BWFS and Comcare (Compensation)
[2021] AATA 324
•26 February 2021
BWFS and Comcare (Compensation) [2021] AATA 324 (26 February 2021)
Division:GENERAL DIVISION
File Numbers: 2016/2491, 2016/3547 and 2019/7865
Re:BWFS
APPLICANT
AndComcare
RESPONDENT
DECISION
Tribunal:Senior Member C. J. Furnell
Date:26 February 2021
Place:Melbourne
1. In respect of matter number 2016/2491, the Tribunal sets aside the reviewable decision and remits the matter to the Respondent for reconsideration in accordance with directions that:
·the Respondent accept that the psychiatric condition is an injury which has resulted in a permanent impairment; and
·in assessing the degree of that impairment, there is to be included as part of the resultant effect of the psychiatric condition the effects on BWFS of the treatment undergone by BWFS at the Northpark hospital in 2016 and 2017, insofar as those effects are permanent;
·in assessing the degree of that impairment BWFS not be considered to have, in the past or presently, been malingering or to have exaggerated the effects of the psychiatric condition; and
·any assessment of the degree of that impairment be undertaken on a basis not inconsistent with these reasons.
2. In respect of matter number 2016/3547, the Tribunal sets aside the reviewable decision and remits the matter for reconsideration in accordance with directions that:
·each of the psychiatric condition and chronic pain syndrome condition was at 23 February 2016, and is, an injury;
·BWFS continued to suffer the effects of each of those conditions as at 23 February 2016, and presently suffers from those effects;
·in assessing the extent of any incapacity for work resulting from the chronic pain syndrome condition or psychiatric condition, BWFS not be considered to have, in the past or presently, been malingering or to have exaggerated the effects of the condition; and
·Any such assessment be undertaken on a basis not inconsistent with these reasons.
3. In respect of matter number 2019/7865, it relates to an application for review of a decision which the Tribunal is satisfied is not reviewable by it. Pursuant to subsection 42A(4) of the Administrative Appeals Tribunal Act 1975, the Tribunal dismisses the application.
....[sgd]....................................................................
Senior Member C. J. Furnell
Catchwords
Permanent impairment compensation – non-economic loss compensation – psychiatric condition – impairment is permanent – degree of impairment uncertain – remitted for reconsideration with direction
Medical treatment cost compensation – incapacity for work compensation – chronic pain syndrome – psychiatric condition – conditions ailments suffered by the applicant – conditions contributed to by applicant's employment – applicant continues to suffer effects of chronic pain syndrome condition – remitted for reconsideration with direction
Reviewable decision – scope – compensation for other injury not the subject of reviewable decision – liability to pay compensation for specific injury – compensation for other injury not issue before the decision maker – Tribunal cannot consider issue of compensation for other injury
Jurisdiction – s 62 Safety, Rehabilitation and Compensation Act 1988 – no reconsideration of determination – additional injury not before decision maker – no reviewable decision
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Cases
Australia v Snell [2019] FCAFC 57
Australian Postal Corporation v Oudyn (2003) 73 ALD 659
Beatson and Military Rehabilitation and Compensation Commission [2010] AATA 190
Beezley v Repatriation Commission [2015] FCAFC 165
BOY19 v Minister for Immigration and Border Protection [2019] FCA 574
Brice and Comcare (Compensation) [2018] AATA 3463
Bureau of Meteorology and Comcare and Anor [2015] AATA 267
Bushby v Morris [1980] 1 NSWLR 81
Canute v Comcare [2006] HCA 47
Collector of Customs v Brian Lawlor Automotive (1979) 2 ALD 1
Comcare v Farrell [2016] FCAFC 115
Comcare v Howard [2019] FCA 1031
Comcare v Lofts [2013] FCA 1197
Comcare v Nichols [1999] FCA 209
Comcare v Power [2015] FCA 1502
Commonwealth v Borg [1991] FCA 710
Dillon and Comcare (Compensation) [2019] AATA 214
Fellowes v Military Rehabilitation and Compensation Commission [2009] HCA 38
Fuad and Telstra Corp Ltd (2004) 39 AAR 496
Harding and Comcare (Compensation) [2019] AATA 4391
Hooley and Comcare [2019] AATA 5176
Howard v Comcare [2019] FCA 1031
Hurley and Australian Capital Territory [2019] AATA 2450
Hutchinson and Comcare (Compensation) [2018] AATA 4357
Irwin v Military Rehabilitation and Compensation Commission [2009] FCAFC 33
Ivill and Comcare [2020] AATA 36
Jordan v Australian Postal Corporation [2007] FCA 2028
Kavas and Comcare [2011] AATA 935
Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 200 CLR 286
KTKY and Comcare (Compensation) [2019] AATA 1123
Lees v Comcare [1999] FCA 753
Liu and Comcare [2004] AATA 617
Luck v Secretary, Department of Human Services (No 2) [2014] FCA 798
Martin and Australian Postal Commission [1999] FCA 655
McDonald v Director-General of Social Security (1984) 1 FCR 354
Military Rehabilitation and Compensation Commission v May [2016] HCA 19
Millar and Comcare (Compensation) [2019] AATA 4973
Neuendorf and Australian Postal Corporation (Compensation) [2019] AATA 2430
Newport v Australian Postal Corporation [2015] FCAFC 194
Novosel v Comcare [2017] FCA 722
O'Connell and Comcare [2012] AATA 532
Prain v Comcare [2017] FCAFC 143
Prowse and Comcare (Compensation) [2019] AATA 411
Ramirez-Gamonal and Comcare (Compensation) [2019] AATA 332
Re Commonwealth of Australia v Keith Colville Smith [1989] FCA 189
Re Lorraine Joy Shearing and Director-General of Social Security [1983] AATA 116
Re Rebeiro & Comcare (1996) 44 ALD 632
Re William Pearson and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 1077
Robson v Military Rehabilitation and Compensation Commission [2013] FCAFC 101
Secretary, Dept of Social Security v Alvaro (1994) 34 ALD 72
Shi v Migration Agents Registration Authority (2008) 248 ALR 390
Singleton v Comcare [2019] FCA 2104
Szabo v Comcare (2012) 58 AAR 152
Tania Leigh Halliday and Comcare Australia [1994] AATA 77
Telstra Corporation Ltd v Arden [1994] FCA 524
Telstra v Hannaford [2006] 151 FCR 253
Thomson and Comcare (Compensation) [2017] AATA 34
Toomey and Secretary, Department of Education, Employment and Workplace Relations [2009] AATA 468
Vincent v Military Rehabilitation and Compensation Commission [2010] AATA 180
Williamson and Comcare [2019] AATA 4774Wilson v Australian Postal Corporation [2014] AATA 805
YWXJ and Commissioner of Taxation [2010] AATA 326
Secondary Materials
Guide to the Assessment of the Degree of Permanent Impairment, Edition 2.1 (Cth)
Dennis Pearce, Administrative Appeals Tribunal (LexisNexis Butterworths Australia, 4th edition, 2015)
REASONS FOR DECISION
Senior Member C. J. Furnell
26 February 2021
This proceeding concerns compensation payable under the Safety, Rehabilitation and Compensation Act 1988 (the Act). An employee is entitled to compensation payable in accordance with the Act, and the Respondent is liable to pay such compensation, in respect of “injuries”[1] suffered by the employee.[2]
[1] Act, s 5A.
[2] Act, s 14.
BACKGROUND
At all relevant times BWFS was an employee, having been employed by the Commonwealth or a Commonwealth authority[3], the Australian Customs Service and then the Department of Immigration and Border Protection.
[3] Act, s 5.
Prior to this proceeding, it had been determined that he had suffered several injuries, comprising:
·A supraspinatus (muscle)(tendon) strain (right) and thoracic sprain suffered by BWFS in 1998 (the 1998 injury).[4]
·A rotator cuff (capsule) strain (right) suffered by BWFS in March 2000 (the rotator cuff injury).
·Chronic pain syndrome said to have been suffered by BWFS as a sequela of (or secondary to) the rotator cuff injury (the CPS condition).
·An adjustment reaction with depressive reaction said to have been suffered by BWFS as a sequela of (or secondary to) the CPS injury (the psychiatric condition).[5]
[4] Exhibit A3.
[5] Characterised, when liability was initially accepted, as an “adjustment disorder with depressed mood”: see determination of 14 February 2014, T86.
