Cagliostro and Telstra Corporation Limited (Compensation)

[2019] AATA 559

Cagliostro and Telstra Corporation Limited (Compensation) [2019] AATA 559 (27 March 2019)

Division:GENERAL DIVISION

File Number(s):      2015/5133

Re:Angela Cagliostro

APPLICANT

AndTelstra Corporation Limited

RESPONDENT

DECISION

Tribunal:Senior Member A Poljak

Date:27 March 2019

Place:Sydney

The decision under review is affirmed.

........................[sgd]............................................

Senior Member A Poljak

CATCHWORDS

COMPENSATION – workers compensation – post-traumatic migraines – compensation in respect of medical expenses – incapacity for work – whether applicant continues to suffer from compensable injury – consideration of accuracy of applicant’s self-reporting to medical practitioners – reporting inconsistent with surveillance footage – decision under review affirmed

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 14, 16 & 19

REASONS FOR DECISION

Senior Member A Poljak

27 March 2019

1. Angela Cagliostro, the applicant, commenced employment with Telstra Corporation Limited (“Telstra”) as a business and enterprise website manager on 19 September 2011. The applicant lodged a claim for compensation dated 14 May 2012 in respect of an injury she sustained on 24 January 2012. The applicant claimed to have injured her head, forehead and neck as a result of slamming into a glass door at the QV Building in Melbourne. The applicant said that she was checking her mobile telephone while walking at the time she was injured. Liability to pay compensation for the injury was accepted pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the SRC Act”) in respect of “concussion” sustained on 24 January 2012 (“the compensable injury”).

2. In these proceedings, the applicant seeks review of a reviewable decision of the respondent dated 25 September 2015. By that reviewable decision it was decided that, as at 24 August 2015, the applicant had ceased to suffer from the effects of the compensable injury and was not entitled to compensation pursuant to sections 16 and 19 of the SRC Act as at 24 August 2015 (“the decision under review”).

3. The issues for determination are whether, as at 24 August 2015, the applicant:

   (a)continued to suffer from the compensable injury;

   (b)was incapacitated for work as a result of the compensable injury; and

   (c)reasonably required medical treatment as a result of the compensable injury.

   Key Facts and Relevant Evidence

4. The applicant has been examined and reviewed by a myriad of neurologists since the date of accident who all largely agree with a diagnosis of ‘post-traumatic migraines’. CT scans of the brain have been normal and no traumatic brain injury has been identified.

5. On 22 July 2015 the applicant attended on Professor Matthew Kiernan, neurologist, for neurological assessment and for the purposes of preparing a medical report. In a report dated 23 July 2015, Professor Kiernan noted that the applicant complained of daily headaches that may become severe such that her head was “pounding”. He notes that the diagnosis reached by the applicant’s treating doctors was that of post-traumatic headache however reported that “given the nature of the original injury, one may have expected any effects of that injury to have resolved by now”. He further notes that there was no evidence of acute traumatic abnormality on structural imaging of the brain in relation to the injury and states that in terms of the cause of the ongoing condition, “mood -related symptoms have been raised as a contributing factor. This would be more appropriately considered by consultant psychiatrist”. Professor Kiernan notes that the applicant writes emails to Telstra that are lengthy and coherent and he states that this “would be in keeping with absence of any significant evidence to suggest traumatic brain injury”. In regards to treatment, Professor Kiernan is of the opinion that “given the nature of the original injury, it is unexpected that [the applicant] should be receiving or required to receive acupuncture, physiotherapy, remedial massage and occipital nerve blocks more than three years later”.

6. In a supplementary report dated 30 July 2015, Professor Kiernan noted an email from the applicant in which Professor Bruce Brew had requested bilateral greater occipital nerve blocks to be undertaken. Professor Kiernan reported:

   “As noted in my original report, the purpose for ongoing nerve block procedures specifically in relation to the injury sustained by [the applicant], does not seem warranted.”

