Budarick and Australian Capital Territory (Compensation)
[2019] AATA 643
•4 April 2019
Budarick and Australian Capital Territory (Compensation) [2019] AATA 643 (4 April 2019)
Division:GENERAL DIVISION
File Number(s): 2017/5818
Re:Steven Budarick
APPLICANT
Australian Capital TerritoryAnd
RESPONDENT
DECISION
Tribunal:Member Mark Hyman
Date:04 April 2019
Place:Canberra
The decision under review is affirmed.
........................................................................
Member Mark Hyman
Catchwords
COMPENSATION – thoracic back strain – chronic pain disorder – cease effects - whether injuries continue to show required connection with employment – liability for medical expenses and incapacity - medical evidence – decision affirmed
Legislation
Administrative Appeals Tribunal Act 1975, ss 37, 42B
Safety, Rehabilitation and Compensation Act 1988, ss 4, 14, 16, 19, 64, 71
Cases
Bailey v Broadsword Marine Contractors [2017] FCAFC 219
Budarick and Comcare [1994] AATA 85
Budarick and Comcare [2000] AATA 673
Budarick and Comcare [2019] AATA 116
Commonwealth v Borg (1991) FCA
Comcare v Nichols [1999] FCA 209
Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 200 CLR 286
Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468
Prain v Comcare [2017] FCAFC 143
Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310
Secondary Materials
Black’s Medical Dictionary, Forty-Third Edition, Bloomsbury, 2017
Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, Text Revision, American Psychiatric Association, 2009
Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, American Psychiatric Association, 2013Gould’s Medical Dictionary, Third Edition, McGraw Hill 1972.
REASONS FOR DECISION
Member Mark Hyman
04 April 2019
This decision is about whether Mr Steven Budarick, the applicant, can continue to receive compensation from the Australian Capital Territory, the respondent. Mr Budarick received compensation payments from Comcare (the respondent in this matter until the Australian Capital Territory became a licensee) over a number of years in respect of an injury sustained in 1997. On 4 August 2017 Comcare decided that there was no present liability for medical expenses under section 16 of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) and no present liability for incapacity under section 19 of that Act. That decision was affirmed in a reconsideration determination dated 16 August 2017. The reconsideration determination is a decision for which application for review may be made to this tribunal under section 64 the SRC Act. On 29 September 2017 Mr Budarick applied to the tribunal for review of Comcare’s decision.
The tribunal held a hearing on 14 February 2019. Mr Budarick appeared in person, representing himself, and gave evidence. Ms Kristy Katavic of Counsel appeared for Comcare, instructed by Ms Elizabeth West of Comcare. Dr Tony Kostos, a consultant rheumatologist, appeared by telephone as an expert witness. The tribunal had available the documents (the “T-documents”) provided by Comcare under section 37 of the Administrative Appeals Tribunal Act 1975 (the AAT Act); documents provided by Comcare under section 71 of the SRC Act; and a number of documents tendered before or at the hearing. The last includes material provided in the context of an earlier application by Comcare to dismiss this matter as having no reasonable prospects of success:
·a note addressed to Centrelink dated 16 August 2018 from Dr Robert Reid, one of Mr Budarick’s treating doctors (Exhibit A1);
·a report by Dr Jigna Hapani, Pain Management Registrar at Canberra Hospital and Health Services, undated but referring to a “clinic date” of 6 August 2018 (Exhibit A2);
·material obtained under summons from Dr Robert Reid, one of Mr Budarick’s treating doctors, comprising medical reports, medical certificates, letters, completed forms and notes, dating between 1994 and 2007 (Exhibit R1); and
·a determination dated 6 July 1995, made by Comcare on reconsideration of own motion, affirming a decision of 16 July 1993 ceasing liability to pay compensation to Mr Budarick (Exhibit R2).
Additional material tendered at the hearing comprises a further note to Centrelink from Dr Reid, also of 16 August 2018 (Exhibit A3); further medical certificates for Mr Budarick, signed by Dr Reid, dated 20 November 2017, 19 February 2018 and 14 May 2018, and by Dr Parham Parvanizia dated 20 August 2018 (Exhibit A4); and a supplementary report by Dr Kostos dated 26 June 2018 (Exhibit R4).
As noted above, during the history of this matter up to and including the hearing, Comcare was the respondent. That changed on 1 March 2019, when the decision to grant a licence to the Australian Capital Territory (ACT) under the SRC Act took effect. With that decision liability under the SRC Act in the present matter transferred to the ACT, which became the respondent. In anticipation of that change, the ACT was alerted to the case and invited to apply to be joined in the matter; it did not do so and made no other representations to the tribunal in respect of it. This decision applies to the ACT as respondent despite Comcare having been the respondent that appeared in the proceedings. The text of the decision in most cases refers to Comcare as the respondent, as it was Comcare that managed Mr Budarick’s accepted injury over 20 years, took the decision that liability had ceased, prepared the matter for hearing, appeared at the hearing, led evidence and made submissions to the tribunal.
ISSUES
The issues before the tribunal in this matter are:
·the diagnosis of Mr Budarick’s accepted injuries;
·whether Mr Budarick continues to suffer from the accepted injuries, as at 4 August 2017 and up to the present;
·whether those injuries continue to satisfy the required nexus with employment, that is
owhether they continue to meet the test that they arose out of or in the course of Mr Budarick’s employment, or
owhether they continue to meet the test that they were materially contributed to by Mr Budarick’s employment;
·if so, whether Mr Budarick reasonably required medical treatment in relation to the accepted injuries between 4 August 2017 and the present;
·whether Mr Budarick was incapacitated for work as a result of the injuries between 4 August 2017 and the present; and
·whether Mr Budarick remains entitled to compensation under the SRC Act.
