘fibromyalgia’ and her previous employment persists, when deciding if she is entitled to payment of compensation in respect of incapacity for work or medical treatment as a result of her accepted ‘injury’ (or injuries). Symptoms of her ‘fibromyalgia’ may have a psychological or physiological character – if anxiety is found to be a symptom within the ‘fibromyalgia’ description or diagnosis, there is no jurisdictional bar to this being taken into account.
Conclusion
The Tribunal has jurisdiction to determine Ms Brice’s entitlement to compensation from 20 June 2016 to the present, if any, under s 16 and s 19 of the Safety, Rehabilitation and Compensation Act 1988 in respect of ‘fibromyalgia’, however described, being an ‘injury’ for which Comcare is liable to pay compensation.

I certify that the preceding 94 (ninety-four) paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member

........................................................................
Associate
Dated: 14 September 2018

Date(s) of hearing: 10 September 2018

Date final submissions received: 10 September 2018

Counsel for the Applicant: Mr Mark Carey

Solicitors for the Applicant: Mr K Richardson, Maurice Blackburn Lawyers

Counsel for the Respondent: Mr Peter Woulfe

Solicitors for the Respondent: Mr J Cummings, Sparke Helmore

[2018] AATA 3463

10 September 2018

Key Legal Topics

Areas of Law

Employment Law

Administrative Law

Legal Concepts

Jurisdiction

Statutory Construction

Appeal

Remedies

Procedural Fairness

Date(s) of hearing:	10 September 2018
Date final submissions received:	10 September 2018
Counsel for the Applicant:	Mr Mark Carey
Solicitors for the Applicant:	Mr K Richardson, Maurice Blackburn Lawyers
Counsel for the Respondent:	Mr Peter Woulfe
Solicitors for the Respondent:	Mr J Cummings, Sparke Helmore