BWFS claims to be entitled to permanent impairment and non-economic loss compensation[6] with respect to the psychiatric condition (the permanent impairment claim). The Respondent denies that claim.
[6] Compensation of a type payable under ss 24 and 27 of the Act.
The Respondent also denies that BWFS has a present entitlement to medical treatment cost and incapacity for work compensation[7] with respect to certain of his other “injuries” (the liability denial claim). The scope of that denial is in issue. On its face, it would appear to apply only to compensation with respect to the CPS condition and the psychiatric condition.
[7] Compensation of a type payable under ss 16 and 19 of the Act.
While I will go into this in more detail later in these reasons, the Tribunal’s jurisdiction in relation to these matters[8] involves its review of decisions characterised in the Act as reviewable decisions.[9]
[8] Act, s 64.
[9] Act, s 60.
In relation to the permanent impairment claim, that jurisdiction was enlivened by an application made by BWFS on 5 May 2016 (matter number 2016/2491) (Application 1). In that application he sought review of a decision of 17 March 2016[10] to affirm an initial determination of 29 January 2016[11] in which his claim was rejected.
[10] T144, 432. References to “T” are references to documents provided under s 37 of the AAT Act.
[11] T132, 401.
In relation to the liability denial claim, that jurisdiction was enlivened by an application made by BWFS on 7 July 2016 (matter number 2016/3547) (Application 2). In that application he sought review of a decision of 21 June 2016[12] to affirm an initial determination of 16 March 2016[13] to the effect that, on 23 February 2016, the Respondent had no liability to pay, and BWFS had no entitlement to, the relevant compensation.
[12] ST8, 571. References to “ST” are references to supplementary documents provided under either s 37 or s 38AA of the AAT Act.
[13] ST3, 558.
The decisions the subject of Applications 1 and 2 were not, however, the only ones in respect of which BWFS had sought Tribunal review.
In particular, on 5 May 2016 BWFS applied to the Tribunal for review of a decision of 17 March 2016[14] to affirm an initial determination of 29 January 2016[15] to deny liability to pay permanent impairment and non-economic loss compensation with respect to the rotator cuff injury and the CPS condition (matter number 2016/2346). On the first day of the hearing, however, BWFS withdrew that application pursuant to s 42A(1A) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act). Consequently, pursuant to s 42A(1B) of the AAT Act, the Tribunal is deemed to have dismissed that application.
[14] T144, 432.
[15] T131, 398.
The apparent result of this withdrawal was that the Tribunal was left with two decisions for review, being the decision:
·Addressed by Application 1 concerning BWFS permanent impairment claim with respect to the psychiatric condition.
·Addressed by Application 2 concerning the Respondent’s liability denial claim with respect to the CPS condition and psychiatric condition.
Neither party was, however, content with this characterisation of the decision the subject of Application 2. At the hearing they both submitted that the relevant decision extended to a denial of a present liability to pay compensation of the relevant type with respect to BWFS’ rotator cuff injury.[16] Indeed, BWFS went somewhat further. The submission made on his behalf was to the effect that the denial encompassed all his injuries, including the 1998 injury.
[16] I note that, prior to the hearing, the Respondent’s characterisation of the decision to which Application 2 relates had it being limited to the CPS condition and psychiatric condition: see the Respondent’s statement of facts issues and contentions of 30 May 2019 (R’s SFIC) at [4]. Indeed, in that statement it was not suggested that the question of whether BWFS continued to suffer from his rotator cuff injury was in issue: see, for example, [5] of that statement. See also the Applicant’s statement of facts issues and contentions of 9 November 2018 (A’s SFIC) at [68]. Compare, however, Applicant’s submissions of 24 December 2019 (a 50-page submission lodged with the Tribunal after the hearing) (Applicant’s submissions), [11(b)].
Presumably because I expressed some doubt about the validity of these submissions, on day six of the hearing BWFS applied to have the Tribunal review a further decision of the Respondent (matter number 2019/7865) (Application 3). I will, however, address that later.
I propose first to deal with Applications 1 and 2, as I have characterised them. I will then address the parties’ submissions concerning the scope of Application 2 and the decision purportedly made the subject of review by way of Application 3.
Before doing so, however, I should briefly describe the material that I had before me in undertaking my review of the decisions the subject of Applications 1 and 2 and then outline some aspects of the factual context which I gleaned from that material.
MATERIAL BEFORE THE TRIBUNAL
Apart from the parties’ various submissions, in terms of documentary material, I had before me:
·Documents lodged under s 37 or s 38AA of the Tribunal’s constituent legislation, in four parts, two parts in relation to documents initially so lodged (the T documents) and two parts in relation to supplementary documents (the ST documents) (together Exhibit R1)
·Reports of Professor Youssef, rheumatologist, dated 9 September 2016; 13 March 2019, and 31 May 2019, and letters of instruction of 23 and 27 May 2019 (together Exhibit R2)
·Report of Mr George Haralambous, clinical psychologist, dated 15 September 2016 and letter of instruction purportedly dated 16 September 2016 (together Exhibit R3)
·Report of Dr Phillips, psychologist and occupational therapist, dated 17 October 2017 and letter of instruction of 25 August 2017 (together Exhibit R4)
·Bundle of material provided under summons (Exhibit R5)
·Undated, six-page, statement of BWFS (Exhibit A1)
·Comcare claim form dated 29 July 1998 with respect to supraspinatus (muscle)(tendon) strain (right) and thoracic sprain (Exhibit A2)
·Respondent letter of 17 June 1999 determining to accept the claim (Exhibit A3)
·Report of Dr Astley of 13 May 2019 (Exhibit A4)
·Report of Dr Stockman, rheumatologist, dated 4 November 2019 and letter of instruction of 23 October 2019 (together Exhibit A5)
·Bundle of correspondence relating to the termination of BWFS employment with effect from 18 October 2017 (Exhibit A6)
·Report of Ms Perversi, clinical psychologist, dated 9 April 2019 (Exhibit A7)
·Report of Dr Hayman, psychiatrist, dated 15 March 2018 (Exhibit A8)
·Reports of Dr Kaplan, psychiatrist, dated 19 October 2018 and 29 October 2019, and letter of instruction (together Exhibit A9)
·Report of Dr Blombery, physician, dated 10 December 2018 (Exhibit A10)
·Letter of 3 January 2018 from Dr Rahimikia, psychiatrist, and letter of instruction (together Exhibit A11)
·Report of Mr Kossmann, orthopaedic surgeon, dated 4 October 2018, and letter of instruction, dated 20 September 2018 (together Exhibit A12)
In addition to this documentary material, I had the benefit of hearing from BWFS, Dr Ooi (a physician, several of whose letters and reports are contained in the T documents)[17] and Dr Reiter (a rheumatologist, two of whose reports are also contained in the T documents),[18] as well as from all those who had provided reports the subject of particular exhibits.
[17] See T79 (6/12/13); T91 (30/5/14); T116 (29/5/15); T134 (5/2/16).
[18] See T127 (25/11/15); T142 (10/3/16).
FACTUAL CONTEXT
BWFS is 53 years old. In or around 1989 he joined the Australian Customs Service, now known as Australian Customs and Border Protection Service. At all relevant times he was engaged as a level 1 customs officer. He moved to his employer’s marine unit in 1992 where his shifts, as from 1995, involved 23 days on duty, with 19 days off duty.
On or about 15 June 1998, in practising an arm bar take down while participating in a defensive training course, BWFS injured his right shoulder and back. The Respondent determined to accept liability to pay compensation with respect to that injury (being the 1998 injury).[19] As a result, medical treatment cost compensation was paid with respect to, amongst other things, massage and physiotherapy sessions. No incapacity for work compensation was sought and BWFS continued to work in his employer’s marine unit. He also continued to undertake most of his pre-injury activities,[20] but to a lesser degree (albeit that he apparently ceased one of those activities altogether, swimming).[21]
[19] Exhibit A3.
[20] Tr99. (Use of Tr designates a reference to the transcript of the proceeding).
[21] Tr98.
On 8 March 2000, while participating in another training course arranged by his employer, BWFS suffered the rotator cuff injury.[22] The course included scenario-based training in which participants took on various roles. In the context of a particular edged weapon defensive tactic exercise, BWFS took on a role which had him seeking to take a knife from a “perpetrator”. The exercise miscarried and the heavy “perpetrator” landed awkwardly on BWFS’ right shoulder, the result being the rotator cuff injury.