THE LEGISLATIVE FRAMEWORK
The legislation governing this matter is the SRC Act, which provides for compensation to be paid in respect of injuries occasioned by employment. The version of the Act that applies in the present matter is that in force at the time of the injury. This is important because in one particular aspect the relevant provisions have changed: the earlier version sets a test for the nexus between employment and the disease suffered by a person which is different from that in the current version of the Act.
Subsection 4(1) of the Act as it stood at the time of Mr Budarick’s injury, defines an injury, for the purposes of the Act, as follows:
"injury" means:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee's employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), being an aggravation that arose out of, or in the course of, that employment;
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment;
Subsection 4(1) also defines a disease, as follows::
"disease" means:
(a) any ailment suffered by an employee; or
(b) the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee's employment by the Commonwealth or a licensed corporation;
Subsection 4(1) also defines “ailment” to mean “any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)”.
Section 14 of the SRC Act is the gateway provision for compensation within the Act’s legislative framework. It provides that liability to pay compensation arises in respect of an injury suffered by an employee if it results in death, incapacity for work or impairment (subject to exclusions not presently relevant). Later parts of the Act then provide for compensation to be paid in particular circumstances where specified criteria are met; in particular, section 16 provides for compensation for the cost of medical treatment reasonably obtained in relation to the injury and section 19 provides for payment where an employee is incapacitated for work as a result of an injury.
THE HISTORY OF MR BUDARICK’S INJURY
There is a long history to Mr Budarick’s compensation claim. In 1997 Mr Budarick was working for the ACT Department of Urban Services, as a gardener. He had worked there for about 15 years. Mr Budarick suffered an earlier back injury while working for the Department in 1991; he claimed compensation. Comcare initially accepted liability but on 16 July 1993 determined that liability had ceased. That decision was affirmed in a reconsideration determination dated 28 October 1993. Mr Budarick applied for review by this tribunal, which affirmed the reconsideration determination on 14 February 1994 (see Budarick and Comcare [1994] AATA 85). Mr Budarick reported sustaining further injuries on 2 and 25 August 1994. In 1995 Comcare made an own motion reconsideration of the determination of 16 July 1993 (Exhibit R2). The delegate affirmed the 1993 decision.
Mr Budarick made a further claim for workers’ compensation,[1] the claim that is the basis for the present matter, on 29 October 1997 in respect of a back condition which he said was brought about by events occurring on 1 October 1997. This injury occurred when Mr Budarick hurt his back when he removed a grass catcher and emptied the grass into a plastic garbage bag[2] (other records mention pushing a hand mower[3] or bending over without bending his knees[4]). This confusion has no relevance for present purposes. Comcare denied liability for “acute thoracic back strain” under section 14 of the SRC Act[5] and affirmed that decision in a reconsideration determination dated 22 June 1998.[6] Mr Budarick applied to this tribunal for review of that determination;[7] in a decision dated 8 August 2000 the tribunal set aside the reviewable decision and substituted a decision that Comcare was liable to pay compensation in respect of a chronic pain disorder (Budarick and Comcare [2000] AATA 673).
[1] T11, folios 15-22.
[2] T7, T11.
[3] T20, folios 34-5.
[4] T23, folios 49-50.
[5] T14, folios 25-6, dated 17 December 1997.
[6] T30, folios 59-65.
[7] T33, folios 70-1.
Comcare decided in 2004 that it was not presently liable for medical treatment of Mr Budarick under sections 16 and 19 of the SRC Act[8] and affirmed that decision in a reconsideration determination dated 26 April 2005.[9] Mr Budarick again applied for review,[10] and by a consent decision of this tribunal dated 24 November 2005[11] Comcare accepted liability for incapacity and medical treatment (under sections 19 and 16 of the SRC Act) in respect of a chronic pain disorder occasioned by events occurring on 1 October 1997.
[8] T152, folios 329-30.
[9] T160, folios 373-82.
[10] T161, folios 383-4.
[11] T173, folios 420-1.
Those are the significant decisions leading up to the determination of 4 August 2017[12] and the reconsideration determination of 16 August 2017.[13] Before the matter came to be heard, Comcare applied to the tribunal for dismissal of the matter under section 42B of the Administrative Appeals Tribunal Act 1975 on the grounds that it was either misconceived or had no reasonable prospects of success. I rejected the application to dismiss, on the grounds that although Mr Budarick’s case was not a strong one, it could not in my view be said that the case had no reasonable prospects of success, nor that it was misconceived in the way that Comcare contended; thus the criteria for dismissal under subsection 42B(1) of the AAT Act were not met (Budarick and Comcare [2019] AATA 116).
[12] T261, folios 655-7.
[13] T264, folios 662-9.
The proper diagnostic label for the 1997 injury has varied considerably in the past twenty or so years. The initial claim[14] was for an “acute thoracic back strain”, but the tribunal decision assigning liability to Comcare was in respect of a “chronic pain disorder”.[15] Despite that change in diagnosis, Comcare continued to refer to the accepted condition as “thoracic sprain”.[16] Eventually the doctor with whom Mr Budarick appears to have the closest connection, Dr Reid, a sport and exercise medicine specialist, suggested to Comcare that the accepted condition be recharacterised as “chronic lumbar and spinal pain syndrome”.[17] Comcare acknowledged the sense of this but wished to find terms that aligned with their diagnostic code[18] and settled on “pain in the thoracic spine” and, as a secondary condition, “myalgia and myositis, unspecified”.[19]
[14] T11, folio 16.
[15] T40, folio 140.
[16] See for example T52, T60, T92, T104.
[17] T190, folios 442-3.
[18] T197.
[19] T198, T199.
This diagnostic variation affects this decision in two ways. First, it is relevant to whether the condition from which Mr Budarick suffers is an injury under paragraphs (b) or (c) of the definition of “injury” (that is, an injury variously termed “an injury in the ordinary sense”, or “frank injury” or “injury simpliciter”) or a disease (paragraph (a) of that definition), which is important because the nexus with employment for the two kinds of injury, needed to establish compensability, is different. Second, the characterisation of the condition affects the understanding of what in an employment context might have contributed to it or brought it about. Thus the diagnosis affects both the kind of test that is applied under the SRC Act and the substance of the test in each case.