7. The applicant’s treating neurologist, Professor Brew has been involved in the applicant’s care since 17 June 2013. He has provided a number of reports in relation to the applicant’s condition. In a report dated 10 August 2015, he states that the applicant “still has almost daily headaches” with features of migraine and reiterates a diagnosis of “post-traumatic migraine” with chronic daily headache. In a report dated 19 October 2015, Professor Brew stated:

   “[The applicant’s] current work capacity is that she unfortunately cannot work. This is because of the chronic daily headaches that thus far have been extremely difficult to control with only very partial alleviation from a variety of procedures and possibly medications, as detailed in my previous reports.”

8. By her account, the applicant continues to suffer the effects of the compensable injury. In a statement dated 16 January 2016, the applicant stated:

   “I continue to suffer from headaches on a daily basis. Some days I have severe migraines. There would be 3-4 days per week where I have very limited capacity and can only assist with looking after my daughter but must rest. On top of this, I also get nauseous and am frequently sick. I can only tell whether I am going to have a good day or a bad day as soon as I wake up.

   On some mornings, it is difficult to even open my eyes and I know it is going to be a bad day. As well as this, I sporadically get a lightning pain in the left side of my head, which goes down into my left eye. When this occurs, I lose colour in my face and freeze up for a couple of seconds. This pain seems to occur more frequently when the effects of the occipital nerve block injections are starting to wear off.

   When I am having these severe migraines I am unable to drive which leaves me homebound and only able to walk up to the local shops if in need of anything. Light and noise can be unbearable.

   I have not been able to exercise other than walk is any increase in my heart rate will lead to increased severity of migraines…

   My husband and my parents help me with several things around the house such as cooking, cleaning and caring for our daughter. There are days when my migraines are so bad, I am unable to do much and am completely dependent on them…” [Emphasis added]

9. The applicant was referred to Dr Robin Fitzsimons, neurologist, for review. In her report dated 28 January 2016 Dr Fitzsimons outlines the history provided by the applicant. She recorded, inter alia, the following:

   “She now has daily headaches, with superimposed severe “migraines” which last for 3 or 4 days every week. She will vomit on severe days. There are no fortification spectra. The headaches are pounding, and she feels as though someone is holding the back of her neck.

   …

   When she has a severe headache she will stay in bed. This can mean that she spends half of most weeks in bed.

   …

   [The applicant’s] headaches are also associated with both phonophobia and photophobia (dislike of noise and light).

   …

   Late in 2012 she began, additionally, experiencing what she described as “lightning” pains focused over and around the left eye. These occur for a few seconds many times a day. Although they occur every day, the number of such events is variable. Although they have responded to occipital nerve blocks, she really isn’t certain that they are coming from her neck

   …

   She has no visual symptoms with these lightning pains…” [Emphasis added]

10. Following a physical examination of the applicant and a review of medical documentation provided, Dr Fitzsimons said in summation:

    “[The applicant] gives clear history of chronic daily headaches with post-traumatic migraine, dating from the subject accident; when she hit the left side of her head on glass…

    There is general neurological agreement that her headaches have the characteristics of post-traumatic migraine and are ongoing. Such post-traumatic migraine is a rare but recognised complication of relatively minor head injury. The mechanism must be considered uncertain. In her case it has been disabling to the extent of causing her to be in bed for half a week regularly…

    I consider that ongoing treatment as recommended by her treating neurologist, including the recommendations by Professor Brew, are reasonable…” [Emphasis added]

11. The applicant attended on Clinical Associate Professor Michael Fearnside, neurologist, on 12 May 2016. In a report dated 12 May 2016, Professor Fearnside recorded that the applicant described her headaches as varying in intensity; “The headaches were occipital and frontotemporal, each throbbing and bilateral. There were no tension type symptoms (such as a feeling of a tight band or heaviness around the frontotemporal region). When severe, the headaches could confine her to bed for three weeks. There were no associated visual symptoms but photophobia, nausea and vomiting were regular”. Under the heading “present condition”, Professor Fearnside records:

    “She experienced constant headache as described above, present day or night. Activity worsened the symptoms for example, attempting to exercise and the headache was also made worse with stress.