[22] T4, 6.
BWFS evidence is that, since suffering that injury, he has endured fluctuating pain and cramps in his shoulder and neck, with pain radiating down his spine and off centre down his right side, into his right leg, calf and foot.[23] As a result, he has been unable to return to his pre-injury level of sporting activities[24] and has not had a full night’s sleep since March 2000.[25]
[23] Tr66.
[24] Tr64: see compensation claim form of 21/10/03 at T29, where it is said activities no longer engaged in include weight training, boxing bag, cycling, running and Army reserve.
[25] Tr65.
On 30 March 2000 the Respondent accepted liability to pay compensation with respect to the rotator cuff injury.[26]
[26] T5, 13.
Because of persistent shoulder pain,[27] on 13 December 2000, an orthopaedic surgeon, Mr Morris, performed a bursectomy and subacromial decompression on BWFS.[28] The diagnosis then given by Mr Morris was subacromial bursitis.
[27] Tr106.
[28] T6, operation report.
In January 2001, Mr Morris opined that BWFS was capable of returning to work but suggested that he engage in light duties only.[29] At the time, Mr Morris thought BWFS prognosis was “quite good” (albeit that he did re-inject the subacromial space with cortisone in March 2001 in an endeavour to deal with ongoing symptoms).
[29] T7, letter of 4/6/01 from Mr Morris to Respondent.
In January 2001, BWFS did return to work. He re-joined his vessel in Wellington, New Zealand but promptly reinjured his shoulder when throwing a heaving line. Since then he has not returned to sea duties, apparently because of an inability to undertake use of force training.[30]
[30] Tr111; see also the functional assessment report at T10, 21.
In March 2001, BWFS commenced a six-month stint working in the Canberra office of his employer.
On 21 June 2001, Ms Keith, an orthopaedic surgeon, reported no evidence of significant shoulder wasting or of upper limb neurology but opined that BWFS problem “is extremely difficult”, one she would like time to evaluate.[31]
[31] T8.
An arthrogram with respect to BWFS’ right shoulder was conducted on 16 August 2001. It did not identify evidence of any rotator cuff tear but there was said to be increased fluid in the subacromial/subdeltoid bursa which may have been due to impingement.[32]
[32] T9.
In or around September 2001, BWFS commenced leave of around three months.
On 11 September 2001, a functional assessment was carried out by a physiotherapist. It was concluded that BWFS had a functional work-day capacity of eight hours only but was not fit for sea duty.[33]
[33] T10 and T11.
In January 2002, BWFS returned to work, this time in Melbourne, acting essentially as an intelligence analyst on a standard roster. He continued in that role until around 2008.
On 11 March 2002, pursuant to a referral by his general practitioner Dr Rose, a director of the Melbourne Pain Management Clinic,[34] commenced treating BWFS for chronic right shoulder pain.[35]
[34] T21.
[35] T18.
Dr Rose diagnosed BWFS as suffering from “chronic myofascial pain disorder affecting mainly the rotator cuff of the right shoulder joint but also affecting the greater shoulder girdle and the paravertebral muscles of the dorsal and lumbar spines”.[36]
[36] T21, 43.
After trialling several treatments with respect to BWFS, in June 2002 Dr Rose appeared to settle on medication involving a “potent opiate analgesic”[37] (endone) and Avanza. The latter medication was said to be one “aimed at modifying and reducing …[BWFS] pain experience and controlling reactive depression and stress associated with his physical disability…[being] an anti-depressant medication which has been used extensively in the treatment of depression associated with chronic pain”.[38] BWFS’ evidence was that he has been on medication for pain and depression ever since.[39]
[37] T21,46.
[38] T18, Letter of 6/2/03 to the Respondent.
[39] Tr73.
Dr Rose referred BWFS to Dr Rawicki, an associate professor of medicine at Monash University. On 4 April 2003, Dr Rawicki injected 200 units of botulinum toxin into spasming muscle[40] after having opined that BWFS “certainly has restriction of movement of his right shoulder.”[41]
[40] T20.
[41] T14.
In a report to the Respondent in June 2003, Dr Rose concluded by stating that BWFS “appears to be suffering from significant soft tissue related pain in the neck and shoulder girdle areas…[which] appears to be related to an incident…at work on 8/3/2000”.[42] While there was said to be no serious radiological evidence for BWFS’ pain, Dr Rose’s opinion was that it was most likely related to changes in the nervous system associated with increased sensitivity of the NMDA receptors. NMDA receptor activity was said, by Dr Rose, to be associated with hyper-sensitisation of the nervous system as well as a “widespread wide nature of spreading of the pain…”.[43] In this regard, BWFS was then said to be complaining of persistent bilateral lower back pain radiating down into his right leg.
[42] T21, 46.
[43] Ibid.
On 4 July 2003, Dr Rawicki forecast the possible need to implant subcutaneous electrodes in order to address BWFS’ pain issues.[44]
[44] T22.
In a functional capacity evaluation report of 11 August 2003, it was said that BWFS’ injured area had not returned to normal or near normal function and that he remained limited to an eight-hour workday “in a light work capacity.” It was concluded that not only were his pre-injury work demands beyond his safe work capacity but so too were certain of his then-current work demands.[45] A recommended reduction in BWFS’ work hours was adopted in October 2003 [46] (involving five days of work with four days off). This restriction on hours of work was considered likely to apply for the long term.[47]
[45] T23, 50.
[46] T26, closure report of 3/10/03.
[47] T27, 81.
On 5 November 2003, Dr Rose assessed BWFS’ level of psychiatric permanent impairment resulting from his work-related injury at 15-20%.[48]
[48] T30.
On 23 December 2003, Dr Lim reported on an assessment of BWFS which he had conducted at the request of a pain medicine specialist at the Barabara Walker Centre for Pain Management at St Vincent’s Hospital in Melbourne. Dr Lim opined that there were several causes of BWFS’ pain, but that a large amount of it[49] was attributable to myofascial pain syndrome, described as a muscular hyperirritability pain condition for which there is no cure. Some, however, was said to be also the result of emotional embellishment due to increasing frustration and demoralisation at the persistence of pain.[50]
[49] T33.
[50] T32.
In a report of 29 January 2004, Mr Mander, an orthopaedic surgeon, diagnosed BWFS as having right shoulder bursitis and muscle strain. He recommended that BWFS’ duties continue to be restricted. He considered the long-term prognosis to be one of full resolution albeit that shoulders were said to be “renowned for being slow to recover from soft tissue injuries, taking frequently anything up to three to four years for full resolution.”[51]
[51] T34.
In around April 2004, BWFS attended a three-week chronic pain rehabilitation program based at Olympia Private Rehabilitation Hospital.[52]
[52] T32 and T36, 107.
In a report of 1 March 2005, Mr Mander again diagnosed BWFS, this time as having chronic right shoulder capsulitis. As for BWFS’ prognosis, Mr Mander did not consider that it was likely that there would be any change in BWFS’ situation and that he ought be restricted permanently to sedentary work only, with no work above waist level and no lifting of weight above five kilograms. Mr Mander also opined that BWFS’ condition arose solely from work-related factors. [53]
[53] T39.
On 6 April 2005, the Respondent determined that BWFS was entitled to permanent impairment compensation as a result of his compensable conditions (which at that stage only entailed the 1998 injury and rotator cuff injury).[54]
[54] T40.
In March 2008, BWFS’ general practitioner referred him to a psychiatrist for treatment.[55]
[55] T44, 140.
In 2008, as recommended in a workplace assessment report of 11 June 2008[56], BWFS’ hours of work were reduced so that he ultimately came to work four days per week, on a two days on, one day off and two days on roster. The reduction in hours was said to be appropriate “given the amount of medication and symptoms continuing to occur.” The report would appear to have been prepared as a result of a change in position, with BWFS moving from maritime intelligence to strategic intelligence.
[56] T44.
On 23 June 2009, Dr Rawicki reported that BWFS had a “full range of shoulder, cervical and back movements and there are no organic signs.” He went on, however, to note that management of soft tissue pain including fibromyalgia is very difficult and suggested treatment by way of further botulinum injections[57] (treatment that was ultimately adopted,[58] involving two courses of injections[59]).
[57] T47.
[58] T49.
[59] T51.
On 13 August 2009, in a report to the Respondent, BWFS’ general practitioner, Dr Astley, opined that BWFS suffered from chronic myofascial pain syndrome consequent upon his rotator cuff injury and that he suffered from depression as a result of his chronic pain.[60]
[60] T48.