The decision under review relates to Comcare’s liability at the time of that decision, that is, at 16 August 2017; my jurisdiction extends from that date to the date of this decision. I have therefore not made findings regarding the period preceding 16 August 2017, but the evidence obliges me to consider questions of the nexus with employment extending back to well before that date.
Considerable effort over a sustained period was put into rehabilitation of Mr Budarick and enabling him to return to work. He undertook a number of return-to-work programs[20] but none were successful. In April 2002 he left the employment of the Department of Urban Services, either on involuntary retirement[21] or by accepting a voluntary redundancy[22] (nothing in this decision turns on which of those options is correct). In subsequent decisions Comcare remained liable under section 14 of the SRC Act but denied liability for particular elements of compensation, such as a bed or mattress and a long-handled reacher for picking up rubbish.[23]
[20] See for example T44, T53, T54, T55, T73, T77, T80, T85, T86, T93, T94, T238, T239, T241, T243, T246, T247.
[21] T92, folio 206.
[22] T127, folio 272.
[23] T115, T129, T136, T138, T152, T160, T173.
THE MEDICAL EVIDENCE
A significant amount of medical evidence is available, some dating from before the 1997 incident which is the starting point for Mr Budarick’s compensable injury.
Evidence preceding and immediately following the 1997 incident
Exhibit R1 includes a number of medical reports from earlier than 1997:
·In a report dated 15 August 1995 Dr Gytis Danta, a neurologist, reported that Mr Budarick had injured his back on 19 February 1991; that after some treatment and time off he had shown a good deal of improvement but symptoms persisted; and that he now had a chronic pain problem which arose from the 1991 soft tissue injury and was likely to remain with him.
·Dr Reid produced a report for Mr Budarick’s solicitors dated 2 November 1995; the report noted that Mr Budarick had injured his back in 1991; that he had aggravated this in incidents occurring on 2 and 24 August 1994; that he was greatly improved since those later injuries and was continuing to improve; and that his injury was work-related and was unlikely to be permanent.
·Dr John Corry, a consultant in rehabilitation medicine, provided a report dated 3 April 1996. Dr Corry reported the 1991 incident; a partial recovery up to 1994; and aggravation of the back injury on 2 and 24 August 1994 leading to increasing problems with pain. He concluded that the events of August 1994 were an aggravation arising out of work-related activities; and that Mr Budarick remained at higher risk than other people of further back episodes.
In these reports there are references to other material not in evidence: to reports from other doctors, including psychologists and psychiatrists and to reports of imaging of Mr Budarick’s back. There are also some handwritten clinical notes, apparently from Dr Reid. The comments made in the reports suggest that the material not in evidence would not throw any further light on Mr Budarick’s present condition: the psychologist and psychiatrist apparently concluded that Mr Budarick did not have a diagnosable psychiatric condition, and the imaging of Mr Budarick’s spine did not suggest any real problem. Nor do Dr Reid’s notes throw any additional light on the matter (they merely record the observations that he later included in his reports).
The first medical attention Mr Budarick received following the 1997 incident was from Dr R Wolska. Medical certificates dated 2 October 1997and 7 October 1997 certify Mr Budarick for leave from his employment for two weeks; a brief report dated 19 March 1998 diagnosed “acute thoracolumbar back strain”, attributed it to activities during his employment and suggested that the incident represented a recurrence of symptoms from previous injuries.
Evidence of Dr Robert Reid
As noted above, Mr Budarick was seeing Dr Reid before the 1997 injury, and he continued to see him afterwards and up to the present. A series of letters and reports record Mr Budarick’s progress over about twenty years and Dr Reid’s opinion on his condition and its causes. Dr Reid’s first report provided as part of the documentary record after the 1997 incident[24] is dated 13 February 1998. He reported that Mr Budarick told him of the injury; that he had flashes of pain down his right arm, lasting for a second but occurring quite frequently; and that he had other pains in his back, especially around the thoracic area and to the upper lumbar area. Dr Reid diagnosed strain of the thoraco-lumbar muscles, more on the right than the left.
[24] T 20, folios 34-5.
Over the years that followed Dr Reid maintained considerable interest in Mr Budarick’s progress, and supported the provision of various forms of therapy or other support, including general rehabilitation,[25] acupuncture,[26] massage,[27] psychology consultations;[28] and also other aids, such as an improved bed,[29] and a long-handled reacher for picking up rubbish.[30]
[25] T45, folio 149; T48, folio 154.
[26] T58, folio 166.
[27] T96, folio 214; T102, folio 234; T111, folio 252; T121, folio 265; T143, folios 316-7.
[28] T62, folio 170; TT96, folio 214; T102, folio 234; T111, folio 252; T121, folio 265.
[29] T114, folio 256; T117, folios 260-1.
[30] T116, folio 259; T133, folio 286.
Two themes that are apparent in Dr Reid’s various letters are that first, there is a significant psychological element in Mr Budarick’s condition;[31] and in his medical certificates he begins to refer to Mr Budarick having depression or depressive symptoms.[32] He also suggests that Mr Budarick does not have a “mechanical” problem in his back, or any form of physical pathology.[33]
[31] See e.g. T62, T96, T102, T143, T154.
[32] See e.g. T103
[33] T117, T151, T154, T 159.5 (dated 25 February 2005).