    Nausea and vomiting were present three or four days per week and she found Zofran (ondansetron) effective. When the nausea, vomiting and headaches were severe she took to her bed because of photophobia…

    Her lower limbs, walking and balance, all were normal. However, her husband commented that on some occasions he felt she had some imbalance and would guide her away from walking into a wall or door…

    With regard to activities of daily living [the applicant] was independent in self-care. With regard to the domestic chores her husband and mother provided a considerable amount of assistance. On a good day she was able to use a vacuum cleaner but her ability to undertake domestic chores depended on how she was feeling on the particular day. She was able to drive a car now when the nerve blocks were effective… She was able to go shopping depending on her symptoms…” [Emphasis added]

12. He reported that the applicant sustained a minor head injury and minor injury to her neck and face as a result of the incident on 24 January 2012. He recorded that “the applicant’s ongoing impairments relate to the post-traumatic headache with migrainous features” and that her “incapacity has been substantial”. Professor Fearnside reported that it would be anticipated that post-traumatic headaches would resolve over 6-8 months, however stated:

    “[The applicant’s] headaches have continued to a significant degree. Neurological opinion supports post-traumatic headaches with migrainous features. The neurological opinions are numerous. Consultant neurologists have more experience with the management of migraine than do I and I would defer to their opinion.”

13. In regards to the applicant’s current condition, Professor Fearnside reported:

    “There have been no effects of pre-existing or non-work related conditions which have overtaken the effects of the injury she sustained. She had a two year history of ongoing symptoms from the time of the accident on 24/1/12 and to date.

    By her account, [the applicant] does continue to suffer the effects of the injury she sustained on 24/1/12.

    Neurological opinion in respect of prognosis is more appropriate than mine as migraine is not a condition with which I regularly deal. Noting that she sustained the injury for years and four months ago, and there has been no change in her condition despite extensive and appropriate treatment, it seems likely that she will continue to be significantly disabled with headache, nausea and vomiting.

    It is not likely that her condition will worsen over the years.

    With regard to medical treatment, it is appropriate that [the applicant] remains under the care of her nominated treating doctors. The current medications of Relpax and Sandomigran seem to be the most effective and the occipital nerve blocks have at least given her some relief of the left facial pain. These should be continued…”

14. In regards to work capacity, Professor Fearnside opined:

    “[The applicant] does continue to suffer incapacity due to the injury. The barrier to her returning to work is the headache. If the headache resolved, the nausea and vomiting should also resolve together with the photophobia and she should be able to return to pre-injury duties. However, noting her current symptoms she is not presently capable of returning to pre-injury duties on a full or part-time basis. If she is spending 3 to 4 days a week in bed with the symptoms, not only her work capacity but her ability to attend to activities of daily living in care and support for her family would also be affected.

    Her current incapacity is not, as far as I can determine due to conditions or circumstances other than the injuries she sustained on 24/1/12.” [Emphasis added]

15. Dr Michael McGrath, vascular surgeon, provided a report dated 1 August 2016. Dr McGrath reported that he could find no evidence of vascular injury or vascular cause for the applicant’s ongoing migraines.

16. Professor Kiernan provided a further supplementary report dated 30 November 2016 in these proceedings. He records that he was provided with a number of medical reports and records (summons material) for his review and comment and stated:

    “The initial diagnosis was consistent with post-traumatic headache. Given the description of the injury provided by [the applicant], one would have expected that any symptoms related to such a process would have resolved by now. As noted in my original assessment and report, the issue of mood-related symptoms has been raised although I would defer to a consultant psychiatrist...