On 5 May 2011, in another report to the Respondent, Dr Astley repeated these opinions and, in addition, opined that:
·Depression is a common consequence of a chronic pain condition.
·Ongoing therapy was required as his pain syndrome “may well be permanent.”[61]
[61] T55.
In a report to the Respondent of 17 May 2012, Mr Iain Kelman, orthopaedic surgeon, opined that BWFS was suffering from chronic pain syndrome with central neural sensitisation and right shoulder impingement syndrome. As for the former condition, central neural sensitisation was said to be indicated by the widespread nature of the pain. As for the latter condition, on examination, there was found to be restriction of movement in BWFS’ right shoulder.[62]
[62] T60.
In a report to the Respondent of 21 September 2012, Dr Farnbach, psychiatrist, opined that BWFS “presents with a very straightforward problem of depressive symptomatology secondary to chronic pain” and suffers from “an adjustment disorder with depressed mood.” As for whether his condition related to his employment Dr Farnbach opined that “BWFS psychiatric condition is secondary to his chronic pain. Assuming his pain remains related to the employment incident then his mood disorder is, likewise, related to the employment incident.”[63]
[63] T63.
In a report of 24 September 2012, Dr Hwang, an occupational physician, opined that there was a small amount of ongoing impingement with respect to BWFS’ right shoulder and, assuming that treating specialists have excluded cervicogenic radicular pain, he accepted that BWFS suffered from chronic pain syndrome, which he said was also described as central sensitisation or myofascial pain. Dr Hwang’s opinion was that the rotator cuff injury would appear to have precipitated an amplified pain response leading to chronic pain, albeit that other psychosocial factors would have contributed (noting his opinion that chronic pain was multifactorial).[64]
[64] T64.
In a letter to the Respondent of 28 May 2013, Dr Astley opined that BWFS’ depression was a direct result of his chronic pain syndrome and noted her referral of BWFS to a psychologist.[65]
[65] T71.
According to BWFS, in or around the middle of 2013 he had a breakdown. He was weeping and remaining in bed during the day. He reported to Dr Astley that he felt his work was making him sick. He had separated from his wife who had informed him of her intention to obtain a divorce.[66] (I note that BWFS and his wife subsequently reconciled.)
[66] Tr130.
In a report of 27 November 2013, the psychologist to whom Dr Astley had referred BWFS opined that BWFS suffered from “major and pervasive depression,” including significantly low mood and suicidal ideation, with pain from his injuries appearing to have led to his depression. It was said that his condition “appears to be directly related to his injury and subsequent pain levels,” noting that there would “not appear to be any other contributing factors to…[his] psychological condition.”
As part of an endeavour to address his pain condition, on 28 November 2013 Dr Ooi, a rehabilitation physician, inserted a trial neurostimulation system into BWFS, involving one lumbar epidural lead and two subcutaneous neurostimulation leads.[67] They remained in situ until removed on 6 December 2013.[68] A trial cervical neurostimulation system was inserted on 30 January 2014, again for a period of only one week.[69] Insertion of these leads required in-patient hospital admissions. The results of insertion of these trial systems were such as to suggest that the systems potentially afforded good pain relief.[70] Hence, BWFS underwent procedures involving the insertion of a permanent neurostimulation system in the cervical region (with two leads being inserted and an implant generator being inserted in the right buttock) in May 2014[71] and a permanent neurostimulation system in the lumbar region (with three leads being inserted and an implant generator being inserted in the left buttock) in late October 2014.[72]
[67] T74, T77, T78.
[68] T79.
[69] T83.
[70] T85.
[71] T89, T90.
[72] T101, T102.
In November 2014, BWFS’ surgical sites became infected leading to much of the recently inserted neurostimulation systems being removed.[73] After his infection had resolved, the permanent systems were reinserted in April 2015.[74] Shortly thereafter it was discovered that several of the reinserted leads had migrated so that they no longer afforded effective pain relief.[75] This resulted in a need for further surgical intervention in July 2015 to reposition two of the subcutaneous leads.[76] According to BWFS, the reinserted systems were not as effective as the systems initially inserted in mitigating pain. Currently, the leads remain in situ but neither system is working.[77]
[73] T104, T105, T107, T108.
[74] T111, T112, T113.
[75] T116.
[76] T118.
[77] Tr131; Exhibit A1, undated statement of BWFS.
In the midst of the saga concerning the neurostimulation systems, the Respondent determined on 14 February 2014 that it was liable to pay compensation under the Act with respect to what it characterised as BWFS’ secondary conditions; chronic pain syndrome and adjustment disorder with depressed mood.[78] In concluding that BWFS suffered from both “injuries” and that there was the requisite employment contribution to both of them, the Respondent relied on the 2012 reports of Doctors Hwang and Farnbach to which I referred earlier.
[78] T86.
In a report of 24 November 2015, Dr Spence, psychiatrist, opined that BWFS was suffering from an adjustment disorder with depressed mood and that his prognosis was for no further improvement. Dr Spence noted that BWFS had a long-term diagnosis of somatic symptom disorder with predominant pain, he had received long term opiate-based analgesia and had undergone a series of quite invasive procedures. No aspects of his clinical examination tended to suggest that BWFS was exaggerating his symptoms. According to Dr Spence, BWFS qualified for a 10% level of impairment. In terms of causation, Dr Spence opined that BWFS’ condition was related to his work and a number of other factors unrelated to work.[79] Nevertheless, Dr Spence considered it “most correct to state that his adjustment disorder with depressed mood was secondary to the myofascial regional pain syndrome.”[80]
[79] T126.
[80] T129.
Accordingly, up until November 2015, that is, for around 15 years since his rotator cuff injury, BWFS had been treated by and reported on by a range of health professionals; general practitioners, several orthopaedic surgeons, pain specialists, physicians, psychologists and psychiatrists. In November 2015, however, the Respondent sought and obtained a report from a rheumatologist, Dr Reiter.[81]
[81] T127.
In her report, Dr Reiter opined that BWFS suffered from a regional myofascial pain syndrome affecting the whole of his right body. It was a regional syndrome given the diffuse nature of the pain and there being tender trigger points in muscles of the right upper and lower limbs. It was myofascial pain syndrome rather than fibromyalgia because BWFS’ tender trigger points did not involve the whole of his body.
Dr Reiter’s opinion was that BWFS’ prognosis was poor, that he is suffering chronic pain and that he was not exaggerating his symptoms. So far so good from BWFS’ perspective (at least in terms of this proceeding). Where it went off the rails, however, was in relation to causation. Dr Reiter’s opinion was that BWFS’ myofascial pain syndrome was “not due to his right shoulder injury.”
It was Dr Reiter’s opinion in this regard which underlay the Respondent’s determinations in January and March 2016 which were affirmed by the decisions the subject of review in Applications 1 and 2.
Despite the Respondent’s determinations in early 2016, BWFS was, apparently, then under the impression that he remained entitled to receive the incapacity for work compensation that he had been receiving in respect of his rotator cuff injury[82] (an impression which, as will be seen later, I consider he was right to have). Indeed, payments continued to be made of that compensation until August 2016 when they ceased and BWFS was required to repay what I infer he was then told had been payments made in mistake.[83] He sought to clarify this with the Respondent but was told that his case file had been closed and that he no longer had a case manager.
[82] Exhibit A1, undated statement of BWFS.
[83] See Exhibit A6, BWFS termination of employment documents and the reference to a “retrospective cessation of compensation payments” for the period 16/3/16 to 10/8/16 amounting to $19,081.96.
This all appears to have precipitated a deterioration in BWFS’ mental health. BWFS’ evidence was that he then attempted suicide.[84] Contemporary documentation suggests, however, that there had been no such attempt. Whatever the case, it seems clear that BWFS was then experiencing suicidal ideation.[85] As a result, he was treated at Northpark private hospital as an in-patient in the period 7 September 2016 to 5 October 2016. His treatment included a number of courses of electro-convulsive therapy (ECT); six courses in aggregate, according to BWFS.
[84] Tr120.
[85] Exhibit R5, tender bundle of summons documents, Northpark private hospital mental health pre-admission form of 7/9/16.
On discharge, his primary diagnosis was said to be major depressive disorder with melancholic features. Unfortunately, in March 2017 BWFS was re-admitted to Northpark private hospital, again as an in-patient for several weeks where again his treatment involved several courses of ECT.