In a report dated 27 November 2007[34] Dr Reid stated that his diagnosis of Mr Budarick was of “chronic lumbar and spinal pain syndrome”; that this condition was unchanged in 10 years; and that the condition was highly resistant to numerous therapies that had been trialled over the years. In 2011 Dr Reid sought and obtained approval[35] for Mr Budarick to have his back imaged with a SPECT/CT bone scan. The result was that the image was largely unremarkable, but that there was mild facet joint arthritis at L4/5 on the right and degenerative arthritis at the left lower sacroiliac joint. In a report dated 19 December 2012[36] Dr Reid identified Mr Budarick’s condition as arising initially from an incident in the workplace in 1991. That incident involved “lifting a towball from a trailer”. There is reference further to two further “reinjuries” in August 1994. Dr Reid describes the condition as not degenerative and states that the condition has not been superseded by a different condition.
[34] T190, folios 442-3.
[35] T210, folio 476; T212, folio 478; T213, folio 479.
[36] T223, folios 503-4.
Dr Reid provided a further report dated 15 June 2016 in which he noted that a recent biopsychosocial assessment through the ACT Government had concluded that Mr Budarick did not require treatment for return to work as he was active and working as a volunteer. Dr Reid took issue, as he did not believe that Mr Budarick could return to work: he had gone through six return-to-work programs, all of which had failed. Dr Reid thought it important for Mr Budarick to remain active and continue as a volunteer. Dr Reid provided two further reports, both dated 16 August 2018 and both addressed to Centrelink (it is implicit in the reports that Mr Budarick was applying for, or being assessed for, a social security benefit; from evidence at the hearing, it appears that the benefit was a disability support pension). Dr Reid stated that Mr Budarick had suffered from chronic pain since 1991 and would continue to be unfit for work or study “for ever”.
Mr Budarick gave Dr Reid’s name as a witness who would appear for him at the hearing. At the commencement of the hearing, however, he advised that Dr Reid would, so far as he was aware, be unable to appear, as he had gone to New Zealand to attend a conference. Mr Budarick stated that his appearance was a matter for “divine intervention”. Mr Budarick’s only contact details for Dr Reid were for his office in Canberra. The hearing proceeded without Dr Reid as a witness.
Psychiatric evidence
From the time of his 1997 injury and indeed from before that date there have been questions about whether Mr Budarick’s injury has a psychological component or is essentially of psychological origin. He saw a succession of psychiatrists, although the most recent psychiatric report dates from 2005; there is no recent assessment available.
Dr W Glaser, a consultant psychiatrist, provided a report dated 9 April 1999.[37] In that report Dr Glaser mentioned that he had seen Mr Budarick previously and had provided reports dated 30 June 1993 and 13 June 1996, and that Mr Budarick had also been assessed by other psychiatrists (none of these reports are presently in evidence). For the 1999 report, Dr Glaser examined Mr Budarick and concluded that although he had some odd speech patterns, these were no more than a personal idiosyncrasy; Mr Budarick was not suffering from a “major identifiable psychiatric disorder”, and so the question of causation by employment did not arise. Dr Glaser thought Mr Budarick’s health problems were physical rather than psychiatric.
[37] T35, folios 77-86.
Mr Budarick saw Dr William E Lucas, a psychiatrist, who provided a report dated 26 July 1999. Dr Lucas diagnosed “a chronic pain disorder as defined by DSM IV”. It is apparent that Dr Lucas saw Mr Budarick’s pain as not entirely psychological in origin, but having a physical contribution as well:
Psychological factors are clearly important in the pain, perhaps affecting severity as well as its exacerbation and maintenance. … The recent episode of injury appears to have been mild but with important effects on Mr Budarick’s functioning. Exacerbations of his pain disorder may require relatively little precipitation. … Mr Budarick’s pain appears to be related to his back injury. His pain disorder appears to have been exacerbated by relatively minor injuries.
Mr Budarick began seeing a psychologist, Dr Leigh Nomchong (no reports from Dr Nomchong are in evidence), but Dr Reid apparently felt that psychiatric consultations could contribute to treatment of Mr Budarick, especially with regard to medication. In 2004 Dr Reid referred Mr Budarick to Dr William Knox, a consultant psychiatrist. Dr Knox’s first report,[38] made to Dr Reid and dated 19 February 2004, is essentially introductory, noting Mr Budarick’s pain issues (which he would leave to Dr Reid) and the limited medication he was on at the time. Dr Knox denied a diagnosis of major depression while noting some low level depressive symptoms. Dr Knox provided a further report to Dr Reid on 19 August 2004[39] (and it appears that this brought to an end his engagement with Mr Budarick as a treating psychiatrist). He offered the view that Mr Budarick suffered from “genuine pain”; that this was probably of soft tissue origin; that psychological factors played a role in reinforcing the pain, although “his nervous system may have ’learned’ reverberating pain loops in some way”.
[38] T134, folio 287.
[39] T146, folio 320.
Dr Knox also provided medico-legal reports, one dated 13 July 2004[40] and a second dated 18 August 2005.[41] In the earlier report Dr Knox stated that so far as he could tell Mr Budarick’s pain was genuine, he was unresponsive to treatment, and he had become hopeless and helpless. He did not have a psychiatric disorder, or somatoform or factitious disorder, or a personality disorder. His prognosis was poor and stable. In the later report Dr Knox linked Mr Budarick’s pain condition to the 1991 incident (indeed the report does not mention the 1997 incident). Again Dr Knox declined to diagnose a psychiatric disorder, specifically denying chronic pain disorder as identified in DSM IV. He saw Mr Budarick’s pain condition as triggered by the 1991 incident and then reinforced by other work-related factors, such as returning to work too soon and criticism in the workplace. The break-up of Mr Budarick’s marriage in late 1991 was also identified as a reinforcing factor. In a final two-paragraph letter dated 26 September 2005[42] Dr Knox reiterated his view that Mr Budarick’s pain was physical in origin.
[40] T158.1, folios 340-5.
[41] T165, folios 392-400.
[42] T171, folio 418.