    The current cause of [the applicant’s] condition remains unclear. As stated in my report, there are no features to suggest traumatic brain injury. There was no history of loss of consciousness reported with the initial injury. It is accepted that in the absence of loss of consciousness and the normality of structural imaging of the brain, cognitive symptoms may relate to mood-related issues.” [Emphasis added]

17. Surveillance of the applicant undertaken over five days during the period 13 June 2015 to 20 June 2015; 15 days over the period 1 July 2015 to 30 July 2015; and seven consecutive days over the period 14 August 2015 to 20 August 2015 shows the applicant to be active outside her home for 5 to 7 days per week, carrying a young child in a baby carrier, shopping, wheeling trolleys around shopping centres, grocery shopping, attending a cafe, looking at her smart phone for periods of time, leaving undercover car parks and entering bright sunshine and walking to her local shopping centre (“surveillance material”).

18. Having reviewed surveillance material provided covering the period 1/7/15 to 22/7/15, Professor Fearnside stated the following in a report dated 20 June 2016:

    “When I assessed [the applicant] on 12/5/16, she had a history of severe and disabling headache which was present at all times, day and night, worsened with activity particularly exercise or stress. Only minor discomfort was reported in her neck and there was no history of brachialgia nor radicular symptoms in her arms.

    While pain is a subjective experience and cannot be measured, it is difficult to accept that [the applicant] is as disabled as she reported on 12/5/16 when her activities over a number of days, often consecutive, in the surveillance video are considered. The surveillance video revealed no evidence of any disability. Her movements were entirely normal, her gait and balance were normal and, other than the period where she was waiting at St Vincent’s Hospital, there was no suggestion that she had any headache. When I saw her, she reported that she experienced photophobia (paragraph 1.11). She was noted, on a number of occasions to walk in bright light and also in fluorescent light in the shops and there was no suggestion that she suffered from any discomfort. She was able to walk briskly but she told me that the headaches had limited her physical activities such as jogging. If she experienced headaches to the severity to which she reported, it would be anticipated that there would be some restriction of movement or some indication by way of physical movement or bodily posture that she was experiencing discomfort.

    While it might be accepted that there would be some variation in the intensity of her headaches, I formed the view, when I assessed her, that her headaches were constant and that she was never pain-free. Nausea, vomiting and photophobia were regularly present and when her headaches were severe, she took to her bed because of photophobia (paragraph 2.2). Allowing for some variation in the symptoms, her appearance in the surveillance video is not consistent with the history she reports.

    It is therefore concluded that [the applicant] is not as severely disabled as she reports.

    Assuming she does experience headache, the diagnosis continues to be post-traumatic headache. However, as I indicated in my previous report, post-traumatic headaches would generally be anticipated to resolve over 6-8 months (paragraph 8.1). Neurological opinion is that she has post-traumatic migraine but there was no evidence of any pain behaviour in the surveillance video…

    Noting her variable activities, it is also difficult to accept that she has any incapacity for work. She was seen actively walking, shopping, carrying packages and regularly using a motor vehicle. She was carrying her child and walking for prolonged periods of time. [The applicant] would therefore be fit to at least return to part-time if not full-time work in her pre-injury job with Telstra.” [Emphasis added]

19. Having reviewed further surveillance material covering the period from 13/6/15 to 20/6/15, Professor Fearnside provided an additional report dated 16 November 2016 in which he opines:

    “Having reviewed this video, [the applicant’s] activities were similar to those addressed in my earlier report dated 20/6/16. There was no evidence that she was in any discomfort during the surveillance video.

    Opinion previously expressed does not require amendment and the video of 13/6/15 and 20/6/15 supports my previous opinion.”

20. Professor Fearnside reviewed further video surveillance, of some three hours, taken between 12/5/16 and 20/5/16 (“further surveillance footage”). He again opined in a report dated 17 November 2016 that the applicant was seen performing normal activities of daily living with no evidence of any restriction of activities or discomfort. And he confirmed that opinions previously expressed did not require any amendment.

21. Having viewed the surveillance material, Professor Kiernan stated in a report dated 13 February 2017:

    “Having viewed the investigation material and films it does not cause me to alter my opinion about the diagnosis of [the applicant’s] condition nor does it suggest an alternative cause for her current condition, or my opinion in relation to medical treatment and incapacity for work.”