BWFS ceased working in around September 2016. On 11 October 2017, his employment was formally terminated; he was considered to be unable to perform duties because he was “permanently incapacitated for employment”.[86] The view that BWFS was then permanently incapacitated was based on, amongst other things, a report of a psychiatrist, Dr Cohen, who on 30 June 2017 opined that BWFS:
·suffered from “a major depressive disorder, severe and treatment resistant”, a condition which was permanent; and
·was totally and permanently incapacitated for work.[87]
[86] Exhibit A6, BWFS termination of employment documents.
[87] Ibid.
APPLICATIONS 1 AND 2
I turn now to address Applications 1 and 2.
Of what must I be satisfied in relation to the Applications?
BWFS, as an employee, is entitled to compensation payable in accordance with the Act, and the Respondent is liable to pay such compensation, in respect of “injuries”.
Under the Act, a condition might be an injury if it is either:
·a “disease” suffered by an employee, that is, an ailment (or an aggravation of an ailment) contributed to, to a degree substantially more than material, by the relevant person’s employment;[88] or
·an injury which is not a disease (or an aggravation of such an injury) suffered by an employee arising out of or in the course of employment.[89]
[88] Act, s 5B.
[89] Act, s 5A. I note that for injuries sustained prior to 12 April 2007 the definition of the term “injury” that applied was one found in s 4 of the Act. Neither party has contended that the amendments that came into effect on that date are of any particular relevance in this proceeding.
The accepted position in relation to both the CPS condition and the psychiatric condition had been that they are both “injuries” and, without limitation, that they both bear the requisite connection to BWFS’ employment. This is reflected in the Respondent’s acceptance on 14 February 2014 of liability to pay compensation in accordance with the Act,[90] and in its acceptance of a specific liability to pay medical treatment cost and incapacity for work compensation,[91] with respect to those conditions.
[90] T86, 249. As an aside I note that the CPS condition was determined to be an injury in its own right. A similar determination was made in relation to an employee’s chronic pain syndrome considered in Howard v Comcare [2019] FCA 1031. It is, however, unlike the treatment afforded to an employee’s chronic pain syndrome (or complex regional pain syndrome) considered in Singleton v Comcare [2019] FCA 2104 or in Ivill and Comcare [2020] AATA 36. In the latter two decisions, the relevant syndrome was treated as simply part of the effects of another injury, rather than a discrete injury.
[91] See, for example, T100; T149 at pp 527,530, 533.
Identification of the accepted position in relation to both the CPS condition and the psychiatric condition assists in identifying those things of which I must be satisfied in relation to both Applications 1 and 2.
Neither party bears an onus of proof in the context of this proceeding.[92] Indeed, in Tribunal proceedings, any suggestion that a party bears such an onus, whether legal or evidential, is apt to mislead.[93] Nevertheless, insofar as a party seeks to prosecute a case that reflects a departure from the accepted position, the party will only succeed if I can be satisfied that the departure is appropriate.[94] In that sense, the party bears a burden of persuasion.[95] That burden will not be satisfied by mere suspicion as to the appropriateness of a departure from an accepted position.[96]
[92] BOY19 v Minister for Immigration and Border Protection [2019] FCA 574 at [54] where it was stated that “…the decision is an administrative decision to which the rules of evidence are inapplicable and the evidentiary burden of proof inapposite….”.
[93] Comcare v Power [2015] FCA 1502 at [57]; McDonald v Director-General of Social Security (1984) 1 FCR 354 at 358.
[94] Toomey and Secretary, Department of Education, Employment and Workplace Relations [2009] AATA 468 at [58-59].
[95] Millar and Comcare (Compensation) [2019] AATA 4973 at [152].
[96] Re Lorraine Joy Shearing and Director-General of Social Security [1983] AATA 116 at [30].
As a result, in reviewing the decisions the subject of Applications 1 and 2, I will, for example, accept that the CPS condition and the psychiatric condition are “injuries” and, hence, that they each have the requisite connection to BWFS’ employment unless, on the material before me, I am satisfied that this is not the case.
Moreover, in the context of Application 2, given the acceptance of a liability to pay medical treatment cost and incapacity for work compensation with respect to the CPS condition and the psychiatric condition, I need to be satisfied that a circumstance entitling BWFS to that compensation with respect to those conditions no longer exists.[97] Unless I am satisfied of that, the case for the Respondent with respect to Application 2 will fail; I will be unable to affirm the decision to affirm its determination that BWFS has no present entitlement to such compensation with respect to those conditions. At a practical level, this means that it is the Respondent who bears a burden of persuasion in the context of Application 2.
[97] Commonwealth v Borg [1991] FCA 710; Comcare v Nichols [1999] FCA 209 at [22]. See also the cases referred to in Applicant’s submissions FNs 5 and 6.
The Respondent does not accept this.[98] It contends that, as an entitlement to incapacity for work compensation is assessed on a week-to-week basis, it is up to compensation applicants to ensure that material before the Tribunal is such as to justify a conclusion that the prerequisites to such an entitlement are satisfied. I reject that contention.
[98] Respondent’s submissions [10.5-10.6].
Here, as in Comcare v Power,[99] it “…is reasonable to say, as a practical matter, that Comcare would have to persuade the Tribunal of the circumstances which justify a finding that compensation payments should no longer be made.” Hence, it is the Respondent who “…bears the burden of establishing that… [BWFS] is no longer entitled to compensation to which… [he] has previously been entitled.”[100]
[99] Comcare v Power [2015] FCA 1502 at [70]. See also Telstra Corporation Ltd v Arden [1994] FCA 524 and Commonwealth v Borg [1991] FCA 710.
[100] Millar and Comcare (Compensation) [2019] AATA 4973 at [115] .
As will be soon seen, the findings of fact which the Respondent urges that I make in the context of Application 2 run counter to those underlying the entitlement which BWFS has by reason of the determination made in his favour under s14 of the Act. That determination gave rise to an entitlement to compensation payable in accordance with the Act (albeit not a present entitlement to any particular form of compensation payable under the Act).[101] That is not a week-to-week entitlement. It subsists until “…it is discharged in accordance with the Act.”[102]
[101] Lees v Comcare [1999] FCA 753 at [34].
[102]Australian Postal Corporation v Oudyn (2003) 73 ALD 659 at [31].
Lastly, as a practical matter, a determination under s 14 of the Act that an employee has suffered an injury entitling him or her to compensation payable in accordance with the Act would lose much of its significance were I to accept the Respondent’s contention concerning the burden of persuasion. A need to re-establish that an employee had suffered an injury would accompany any compensation claim made subsequent to a s 14 determination. In fact, once such a determination has been made, there is no such need.[103]
[103] Ramirez-Gamonal and Comcare (Compensation) [2019] AATA 332 at [124].
The foregoing addresses matters of which I must be satisfied, largely in the context of Application 2. In the context of Application 1, however, dealing with BWFS’ claim for permanent impairment compensation with respect to his psychiatric condition, no liability to pay such compensation arises unless the relevant decision-maker can be satisfied that the prerequisites to an entitlement to permanent impairment and
non-economic loss compensation under sections 24 and 27 of the Act are met.[104]
[104] Beezley v Repatriation Commission [2015] FCAFC 165 at [68].
Hence, a burden of persuasion in relation to those prerequisites is borne by BWFS. That burden does not, however, extend to matters previously accepted in relation to the psychiatric condition, being that the condition is an “injury” and, hence, was contributed to, to a significant degree, by BWFS’ employment.
I turn now to the specifics of Applications 1 and 2. I will address them in reverse order.
APPLICATION 2
Circumstances of entitlement to compensation
As I mentioned earlier, Application 2 concerns the Respondent’s liability denial claim with respect to the CPS condition and psychiatric condition.
As I have said, in order to do that which the Respondent asks that I do and affirm the decision the subject of review in the context of Application 2, I need to be satisfied that a circumstance entitling BWFS to the relevant compensation with respect to the CPS condition and psychiatric condition did not exist as at 23 February 2016 and does not now exist.
The compensation entitling circumstance which the Respondent contends does not exist concerns the status of the CPS condition and psychiatric condition. The Respondent now denies that they are injuries.