In 2005 the Australian Government Solicitor referred Mr Budarick to Dr John Saboisky, a consultant psychiatrist. In a report dated 14 September 2005[43] Dr Saboisky offered the opinion that Mr Budarick suffered from a schizoid personality disorder which was constitutional in origin; and that he also had dysthymic symptoms which appeared to derive in part from his work-related pain disorder.
[43] T170, folios 411-417.
Evidence from other doctors 1999-2005
In the context, it appears, of the review by this tribunal in 2000, Mr Budarick attended a number of specialists who could comment on his physical condition. A report from Dr F E Keiller, a surgeon, is dated 1 April 1999.[44] It recounts Mr Budarick’s 1991 injury (and an earlier injury in 1989) and concludes that Mr Budarick had “no objective abnormal signs” suggesting more than a minor soft-tissue injury, which would have resolved quickly. There might be psychological issues.
[44] T34, folios 72-6.
Dr Owen White, a neurologist, prepared a report dated 3 June 1999.[45] Dr White diagnosed a chronic pain syndrome complex in causation but deriving from successive soft tissue injuries to the lower back, with a substantial psychological component.
[45] T36, folios 87-91.
Dr Andrew Lark, an occupational physician, prepared a report dated 14 January 2000[46] assessing Mr Budarick for partial invalidity retirement. Dr Lark concluded that Mr Budarick, although affected by his chronic pain syndrome, should continue on the reduced duties and hours at which he was at that time working.
[46] T38, folios 103-107.
In 2002 Mr Budarick attended Mr Ian Brown, a consultant orthopaedic surgeon. In his report,[47] dated 9 May 2002 Mr Brown reported that he could identify no structural abnormalities, and that Mr Budarick’s symptoms were “strongly influenced” by psychological factors. Nevertheless, Dr Brown concluded that “Mr Budarick’s problem appears to have arisen as a result of employment related factors”. In a supplementary report dated 12 December 2002[48] Dr Brown provided further opinion regarding the degree of impairment Mr Budarick had suffered but none of his comments are relevant for present purposes.
[47] T99, folios 219-224.
[48] T109, folios 247-8.
Dr Peter Stevenson, a consultant physician, provided a report dated 23 June 2004.[49] Although that report was prepared in the specific context of Mr Budarick’s request for a new bed or mattress (which he opposed), he provided general comment on Mr Budarick’s condition and prognosis. Dr Stevenson’s report concluded that “The present chronic pain syndrome was not actually caused by an injury in the employment”. He denied any material contribution from employment and suggested that Mr Budarick had adopted “the sick role”.
[49] T140, folios304-12.
A report from Dr Neil McGill, a consultant rheumatologist, is dated 22 August 2005.[50] Dr McGill concluded that Mr Budarick displayed “abnormal illness behaviour” and, as he did not show the behaviour typically associated with pain, could not be described as having a chronic pain syndrome. Dr McGill did not believe that he had any abnormal physical disorder. He did not see any contribution from employment. Supplementary brief reports,[51] written after Dr McGill had seen additional information, including recent x-ray reports, did not lead to any change to his opinion.
[50] T166, folios 401-7.
[51] T167, folio 408. T169, folio 410.
Mr Budarick attended the Pain Management unit at the Canberra Hospital, on 6 August 2018, seeing Dr Jigna Hapani, the Pain Management Registrar. Dr Hapani, after viewing the results of the bone scan referred to above, and finding tenderness on the midline and paramedian area bilaterally between T9 and T11, proposed bilateral facet joint diagnostic injections at T9 to T11.
Evidence of Dr Kostos
Dr Tony Kostos, a consultant rheumatologist, saw Mr Budarick in 2017. In his report,[52] dated 7 June 2017, he diagnosed a chronic regional pain syndrome affecting the thoraco-lumbar spine (“The only possible diagnosis I can make”), which implies “ongoing pain in the absence of any identifiable physical abnormality”. He did not accept that any physical incident in Mr Budarick’s employment materially contributed to his current presentation: he put the view that other factors, including psychological and social factors, have a role in such conditions, and physical incidents are not a trigger but “simply another stressor”. Dr Kostos held back from giving a clear answer to the question whether Mr Budarick’s current presentation would have arisen irrespective of his employment. Dr Kostos said he entirely agreed with the 2004 report of Dr Stevenson.
[52] T256, folios 641-6.
Comcare asked Dr Kostos to prepare a supplementary report, and he provided such a report dated 26 June 2018.[53] Dr Kostos repeated his diagnosis and once again stated his opinion that there was no material contribution from employment. He further stated that on examination Mr Budarick had exhibited “non-organic findings as described by Waddell with marked tenderness”. He said that Mr Budarick’s condition “does not relate to the physical aspects of employment or any specific injury” but to psychosocial factors.
[53] Exhibit R4.
In oral evidence Dr Kostos reiterated much of what was in his written reports. He also said that the bone scan done in March 2012 was “a waste of time and irrelevant” and could not determine the cause of back pain, but in any case showed no structural abnormality. He stated that the thesis that a series of soft tissue injuries could give rise to a chronic pain syndrome was “complete nonsense”. There was no relation between Mr Budarick’s former employment and his current condition. As for the treatment he had received over the years, Dr Kostos thought that all forms of therapy that had been offered to Mr Budarick were non-evidence based and it was therefore not a surprise that they had failed. He advised against proceeding with the facet joint injections proposed by Dr Hapani, stating that the results of the bone scan provided no basis for the intervention.
Under questioning, Dr Kostos explained that an English doctor named Waddell had written a book drawing attention to patterns of symptoms regarding back pain that exhibited inconsistencies and did not align with actual physical injuries. These signs indicated back pain of non-organic source, usually driven by psychosocial factors, personality traits, previous life experiences, attitudes and beliefs and a lack of adaptability to cope with anxiety and stress. Dr Kostos said that it is still contentious whether physical injuries can be the triggering stressor for the development of a chronic pain response of this kind. Typically in these cases one would find a long history of symptoms over many years, preceding the occurrence of a stressor with which the patient is unable to cope, in turn setting off the chronic pain syndrome.