22. Professor Kiernan was then provided with the further surveillance footage. In a report dated 21 June 2017, he stated:

    “The extensive footage shows [the applicant] undertaking a wide range of activities including carrying bags, climbing stairs, freely turning her head and neck, shopping, running, raking leaves, carrying a child, pushing a toy car, lifting items out of a shopping trolley and loading shopping bags.

    [The applicant] appeared to engage in all activities in a normal fashion.

    The surveillance footage does not cause me to alter my opinion about the diagnosis of [the applicant’s] condition.

    The footage does not cause me to alter my opinion about her current condition.

    As stated, from a neurological perspective, no further specific treatment is suggested in relation to the original injury sustained on 24 January 2012.

    As stated in my previous assessments, there is no neurological disability that would require incapacity for work.

    …

    The appearance of [the applicant] and her function during the surveillance footage is consistent with my own assessment. As noted in my original report 23 July 2015, (page 4) neurological examination was normal.” [Emphasis added]

1. Having viewed the surveillance material, Professor Brew stated in a report dated 3 July 2017, the following:

   “… Whilst the video surveillance records [the applicant] performing regular duties in a seemingly normal fashion, this does not invalidate the presence of chronic daily headaches which of course are subjective experiences. Furthermore, the ability to perform routine tasks does not equate to the ability to perform work related duties that demand a higher level of cognition and attention. Accordingly, I do not think the video surveillance reports influences my evaluation of [the applicant].” [Emphasis added]

2. In the most recent report of Professor Fearnside, dated 7 September 2017, he noted that having reviewed the medical reports of Professor Brew, the applicant’s post-traumatic headaches have been extraordinarily difficult to treat. In regards to the surveillance material, Professor Fearnside agrees with Professor Kiernan that “…there is no alternative cause for her current condition and that, noting the extent of the video on various days and different times, that, for someone who has such severe headache described as present day and night (my report, 12/5/16) that she is able to undertake the activities as shown in the surveillance video”.

3. The further surveillance footage was provided to Professor Brew and in a further report dated 11 September 2017, he stated, inter alia:

   “I understand that the frequent migraine-type headaches do not significantly impact upon her activities of daily living as evidenced by the surveillance video material. Such data however does not assess the migraine-type headaches affect her intellectual functioning. As best as I can determine clinically, on multiple examinations of [the applicant] since 17 June 2013, such headaches do impact on her intellectual functioning, making it difficult for her to concentrate and perform the type of higher-level executive functions she was used to doing…” [Emphasis added]

4. At the resumed hearing Professor Brew explained how he had seen the applicant every 6-8 weeks and that her presentation was consistent. He said that the applicant was fully engaged and adhered to treatment discussed. Professor Brew advised that, in his opinion, the applicant was no longer capable of performing analytical work. When he was asked if the surveillance material and further surveillance footage caused him any concern, he answered “no”.

5. Professor Brew advised that there are no diagnostic tests for migraines. He accepted that there was no evidence of a pathological change in the applicant’s imaging however he stated that patients with migraines can have normal imaging.

6. Professor Kiernan reiterated at the resumed hearing that post-traumatic headaches are very rare 6 months or more post injury. He explained that the persistence of the applicant’s migraines, in his opinion, were related to her response to pain; particularly anxiety. He said that mood-related symptoms can perpetuate symptoms and this needed to be addressed by a psychologist and/or psychiatrist. Professor Kiernan advised that the chronic migraines do not preclude someone from going to work, even in respect of undertaking analytical tasks. Particularly when there is no deficit and no nerve problems. 

7. In regards to the surveillance material and further surveillance footage, Professor Kiernan was asked why he said the images demonstrated normal capacity. He stated that the functions performed on surveillance were normal; she reacted normally and demonstrated “normal function”, which included driving. Professor Kiernan explained that driving was considered a complex task.