In addressing that denial, I will first ask whether I can be satisfied that each of the CPS condition and psychiatric condition is not a “disease.”[105]
[105] See also Prowse and Comcare (Compensation) [2019] AATA 411 at [67-68], noting that the concepts of “injury” and “disease” are not mutually exclusive: Prain v Comcare [2017] FCAFC 143 at [72].
Approaching the issue in this manner is consistent with:
·The approach outlined (albeit not mandated)[106] by the High Court in May.[107]
·The nature and incidents engendered (or at least claimed to be engendered) by both the CPS condition[108] and psychiatric condition,[109] noting that it is the “…nature and incidents of the physiological change” engendered by a condition that determines its characterisation as either a disease or an injury (other than a disease). [110]
·An injury (other than a disease) being generally applicable only to “a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state”[111] or “…some definite or distinct ‘physiological change’ or ‘physiological disturbance’ for the worse which, if not sudden, is at least ‘identifiable.”[112]
[106] Harding and Comcare (Compensation) [2019] AATA 4391 at [161].
[107] Military Rehabilitation and Compensation Commission v May [2016] HCA 19 per plurality (French CJ, Kiefel, Nettle and Gordon JJ) at [44].
[108] See Millar and Comcare [2019] AATA 4973 at [110] where it is said that a chronic pain condition clearly falls under s 5B of the Act.
[109] See Prain v Comcare [2017] FCAFC 143 at [74] where the Tribunal was not found to be in error in noting a tendency to treat mental illness as a disease. See also Prowse and Comcare [2019] AATA411 at [68] where it is said that most psychiatric conditions are characterised as ailments.
[110] Ibid.
[111] Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 200 CLR 286 at 300.
[112] Military Rehabilitation and Compensation Commission v May [2016] HCA 19 at [75].
As for the CPS condition, the Respondent submits that it is not a disease as it is not an ailment from which BWFS suffers[113] and that, even if he does suffer from it, the condition is not contributed to, to a degree substantially more than material, by his employment.[114]
[113] Respondent’s submissions [2.4-2.7].
[114] Respondent’s submission [5.2-5.3; 11.6]; R’s SFIC at [53].
As for the psychiatric condition, the Respondent submits that it is not a disease as it is not a condition contributed to, to a degree substantially more than material, by BWFS’ employment.[115] While evidence adduced by the Respondent from two witnesses appeared to be directed to establishing that BWFS was exaggerating the symptoms of his psychiatric condition (or that he was, or may have been, malingering),[116] overall, the Respondent did not appear to be denying that BWFS suffers from the psychiatric condition.[117] Indeed, the Respondent did not appear to be denying that the effects of the psychiatric condition are such as to result in BWFS requiring medical treatment and being incapacitated for work (albeit that the Respondent does take issue with the extent of the incapacity said to be resultant from the psychiatric condition as opposed to what the Respondent characterises as a non-employment related aggravation of that condition) .
[115] Respondent’s submission [5.2-5.3].
[116] See the reports previously mentioned of Messrs Phillips and Haralambous. I will discuss their evidence in more detail later.
[117] Respondent’s submissions, 2.8.
While the Respondent’s determination in 2014 to accept liability to pay compensation with respect to each of the CPS condition and psychiatric condition as injuries does not preclude it from now denying that they are injuries[118] (and saying that it ought not to have accepted that liability),[119] in considering that denial the Tribunal is not (contrary to a contention of the Respondent)[120] reviewing the determination of 2014. As no reviewable decision has been made as to that determination I do not have jurisdiction to review it;[121] “[t]he liability under s 14 of the Act to pay compensation stands until it is discharged in accordance with the Act.”[122] Instead, what is being asked of the Tribunal in considering that denial is to make findings of fact that undercut those made in the context of the 2014 determination while nevertheless leaving that determination in place.[123]
[118] Hooley and Comcare [2019] AATA 5176 at [27-28].
[119] Respondent’s submissions [5.2].
[120] Respondent’s submissions [5.5].
[121] Liu and Comcare [2004] AATA 617 at [3].
[122] Australian Postal Corporation v Oudyn (2003) 73 ALD 659 at [31].
[123] Telstra v Hannaford [2006] 151 FCR 253 at [59].
The Respondent is adopting an approach the availability of which was recently endorsed in Hooley.[124] In the context of a “ceased effects determination” (a concept I discuss later but which encompasses a decision such as that the subject of review in relation to Application 2), it was noted there that the circumstances which are alleged to no longer exist can be expressed in terms of the requirements found in those provisions of the Act dealing with the types of compensation in issue (in the case of Application 2, sections 16 and 19) or in terms of the requirements found in s 5B of the Act.
[124] Hooley and Comcare [2019] AATA 5176 at [27-29].
Here, in seeking to deny that the CPS condition and psychiatric condition are “injuries”, the Respondent’s position appears to be one reflective of the latter approach (i.e. one expressed in terms of s 5B of the Act rather than in terms of the relevant provisions dealing with the types of compensation in issue).[125] Indeed, subject to one qualification, the Respondent does not deny that the CPS condition (if it exists) and psychiatric condition may cause incapacity for work or a need for medical treatment.[126]
[125] For example, the Respondent does not appear to be contending that BWFS does not suffer some incapacity for work as a result of his CPS condition, in terms of s 19 of the Act: see Respondent’s submissions at [4.3] where it appears to be accepted that BWFS reduced working hours in 2008 may have been the result of the CPS condition or the psychiatric condition.
[126] Respondent’s submissions, 1.2.2; 5.11.
The qualification to this is one inherent in the Respondent’s contention that BWFS did not continue to suffer the effects of the CPS condition as at 23 February 2016[127] and does not presently suffer from those effects. The continued suffering of those effects at a particular time is a condition of BWFS’ entitlement to compensation at that time.[128]
[127] ST3, 558.
[128] Hurley and Australian Capital Territory [2019] AATA 2450 at [80] where it is said, in essence, that for there to be a continuing entitlement to compensation under the Act with respect to an injury, there must be continuing incapacity or impairment as a result of the injury. See also Neuendorf and Australian Postal Corporation (Compensation) [2019] AATA 2430 at [131].
I turn now to consider submissions made by the Respondent to the effect that neither the CPS condition nor the psychiatric condition is an injury and that, in any event, BWFS did not suffer the effects of the CPS condition on 23 February 2016 and does not currently suffer from such effects.
CPS condition an injury?
I am not satisfied that the CPS condition is not an injury. In particular, I am not satisfied that the CPS condition is not an ailment suffered by BWFS that was contributed to, to a degree substantially more than material, by his employment.
Is the CPS condition an ailment suffered by BWFS?
I am not satisfied that the CPS condition is not an ailment from which BWFS now suffers or one from which he suffered in February 2016.
The Respondent contends that the CPS condition is inconsistent with any “objective organic causes”[129] and addressed the Tribunal concerning what was said to be the usual expectation concerning recovery from soft tissue injuries.
[129] In the Respondent’s submissions, the CPS condition was said to be anatomically incompatible with shoulder injury; its effect was bilateral and felt at a distance from the shoulder [2.4].
Implicit in the Respondent’s submission concerning the need for an objective organic cause is a contention that BWFS’ CPS condition needs to be organically explicable by reference to his rotator cuff strain. This, however, is not the case. It reflects the error commented upon by Perry J in Howard[130] when Her Honour stated that:
…the Tribunal failed to appreciate that medical conditions like chronic pain syndrome, which evolve out of primary injuries, are just as much an injury for the purposes of the Act as the primary injury. This explains the Tribunal’s focus upon whether organic or psychological injuries directly arising out of the 2006 accident provided an explanation for the applicant’s chronic pain syndrome, which it accepted at [18] had been experienced by her ever since the 2006 accident at varying levels primarily in her upper neck and shoulder blades. However, the correct position under the Act is that it sufficed if the chronic pain syndrome was caused by the first injury, as the Tribunal accepted in a finding as a matter of fact that the chronic pain syndrome was secondary to the injuries suffered in the 2006 accident in line with Dr Paul’s evidence. This error is, with respect, analogous to that made by the Tribunal in Canute which treated the concept of ‘injury’ as co‐extensive with the workplace incident save that here the Tribunal appears to have treated the concept of ‘injury’ under the Act as co‐extensive with the primary injury.”
[130] Howard v Comcare [2019] FCA 1031 at [61].
The Respondent also contended that BWFS’ presentation was inconsistent with “a genuine chronic pain disorder.”[131]
[131] Respondent’s submission [2.4].