CONSIDERATION
The case made for Comcare is that there is no present liability for medical expenses and incapacity under sections 16 and 19 of the SRC Act as of 4 August 2017. That case is based on medical evidence that Mr Budarick’s chronic pain syndrome is not a condition to which his former employment made a material, or indeed any, contribution. I could not say that Mr Budarick, in response, presented a case to me. He did not appear to have a satisfactory grasp of the case made by Comcare and did not outline a basis for why I should make findings at odds with those advocated by Comcare. But, as I noted in denying Comcare’s earlier application to dismiss the matter as having no reasonable prospects of success, there is an alternative case theory implicit in some of the succession of medical reports, namely those of Dr Danta, Mr White, Dr Lucas, Mr Brown, Dr Knox, and Dr Reid. On this implicit case theory Mr Budarick’s pain syndrome was initially caused by back injuries at work, and although he now has no identifiable physical ailment, and his present condition may be contributed to by psychosocial factors, it remains that Mr Budarick’s employment made a material contribution to his condition by having been its starting point.
It will be apparent that Comcare’s argument – especially if Dr Kostos’s evidence is accepted - implies that at no time did employment ever make a contribution to Mr Budarick’s condition, and that the conclusion could therefore be drawn that liability could be denied from an earlier date than 4 August 2017. But liability before that date is not within my jurisdiction: the decision under review denies liability under sections 16 and 19 of the SRC Act from the date of the initial determination, namely 4 August 2017, and that determines the scope of my review. I will therefore refrain from making any findings about liability before that date.
What is the diagnosis of Mr Budarick’s condition?
A great deal about Mr Budarick is uncontroversial. He has given a consistent history to many different doctors (or, where he has been able to give a history, it has been a consistent history) over a long period. It seems plain that he was a healthy and active person up to 1991; that he suffered a minor back injury in 1988 or 1989, an injury that appears to have resolved quickly with no lasting consequences; that he injured his back once again in 1991 which seems to have resolved after a period of about three years; that his back gave him further problems after injuries in August 1994; that he suffered a further back incident in 1997; and that during much of the 1990s and in the years since he has had a problem with pain.
No doctor has openly suggested that Mr Budarick is feigning his pain, although more than one has noted that there is a mismatch between the reported pain and his affect and behaviour.[54] The evidence that he has no physical ailment of any significance seems to be widely accepted among the doctors that have seen him, including Dr Reid and Dr Kostos.[55] Most of the doctors who have examined or treated him have diagnosed his condition as a chronic pain syndrome;[56] some have noted that as a reasonable diagnosis but stopped short of endorsing it;[57] other doctors either arrive at a different diagnosis or deny the appropriateness of chronic pain syndrome as a diagnosis.[58] It is apparent, too, that in using the term “chronic pain syndrome” the psychiatrists (Drs Glaser, Lucas and Knox) are referring to a diagnosis made under DSM IV, which required certain specific diagnostic criteria to be met. Other doctors seem to be using a more informal understanding in which the diagnosis means persistent pain in the absence of any identifiable physical cause. I note that DSM-5 has now replaced DSM IV, and with it the diagnosis of “pain disorder” has gone, replaced by “somatic symptom disorder”. The guidance on that disorder states that “The diagnoses of somatic symptom disorder and a concurrent medical illness are not mutually exclusive and these frequently occur together”. That would seem to leave open the possibility that physical incidents can be the trigger for, or an accompaniment to, the development of a somatic symptom disorder.
[54] See e.g. T39. folio 109 (Dr Glaser); T140, folio 309 (Dr Stevenson); T166, folio 406 (Dr McGill).
[55] See e.g. T117, folio 260 (Dr Reid); T159.5, folios 371, 372 (Dr Reid); T256, folio 643 (Dr Kostos).
[56] Mr White (T36, folio 87); Dr Lucas (T37, folio 101); Dr Stevenson (T140, folio 309); Dr Kostos (T256, folio 643); Dr Reid argued for Comcare to adopt the diagnosis “chronic spinal pain syndrome” (T143, folio 316; T163, folio 389; T190, folio 442; T198, folio 460).
[57] Dr Knox, T165, folio 399, denying any diagnosis from DSM IV; Dr McGill, T166, folio 406, diagnosing “abnormal illness behaviour”.
[58] Dr Keiller, T34; Dr Glaser, T35 and T39; Mr Brown T99 diagnosing recurrent thoracic strain; Dr Saboisky, T170, folio 415, diagnosing a schizoid personality disorder.
Dr Reid urged Comcare to adopt the diagnosis “chronic spinal pain syndrome” and accepted that Mr Budarick had “no mechanical problem with his back”.[59] Despite so doing he accepted Comcare’s adoption of a diagnosis of “thoracic sprain” and a secondary condition of “myalgia and myositis, unspecified”. That appears to be the current diagnosis, but the reference to “thoracic sprain” is completely at odds with the general acceptance that there is no physically identifiable basis for Mr Budarick’s pain; it is also inconsistent with Mr Budarick’s history, in that a sprain is a joint injury which would be expected to settle quite quickly rather than persist for 20 years or more.
[59] T117, folio 260.
Dr Reid’s own theory is that Mr Budarick suffers from “nociceptive pain”, which Dr Reid explains[60] as follows:
He has nociceptive pain, which is a chronic pain condition without any physical disability on any imaging measure. It arises from the ingrowth of nociceptors into the region of previous injury which causes pain on any type of stimulation.
On another occasion[61] Dr Reid stated that Mr Budarick “does not have a mechanical problem with his back, but rather a nociceptive problem, in that he had neuropathic pain which is unresponsive to any treatments thus far attempted.”