8. In giving oral evidence, both Professor Kiernan and Professor Brew referred to neurological assessments undertaken on the applicant on 13 November 2012 and 17 and 28 October 2014 (“neurological assessments”). In regards to the testing undertaken on 30 November 2012, the results showed reduced effort. It was noted that the applicant was performing relatively well overall and fell in the Average and Above Average category for most of the assessment tasks however the results did indicate that she had mild problems with high-level attention, working memory, including retrieval of unstructured presented material, verbal initiation and planning/organisation; but demonstrated sound performance in relation to other executive function. It is noted in the report that the applicant’s cognitive difficulties, within the context of the parameters of the injury, were considered likely to be of a non-organic basis and related instead to pain (i.e. migraines) or possibly medication side-effects. The results of more recent neurological testing undertaken by Dr Jane Lonie, clinical neuropsychologist, on 17 and 28 October 2014, are contained in a report dated to 10 November 2014. Dr Lonie detailed in the report the applicant’s current status, specifically:

   “She is presently medication free…She is bedridden with migraine, light and noise sensitivity and nausea 3-4 days of each week... The headaches come in clusters and are never present for less than one day at a time. [The applicant] experiences considerable fatigue on resolution of the headaches… On 3-4 days of each week, [the applicant] is bedridden with pain, fatigue, sensitivity to noise and light and nausea…”

9. Dr Lonie reports that, in summary of neuropsychological performance, the applicant performed within an average range and in some cases at an above average level. Relevantly, she reported, inter alia:

   “… Her pre-morbid level of general intellectual functioning was estimated to fall within an average range, on the basis of her performance on an irregular word reading task (a test specifically developed to estimate pre-morbid functioning)… Despite pre-morbid and current levels of intellectual functioning falling within an average range for age, [the applicant’s] occupational performance would suggest that aspects of her cognitive functioning likely in fact lie above this level…

   [The applicant] performed at average levels, or in some cases above this, on a number of measures assessing her high level attention.

   Her performances on measures of her executive ability (i.e. abstract reasoning, verbal inhibition, flexibility, problem-solving and verbal initiation) were average, or in some cases above average…” [Emphasis added]

10. She notes however that in comparison to the previous neuropsychological findings in November 2012, there does not appear to be any improvement in the applicant’s cognitive performance with the cessation of her analgesic medication or indeed the passage of time.

11. At hearing, Professor Kiernan reiterated that the neurological assessments showed that the applicant performed at an average or above average level and that any reduction in her cognitive abilities could possibly be the result of anxiety and/or mood disorder. In this regard he referred to the report of Dr Ross Mellick, neurologist, dated 26 February 2013. Dr Mellick opined that the details of the injury suffered by the applicant did not give rise to the possibility of a brain injury and that the applicant’s present complaints of pain and cognitive difficulty were in keeping with a variant of tension headache, associated with cognitive problems secondary to anxiety or mood disorder. He stated that any indication of impairment restricting the applicant from performing pre-injury work is to be regarded as psychologically based.

12. Professor Brew agreed in a large part with the report of Dr Mellick however did not agree that post-traumatic migraine had been treated and that psychological issues were the main driving factor in regards to the applicant’s current impairment. Professor Brew stated that “everyone agrees that chronic pain has some psychological component” however in this case there was no evidence to suggest that psychological components had become the primary driver. In regards to the neurological assessments, Professor Brew was questioned about why, in light of the assessments, was he of the opinion that the applicant could not work. Professor Brew explained that neuropsychological testing can be very difficult to interpret and that the assessments identified some mild impairment and he questioned the applicant’s ability given her role prior to the injury. Specifically he said that he would contest the finding that the applicant’s pre-morbid intellect was average. When challenged about why he questions the reports, Professor Brew said that there was amongst other things, a disconnect between the results and what difficulties the applicant reported.

13. In response, Professor Kiernan reiterated that the neurological assessments were entirely consistent with his conclusion that the applicant could be engaged in her pre-injury employment and opined that most neurologists would accept a report from a clinical neuropsychologist. He conceded that he did not get a detailed description of what was involved in the applicant’s job prior to injury however reiterated that the applicant did not suffer from a neurological deficit which would prevent her from working with computers and that she did not suffer from a neurological deficit which would preclude her from her pre-injury duties.