In support of this contention, the Respondent suggests that BWFS may be feigning his symptoms. Relying particularly on the evidence of Professor Youssef, the characteristics and distribution of symptoms complained of by BWFS were said not to be those that would be experienced were he to have been suffering from a genuine chronic pain disorder. Complaints of limitation were said to be inexplicable in terms of such a disorder. Such complaints were said not to be consistent even within the context of a single examination.[132]
[132] Respondent’s submission [2.4; 2.7]. At 2.6 it is suggested that markedly different results were achieved when the same capacity was assessed using different testing modalities. I note that Dr Ooi’s opinion, however, was that chronic pain symptoms are not consistently expressed and can vary day to day.
However, none of the expert evidence is to the effect that BWFS does not suffer from the CPS condition. Professor Youssef’s opinion that BWFS’ pain and functional impairment is out of proportion to his physical impairment[133] is not an opinion that he does not suffer from the condition. (I discuss further the issue of whether BWFS is feigning symptoms in relation his CPS condition when addressing the issue of whether he continues to suffer the effects of that condition.)
[133] An opinion echoed in Dr Hayman’s psychiatric report of 15 March 2018, in which he stated that “Pain is a major focus for him [BWFS] and is somewhat disproportionate to that expected from the nature of the injuries sustained.”
Not only does the material before me not support a finding that BWFS does not suffer from the CPS condition, the weight of it supports a finding to the contrary, i.e. that he does suffer from the CPS condition.
As is apparent from the outline earlier of the factual context:
·In addition to his general practitioner (Dr Astley), two pain management physicians (Drs Rose and Lim), an occupational physician (Dr Hwang)[134] and a rheumatologist (Dr Reiter) diagnosed BWFS as suffering from myofascial pain syndrome, while an orthopaedic surgeon (Mr Kelman) diagnosed BWFS as suffering from chronic pain syndrome with central neural sensitisation.[135]
·His treating physicians prescribed a potent opiate analgesic, endone, for use by BWFS.
·Dr Rawicki, an associate professor of medicine at Monash University, thought it appropriate to treat BWFS with at least two courses of botulinum injections.
·Dr Lim had BWFS attend, as an inpatient, a three-week program designed to treat chronic pain.
·A rehabilitation physician, Dr Ooi, thought it appropriate to treat BWFS’ pain by the insertion of neurostimulation systems, treatment that ultimately entailed six in-patient hospital stays over a period of around 18 months.
[134] Albeit that Dr Hwang conditioned this opinion on an assumption that treating specialists had excluded cervicogenic radicular pain.
[135] I note that chronic pain syndrome was said by Dr Hwang to be also described as central sensitisation or myofascial pain.
A finding that BWFS suffers from the CPS condition is also consistent with the opinion expressed by Dr Blomberry (physician). He opined that BWFS suffered from a diffuse pain syndrome accompanied by central sensitisation (which he characterised as being the same as myofascial pain syndrome, a localised form of fibromyalgia). The resultant chronic pain was, according to Dr Blomberry, reflective of an organic disorder involving increased activation of pain nerve pathways.[136] That an organic disorder was involved would also seem to be consistent with the fact that the neurostimulation systems inserted into BWFS were said, for a time, to have afforded him some pain relief.
[136] I note that the Respondent did not contend that BWFS’ CPS condition symptoms did not reflect a physiological diagnosis (cf Williamson and Comcare [2019] AATA 4774 at [45]) or that the CPS condition gave rise merely to “…subjectively experienced symptoms, without an accompanying physiological or psychiatric change” (Military Rehabilitation and Compensation Commission v May [2016] HCA 19 at [57]).
Professor Youssef, too, opined that the criteria for a diagnosis of fibromyalgia were satisfied in the case of BWFS.
Is the CPS condition contributed to, to a degree that is substantially more than material, by BWFS’ employment?
The issue of whether the CPS condition is “truly a causal consequence of” an injury[137] is said by the Respondent to be “central to these proceedings”.[138] Casting the issue in those terms, however, reflects a failure to acknowledge where the burden of persuasion lies in relation to the issue. Cast in light of that burden, the question in issue is whether I am satisfied that the CPS condition is not an ailment contributed to, to a degree that is substantially more than material, by BWFS’ employment.
[137] Respondent’s submissions FN 20; see also at 1.2.3; 5.2.
[138] Respondent’s submissions FN 20.
Here, the power to reconsider was purportedly exercised in relation to a determination providing for the cessation of compensation under the Act’s medical treatment costs and incapacity for work compensation provisions. The circumstances giving rise to an entitlement to payment under those provisions were said to no longer exist with respect to two of BWFS’ injuries. While not operating as a bar to future claims under those provisions with respect to those injuries, it did operate in respect of such claims then in existence.[282]
[282] Ibid at [33].
Given the nature of that determination, a reconsideration of it was limited to matters concerning the existence of circumstances giving rise to an entitlement to be paid compensation under the relevant provisions with respect to the two relevant injuries.
The purported reconsideration on the fifth day of the hearing did not do that. The Respondent did not reconsider any circumstance of relevance to compensation with respect to the two injuries addressed in the 16 March 2016 determination. What had already been determined was not reconsidered. Instead, the Respondent simply made another decision; “so as to also decide” something other than that which had already been determined. All it did was “to add a legal issue” to the determination.[283] Hence, on the fifth day of the hearing, the Respondent did not validly do what it then purported to decide to do.
[283] Respondent’s submissions [3.24].
The Respondent contended that a variation to a determination which adds to the determination a decision about a matter that was before the decision-maker can amount to a valid reconsideration.[284] That might be so, but, as previously outlined, the matter of liability to pay compensation for BWFS’ rotator cuff injury was not a matter before the decision-maker.
[284] Reliance was placed by the Respondent on Commonwealth of Australia v Snell [2019] FCAFC 57. The relevance of that decision in this proceeding was not, however, apparent given that it concerned the capacity of the Tribunal to refuse to allow an issue previously decided by it to be re-litigated.
Absent a reconsideration of the 16 March 2016 determination, there was no decision under s 62 to vary the determination. As there was no decision under s 62, there was no relevant reviewable decision. Hence, the application which BWFS made on the last day of the hearing was not an application for review of a reviewable decision. Accordingly, I do not have jurisdiction to review the matter the subject of that application
I appreciate that the invalidity of a decision (such as the decision purportedly made by the Respondent on the fifth day of the hearing) is not, of itself, a bar to the Tribunal’s review of it. The Tribunal’s review of a decision is not precluded by the fact that the decision-maker did not have power to make the decision.[285] In this regard, “…[t]he person or tribunal to whom application for each of the reviews was made had jurisdiction to undertake that review so long as the preceding decision-maker had made what purported to be a decision in exercise of powers conferred by the Act affecting the interests of the person seeking review. It mattered not whether the ground of complaint made about the preceding decision was merely that it is wrong on the merits, or that in law it was not an effective decision because it was made by someone without authority, or in excess of authority, or for improper purposes, or was vitiated through procedural irregularity such as a failure to accord natural justice.”[286]
[285] Collector of Customs v Brian Lawlor Automotive (1979) 2 ALD 1.
[286] Secretary, Dept of Social Security v Alvaro (1994) 34 ALD 72 at 78.
Here, however, the purported decision on the fifth day of the hearing was not simply invalid. It was also not one which the Tribunal was authorised to review.[287] While it was purportedly made under s 62 of the Act (and, as such, was, purportedly, a reviewable decision), it was not so made. Moreover, it could not have been so made.
[287] Shi v Migration Agents Registration Authority (2008) 248 ALR 390 at [132].
Section 62 enables decisions to be made on reconsideration of determinations. As I have said, the decision purportedly made by the Respondent was not a reconsideration and nor could it have been (however framed), given that it entailed the making of a fresh determination. Even if it were to stand in the Respondent’s shoes, the Tribunal could not make the relevant decision validly.
In this regard, Part VI of the Act clearly envisages a two-part or two-tier process being undertaken before the Tribunal acquires jurisdiction to review a reviewable decision. First, there is to be the initial determination.[288] Second, the initial determination is to be reconsidered, internally.[289] The Tribunal can only acquire jurisdiction after that second stage of the process.[290]
[288] See, for example, the requirement to give notice of determinations in s 61 Act.
[289] Act, s 62.
[290] Act, s 64.