[60] T159.5, folio 371.
[61] T117, folio 260.
Dr Kostos, in his supplementary report,[62] and in oral evidence, took issue with Dr Reid’s use of and description of “nociceptive pain”. In his view, nociceptive pain arises from a physical cause “such as a structural abnormality and/or damage”. He also suggested that there is no evidence of neuropathic pain in Mr Budarick’s history. Dr Kostos inferred that Dr Reid’s reasoning was contradictory and that the effect of Dr Reid’s treatment program was that Mr Budarick’s condition had been “medicalised”, which in turn had contributed to perpetuating his injury.
[62] Exhibit R4.
The medical literature seems to support at least part of Dr Kostos’s understanding. Gould’s Medical Dictionary[63] defines “nociceptor” as “a high-threshold receptor which responds only to stimuli such as burning, crushing, cutting or pressure sufficiently intense to cause tissue damage, whose excitation gives rise to a sensation of pain and elicits a protective reflex pattern”. Black’s Medical Dictionary[64] defines “nociceptors” as “nerve endings which detect and respond to painful or unpleasant stimuli”. That does not seem entirely consistent with Dr Reid’s denial of a physical cause for nociceptive pain or assertion of equivalence or correspondence of some kind between nociceptive and neuropathic pain.
[63] 3rd edition, McGraw Hill 1972.
[64] 43rd edition, Bloomsbury, 2017.
Ultimately, the question to be resolved for the purposes of the review is not the appropriate diagnosis, although a diagnosis is often helpful in determining whether a condition derives from employment. In this instance it is not apparent to me that I need to arrive at a clear and unique diagnosis in order to resolve that issue; many of the doctors have provided an explicit indication regarding the possibility of a link between Mr Budarick’s condition and his employment. To the extent that it is useful, my finding is that Mr Budarick’s condition is best described as “chronic pain syndrome”, but in the sense used by the non-psychiatrists, that is, chronic pain with no identifiable physical cause.
Does Mr Budarick still suffer from his accepted injury?
One of the clearest aspects of this case is that little has changed since 2000 when this tribunal set aside Comcare’s decision and decided that Mr Budarick was entitled to compensation for a chronic pain disorder. Mr Budarick’s condition, whatever its cause and however it is characterised, is very much now as it was then, and indeed remains much as it was when first identified by Dr Danta in August 1995. I find that he continues to suffer from his accepted injury
Does Mr Budarick’s pain condition continue to show the required connection to employment?
The SRC Act identifies two different kinds of conditions which lead to compensation being paid if a specified nexus with employment is established. Paragraph (a) in the definition of “injury” in subsection 4(1) refers to a “disease”, which is an ailment or aggravation of such an ailment that is contributed to in a material degree by employment; paragraphs (b) and (c) of the definition refer to an injury other than a disease or an aggravation of such an injury arising out of or in the course of employment. Thus two different tests are set for the two different kinds of potentially compensable condition. In the present case a decision about whether the respondent remains presently liable may therefore depend on which kind of “injury” Mr Budarick has suffered: whether it is an “ailment” (a physical or mental ailment, disorder, defect or morbid condition) or a “frank injury” (as injuries other than a disease are often termed).
There is extensive case law dealing with the sometimes difficult distinction between an ailment and a frank injury. Relevant cases include Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468 (May); Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310; Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 200 CLR 286 (Kennedy Cleaning); Bailey v Broadsword Marine Contractors [2017] FCAFC 219; and Prain v Comcare [2017] FCAFC 143. Generally, a condition that is an injury (other than a disease) will involve “a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state” (Kennedy Cleaning, at 300 (Gleeson CJ and Kirby J)). In May Gageler J referred to an “injury in the ordinary sense” in the following terms: “An injury … is some definite or distinct ‘physiological change’ or ‘physiological disturbance’ for the worse which, if not sudden, is at least ‘identifiable’” (at [75]; citations omitted). The plurality in May (French CJ, Kiefel, Nettle and Gordon JJ) understood the drafting of section 5A of the SRC Act to imply that the first inquiry of the decision-maker is whether the employee suffered a disease; if the answer to that question is in the affirmative, no inquiry regarding an injury other than a disease is required (at [44]; at [73] Gageler J dissented from that construction, taking the view that the questions posed by the subsection did not need to be asked in statutory order).
It is reasonably clear that the condition Mr Budarick presently suffers from is best characterised as an ailment: it arose over a period of time (possibly as long as six years from 1991 to 1997). But under the implicit case theory I have attributed to Mr Budarick, the trigger (or triggers) for the development of the chronic pain syndrome was one or more acute back injuries, each of which appears to have been minor. These events would each be characterised as a frank injury, or, more accurately under the SRC Act, as a frank injury and subsequent aggravations, applying the distinction drawn in Kennedy Cleaning and May. For present purposes, the 1997 incident – the only incident within jurisdiction in the present review - would then be an aggravation of an earlier frank injury. The chronic pain syndrome would then be a sequela of that aggravation, that is, a secondary condition arising from it.
Ms Katavic argued that any evidence relating Mr Budarick’s condition to the 1991 or earlier incident could be disregarded, but I do not agree. The 1997 incident has been regarded by many of his doctors as related to or an aggravation of his earlier back injuries, and the SRC Act provides for aggravations of existing injuries to be compensated. I find that the 1997 incident that is postulated as giving rise to Mr Budarick’s condition is a “frank injury” that is compensable if it continues to meet the test of arising out of or in the course of his then employment.
If I am wrong, and the appropriate course is to treat Mr Budarick’s chronic pain condition as a primary condition, then it is an ailment under the SRC Act, and the nexus with employment that must be demonstrated is that employment contributed “in a material degree” to the condition.