    Consideration

14. The consensus of the medical experts is that the applicant suffers from ‘post-traumatic migraines’. As Professor Brew stated, there is no diagnostic test for migraines; they are a subjective experience. It is also plain on the evidence that the applicant’s condition has been difficult to treat. The bulk of the available medical evidence details the history provided by the applicant of the injury and her symptomatology that followed since that date. She has consistently represented to medical practitioners that she suffers from chronic daily migraines. Although they vary in intensity, the applicant has reported that her symptoms have remained consistent. The applicant has repeatedly reported (since at least early 2016) that she experiences constant daily headaches with nausea, photophobia and vomiting. She has reported that when her migraines were severe she took to bed and that this occurred 3 to 4 days per week. It appears that this history and description of current difficulties has been recorded and accepted by the bulk of medical practitioners who have assessed the applicant. This has no doubt been one significant aspect that has been taken into consideration when formulating their opinion about the applicant’s condition and treatment.

15. The respondent has obtained and provided to the parties and the Tribunal surveillance material and further surveillance footage. I have real concerns about the accuracy of the applicant’s reporting of her condition to medical practitioners and this is only heightened given the surveillance material and further surveillance footage. The material recorded the applicant’s movements on consecutive days in June, July and August 2015, and May 2016.  As identified by the medical experts who reviewed this material, including Professor Brew; the applicant appeared to have normal capacity. The evidence shows the applicant to be active outside her home for 5 to 7 days per week, carrying a young child in a baby carrier, driving, shopping, wheeling trolleys around shopping centres, grocery shopping, attending a cafe, looking at her smart phone for periods of time, leaving undercover car parks and entering bright sunshine and walking to her local shopping centre, etc. Her behaviour seen in the videos is not consistent with her self-reporting of symptoms.

16. Professor Brew attempted to separate the surveillance material from the applicant’s ability to work in her pre-injury duties by explaining that in his opinion, even though the applicant is capable of performing 'routine tasks’ she was not capable of performing analytical work. This however is not supported by the neurological assessments undertaken on the applicant. In particular, the neurological assessment in 2014 recorded that the applicant’s pre-morbid intellectual functioning was estimated to fall within the average range. At the date of assessment, the applicant fell within the average range and in some cases above average range. Professor Brew said that there was a real disconnect between the results and the difficulties reported by the applicant. This may very well be the case, however as already stated, I have little confidence in the accuracy of the self-reporting of the applicant.

17. Professor Kiernan claims that the neurological assessments and surveillance material are consistent with his conclusion that the applicant could be engaged in her pre-injury employment. I agree. As Professor Fearnside opined, “allowing for some variation in the symptoms, her appearance in the surveillance video is not consistent with the history she reports. It is therefore concluded that [the applicant] is not as severely disabled as she reports”.

18. I prefer the evidence of Professor Kiernan as it is supported by that of Professor Fearnside, Dr Mellick, the neurological assessments and the surveillance material.

19. I find the applicant did not continue to suffer the effects of the compensable injury sustained on 24 January 2012 as at 24 August 2015 such that as at that date, she was not incapacitated for work and did not require medical treatment. I find that as at 24 August 2015 the applicant is not entitled to receive compensation under section 16 and Part II, Division 3 of the SRC Act in respect of any injury sustained on 24 January 2012.

    Decision

20. The decision under review is affirmed.

I certify that the preceding 42 (forty-two) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak

............................[sgd]........................................

Associate

Dated: 27 March 2019

Dates of hearing:	14 &15 August 2017; 21 February 2018
Counsel for the Applicant:	Mr L Grey
Solicitors for the Applicant:	CommComp Lawyers
Counsel for the Respondent:	Mr J Wallace
Solicitors for the Respondent:	Sparke Helmore Lawyers