The addition of a discrete determination to an existing determination by way of a purported variation to the existing determination would result in a single stage process in relation to the added determination. What was characterised in Lees as the second-tier decision-making stage would be avoided.[291] Such a result would be inconsistent with the legislative intent apparent from the two-part process provided for in the Act. In this regard, “…[t]he Tribunal has jurisdiction only in relation to a reviewable decision and a reviewable decision can only be reached after a two-tier process set out in Part VI of the SRC Act.”[292]
[291] Lees v Comcare [1999] FCA 753 at [39] (Lees).
[292] Vincent v Military Rehabilitation and Compensation Commission [2010] AATA 180 at [81].
Completion of the two-part process is a mandatory precondition to the Tribunal’s jurisdiction and not something that can be waived by the Tribunal. That this is so has been reflected in decisions made in several different contexts.[293]
[293] See, for example, YWXJ and Commissioner of Taxation [2010] AATA 326 concerning an attempt to add to a Tribunal review an issue not addressed in the Commissioner’s decision on a taxation objection.
For example, in Luck,[294] Tracey J dealt with a challenge to a decision of the Tribunal that it lacked jurisdiction in a particular matter involving freedom of information legislation. Under that legislation as it then stood, there could be no entitlement to apply to the Tribunal for review of a decision to refuse access to documents unless internal review of the decision had been sought. No such review had been sought. His Honour noted that the Tribunal then had, under its constituent legislation, power to review a decision in respect of which application had been made to it under any enactment. According to his Honour, the Tribunal was correct to hold that it did not have jurisdiction. If “…a person purports to make an application to the Tribunal, in circumstances where he or she has no entitlement to do so, it cannot be said that such an application has been made under another enactment.”[295]
[294] Luck v Secretary, Department of Human Services (No 2) [2014] FCA 798 (Luck).
[295] Ibid at [28].
In Beatson[296] the Tribunal decided it lacked jurisdiction to consider compensation for an injury which had not been the subject of a two-tier review process. This was so despite there being factors in common between the injury that had been the subject of the
two-tier process and the injury that had not been.[297]
[296] Beatson and Military Rehabilitation and Compensation Commission [2010] AATA 190 (Beatson).
[297] I note that this was not a case where the issue of compensation for the injury was before the original decision-maker but no decision was made in relation to it: cf Irwin v Military Rehabilitation & Compensation Commission [2009] FCAFC 33.
The jurisdictional prerequisite reflected in the two-part or two-tier process found in the Act is applicable to each claim. As the learned author of Administrative Appeals Tribunal states, “…if reconsideration is a prerequisite to jurisdiction, the claim under review must have been reconsidered separately from any other claims”.[298] In the context of the decision purportedly made by the Respondent, the “claim under review” is that of the Respondent and comprises its purported ceased effects determination with respect to BWFS’ rotator cuff injury. There has, however, been no separate reconsideration of that ceased effects determination.
[298] Pearce, D. “Administrative Appeals Tribunal”, 3.10, citing Comcare v Lofts [2013] FCA 1197.
As the purported decision the subject of Application 3 is not a reviewable decision I do not have jurisdiction to review it. I do not have “…power to inquire at large into matters that might be of interest, but for which I have no power to review. In fact, the tribunal has a clear duty to decline to hear such matters…”.[299]
[299] Re William Pearson and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 1077 at [14].
COSTS
The costs of the proceedings before the Tribunal incurred by BWFS in respect of Applications 1 and 2 shall be paid by the Respondent, such costs to be agreed or, absent agreement, taxed in accordance with the Tribunal’s practice direction on taxation of costs.
For the avoidance of doubt, those costs do not include costs incurred by BWFS in respect of the review he had sought of the decision of 17 March 2016 to affirm an initial determination of 29 January 2016 to deny liability to pay permanent impairment and
non-economic loss compensation with respect to the rotator cuff injury and the CPS condition.
Nor do those costs include costs incurred by BWFS in respect of Application 3, i.e. costs incurred in relation to the review sought by BWFS of the purported decision of 29 November 2019 on an “own motion” reconsideration of the determination to which Application 2 relates.
On behalf of BWFS it was contended that the proceedings the subject of Application 2 were rendered abortive because the determination of 16 March 2019 to which that Application relates was said “to be no longer correct” in the reviewable decision purportedly made by the Respondent on 29 November 2019.[300]
[300] ST13, 588.
This contention was directed to s 67(2) of the Act under which the responsible authority is made liable for costs incurred in connection with a proceeding rendered abortive because of a variation to or revocation of a determination consequent upon an own motion reconsideration of the determination.
That section does not apply in the circumstances. Simply because a determination has been varied as a result of an own motion reconsideration does not mean that an effective decision cannot be made on an application for review of a reviewable decision made in relation to the determination.[301] Indeed, the Act expressly contemplates own motion reconsiderations in the context of existing review proceedings.[302] Much depends on the nature of the decision made consequent on the own motion reconsideration. Here, as I have said, the purported decision of 29 November 2019 did not involve revocation but, rather, a purported variation. What was done did not deprive the determination of effect with respect to the conditions in relation to which it was expressed to apply (the CPS condition and the psychiatric condition). Continuation of the proceedings that relate to that determination has not been rendered “…fruitless, in the sense that the applicant has already been granted everything he could gain by virtue of the reconsideration.”[303]
[301] Re Rebeiro & Comcare (1996) 44 ALD 632 at [52].
[302] Act, s 62(1).
[303] Thomson and Comcare (Compensation) [2017] AATA 34 at [34].
DECISIONS
Application 1 concerns a reviewable decision of 17 March 2016 to affirm an initial determination of 29 January 2016 to deny BWFS’ claim to permanent impairment and non-economic loss compensation with respect to the psychiatric condition.
I have decided to set that reviewable decision aside and to remit the matter to the Respondent for reconsideration in accordance with directions that:
·the Respondent accept that the psychiatric condition is an injury which has resulted in a permanent impairment;
·in assessing the degree of that impairment, there is to be included, as part of the resultant effect of the psychiatric condition, the effects on BWFS of the treatment undergone by BWFS at the Northpark hospital in 2016 and 2017, insofar as those effects are permanent;
·in assessing the degree of that impairment, BWFS not be considered to have, in the past or presently, been malingering or to have exaggerated the effects of the psychiatric condition; and
·any assessment of the degree of that impairment be undertaken on a basis not inconsistent with these reasons.
Application 2 concerns a reviewable decision of 21 June 2016 to affirm an initial determination of 16 March 2016 to the effect that, on 23 February 2016, the Respondent had no liability to pay, and BWFS had no entitlement to, medical treatment cost and incapacity for work compensation with respect to the CPS condition and psychiatric condition.
I have decided to set that reviewable decision aside and remit the matter for reconsideration in accordance with directions that:
·each of the psychiatric condition and CPS condition was at 23 February 2016, and is, an injury;
·BWFS continued to suffer the effects of each of those conditions as at 23 February 2016, and presently suffers from those effects;
·in assessing the extent of any incapacity for work resulting from the CPS condition or psychiatric condition, BWFS not be considered to have, in the past or presently, been malingering or to have exaggerated the effects of the condition; and
·any such assessment be undertaken on a basis not inconsistent with these reasons.
I have also decided that, on the material before me, no reviewable decision or determination has been made by the Respondent effectively denying its liability to pay, and entitling it to cease paying, incapacity for work and medical treatment cost compensation in respect of the rotator cuff injury. Such a denial and entitlement did not comprise part of or arise from either the reviewable decision the subject of Application 2 or the decision purportedly made by the Respondent on 29 November 2019 and made the subject of review in Application 3.
293. I certify that the preceding 292 (two hundred and ninety-two) paragraphs are a true copy of the reasons for the decision herein of Senior Member Chris Furnell
......[sgd].......................................
Associate
Dated: 26 February 2021
Dates of hearing:
25-29 November and 2 December 2019
Advocate for the Applicant:
Solicitors for the Applicant:
Mark Carey
Melbourne Injury Lawyers
Advocate for the Respondent:
Michael Snell
Solicitors for the Respondent:
Lehmann Snell Lawyers
[1980] 1 NSWLR 81 at [19]; Martin and Australian Postal Commission [1999] FCA 655 at [34] discussing compensation for impairment in the context of an employment related aggravation of a
pre-existing condition, albeit acknowledging that in the context of permanent impairment compensation the effect of a non-employment related factor ought be isolated where it can be: Jordan v Australian Postal Corporation [2007] FCA 2028.
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