Whether I conclude that Mr Budarick’s condition meets either test depends on which medical evidence I prefer. There are clear opinions that Mr Budarick’s condition arose from his employment, on the part of Dr Reid (folios 371, 442, 503), Dr White (folios 89-90), Dr Lucas (folios 101-2), Mr Brown (folio 222) and Dr Knox (folio 399). There are clear opinions to the contrary from Mr Keiller (folios 75-6), Dr Glaser (folios 83-5), Dr Stevenson (folio 309), Dr Saboisky (folios 415-6), Dr McGill (folio 406) and Dr Kostos (folio 643).
In 2000 this tribunal examined Mr Budarick’s case and came to the conclusion that he suffered from a chronic pain disorder to which his employment made a material contribution; his condition was compensable. That decision is not itself under review – the reviewable decision is that of 16 August 2017 affirming no present liability as of 4 August 2017 – but inevitably I must ask what has changed since 2000 that might lead to a different conclusion. In the present instance, although Mr Budarick’s condition does not appear to have changed, a great deal more medical evidence is now available; only a few of the reports provided for my decision were available to the tribunal in 2000. Nevertheless, of the reports now available, hardly any date from later than 2005.
The one substantial report that does come from a more recent period is that of Dr Kostos, and I also have his even more recent supplementary report and the advantage of his oral evidence at the hearing. The next most recent report of any substance is from Dr Reid, dated 27 November 2007 (more recent reports by Dr Reid are exceedingly brief and mostly on particular subjects rather than appraising Mr Budarick against the criteria set out in the SRC Act). Mr Budarick clearly has a case that could be put to me; but he did not put it and I must decide the matter on the evidence available to me. It is difficult not to give weight to the contemporaneous evidence of the doctor who has provided a report and appeared and subjected himself to cross-examination. Dr Kostos put very plainly that in his opinion employment did not contribute to Mr Budarick’s condition, and certainly not materially.
There are reasons to prefer Dr Kostos’s evidence to that of Dr Reid, in particular. In the first place Dr Reid, although apparently he was asked to provide oral evidence at the hearing, did not appear. Nor did he provide a detailed report bringing his earlier views up to date. Regrettably, I am left without any current evidence from the doctor who has the longest association with Mr Budarick. Further, Dr Reid was not in a position to respond to the criticism of his reasoning and use of terminology by Dr Kostos – criticism which appears to have some foundation.
Ms Katavic suggested that I should regard Dr Reid’s evidence with caution because in some documents he attributes Mr Budarick’s condition to the 1991 incident and in others to the 1997 incident. Thus in medical certificates for Centrelink and Comcare,[65] both of the same date (20 November 2017), Dr Reid gives 1991 as the date of injury on the Centrelink certificate and 1997 as the date of injury on the Comcare certificate. In my view, however, that is consistent with a view of the case in which the critical incident was that in 1991, and the 1997 incident, although the starting point for Mr Budarick’s compensation claim leading to the present hearing, is in practice one of several aggravations to the 1991 incident. As Dr Reid did not appear as a witness, the question could not be tested. I do have some reservations regarding Dr Reid’s evidence, but for the reasons advanced above, not because of those put by Ms Katavic.
[65] Exhibit A4.
It is not as if Dr Kostos’s evidence is out of the mainstream of opinion about Dr Budarick. This is not a case in which a single report would overturn years of contrary opinion about the origins of a medical condition. There is a long train of reports, as described above, with which Dr Kostos’s evidence aligns. On the other side of the ledger, the reports of the psychiatrists, Dr Lucas and Dr Knox, must be discounted to some extent because they cannot speak with authority about the physical injury or injuries that appear, in their opinion, to have been triggers for Mr Budarick’s pain problems. Ms Katavic urged that I should discount Dr White’s report, in that a neurologist was not so well positioned as doctors in some other disciplines to reach conclusions regarding a condition where neurological problems do not appear to arise. I am not persuaded by that argument; it is hard to accept that a neurologist would be necessarily without insight into a pain problem. Ms Katavic also urged me not to rely on Mr Brown’s report, as that had been prepared for the purpose of assessing the extent of Mr Budarick’s permanent impairment. But I note that Mr Brown was specifically asked to comment on the percentage of impairment arising solely from work-related factors, and responded: “Mr Budarick’s problem appears to have arisen as a result of employment related factors”. That is an opinion to which weight must attach regardless of the context.
In Commonwealth v Borg (1991) FCA 710 Jenkinson J noted (at [16]) that a delegate should not make a “ceased effects” decision unless persuaded that at least one of the entitling circumstances had ceased to apply at the relevant date. That approach was supported in Comcare v Nichols [1999] FCA 209 (at 22-23]). My conclusion, taking into account all of the above, is that the weight of the evidence is that employment does not continue to have the necessary connection with Mr Budarick’s former employment. I can see no alternative but to conclude that the best evidence I have is that of Dr Kostos. In a more perfect world there might have been a report from another doctor who might have had a different view; but no such report is available. I find that Mr Budarick’s condition does not continue to meet the test set in the definition of “injury” in subsection 4(1) of the SRC Act; that is, from 4 August 2017 and up to the date of this decision it no longer arose out of or in the course of his employment.
For the purpose of completeness, I would note that if the test to be applied is whether Mr Budarick’s employment contributed, in a material degree, to the condition, my conclusion is the same.
Given that the above decision brings the respondent’s present liability to an end, the other questions, regarding Mr Budarick’s entitlement to medical expenses and incapacity payments from 4 August 2017 to the date of this decision, fall away.
I affirm the decision under review.
I certify that the preceding 68 (sixty-eight) paragraphs are a true copy of the reasons for the decision herein of Member Mark Hyman.
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Associate
Dated: 4 April 2019
Date of Hearing: 14 February 2019
Applicant: In Person
Counsel for the Respondent: Ms Kristy Katavic
Solicitor for the Respondent: Ms Elizabeth West, Comcare Legal
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