Cleland and Comcare (Compensation)

Cleland and Comcare (Compensation) [2017] AATA 1179 (31 July 2017)
Division:GENERAL DIVISION
File Number: 2016/1932
Re:Janina Cleland
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Ms LM Gallagher, Member
Date:31 July 2017
Place:Perth

Comcare’s reviewable decision of 30 March 2016 that the Applicant was not entitled to compensation for permanent impairment under sections 24 and 27 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) is affirmed.
........[Sgd]................................................................
Ms LM Gallagher, Member
CATCHWORDS
COMPENSATION – Commonwealth employees – aggravation of myalgia and myositis – major depressive disorder – whether liable under section 24 and section 27 - whether applicant continues to suffer from accepted conditions – section 14 determinations remain in force - decision under review affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 4(1), 7(4), 14(1), 24, 27
CASES
Telstra Corporation Limited v Hannaford (2006) 151 FCR 253
SECONDARY MATERIALS
Guide to the Degree of Permanent Assessment of Permanent Impairment (Edition 2.1)
REASONS FOR DECISION
Ms LM Gallagher, Member
31 July 2017
INTRODUCTION

Ms Cleland worked as a Tactical Analyst Officer at the Australian Customs and Border Protection Service from 6 November 1995 to 27 March 2015. Ms Cleland’s cessation of employment was due to invalidity retirement.
On 3 December 2010, Ms Cleland lodged a claim for compensation for an exacerbation of a pre-existing condition of fibromyalgia.
On 24 March 2011, Comcare accepted Ms Cleland’s claim for “aggravation of myalgia & myositis, unspecified” (aggravation of myalgia) under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act), on the basis of medical evidence that the aggravation was caused by stress triggered by a workplace restructure. The date of injury was deemed to be 13 September 2010, being the date Ms Cleland first sought medical treatment for the condition, in accordance with subsection 7(4) of the Act.
On 3 December 2014, Comcare wrote a letter to Ms Cleland’s employer in support of her application for invalidity retirement, relying on the available medical evidence, Ms Cleland’s rehabilitation history and consultation with Comcare’s Injury Management Advisory Service.
On 12 August 2015, Ms Cleland lodged a claim for permanent impairment compensation and non-economic loss in relation to her accepted ‘aggravation of myalgia’ condition. Ms Cleland also included in the claim for permanent impairment her ‘chronic widespread muscle pain,’ ‘tenderness,’ ‘headaches incl. migraines,’ ‘sleep disturbances,’ ‘cognitive problems,’ ‘restless leg,’ ‘chronic fatigue (intense fatigue),’ ‘depression’ and ‘sexual dysfunction.’
In support of Ms Cleland’s claim for permanent impairment compensation, Dr Varne completed Part B of the claim form (T61). Dr Varne stated that she was ‘uncertain’ as to whether Ms Cleland’s impairments had stabilised but there were “also likely exacerbations from time to time.” As to the degree of assessed impairment, Dr Varne states on the form, “As per Centrelink Guide I estimate 15-20% impairment of body function as a whole.”
On 11 January 2016, Comcare accepted liability under section 14 of the Act for ‘major depressive disorder, recurrent episode’ (major depressive disorder) as a secondary condition to Ms Cleland’s aggravation of myalgia.
On 17 February 2016, Comcare determined that none of Ms Cleland’s accepted conditions were permanent and that they may improve. The Comcare delegate also determined that Comcare had not accepted liability under section 14 for Ms Cleland’s ‘tension headaches,’ ‘migraines,’ ‘sleep disturbances,’ ‘cognitive problems’ and ‘sexual dysfunction’, therefore it was also not liable to pay compensation for those conditions under section 24 of the Act.
On 9 March, 2016, Ms Cleland requested a reconsideration of Comcare’s determination of 17 February 2016, with detailed submissions regarding the medical evidence and with supporting documents attached.
On 30 March 2016, Comcare affirmed its determination of 17 February 2016 on the basis that Ms Cleland’s aggravation of myalgia and major depressive disorder (together, the accepted conditions) were not permanent. In his reasons, the review delegate stated that Ms Cleland had not undertaken all reasonable medical treatment, there was a likelihood of improvement in her conditions and that he was not satisfied that Ms Cleland was on optimum medication at the time of her assessments.
On 13 April 2016, Ms Cleland requested a review of the reviewable decision. In her request, Ms Cleland gave the following reasons for her application:
It appears that all of the information I provided to Comcare has been ignored while all of the opinion supplied by the medical practitioners have [sic] been taken into account. In addition the decision maker states – inter alia – that he is not satisfied that the “impairment is permanent” and that I was not on “optimum medication” at the time of my assessments without providing medical data and references to justify these statements.
RELEVANT LEGISLATION
Relevantly, subsection 4(1) of the Act contains the following definitions:
“…permanent means likely to continue indefinitely…”
“…impairment means the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function.”
Subsection 14(1) of the Act provides for compensation for injuries suffered by employees of the Commonwealth, Commonwealth authorities or licensed corporations, as follows:
14 Compensation for injuries
(1)Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
Subsection 24(1) of the Act provides that where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury.
Subsection 24(2) of the Act provides that for the purpose of determining whether an impairment is permanent, Comcare shall have regard to:
(a)the duration of the impairment;
(b)the likelihood of improvement in the employee’s condition;
(c)whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; and
(d)any other relevant matters.
Section 24 of the Act goes on at subsections (4), (5), (6) and (7) to provide that in order for permanent impairment compensation to be payable under that section, the degree of permanent impairment (other than for hearing loss), as assessed under the Guide (being the Guide to the Degree of Permanent Assessment of Permanent Impairment (Edition 2.1), (the Guide), must be 10% or more.
Subsection 27(1) of the Act provided that where compensation is payable under section 24, Comcare is liable to pay additional compensation to the employee for any non-economic loss suffered as a result.
ISSUES FOR DETERMINATION
The key issue before the Tribunal is whether Comcare is liable to pay to Ms Cleland compensation pursuant to sections 24 and 27 of the Act in respect of accepted conditions.
This issue requires the Tribunal to consider the following:
(a)whether Ms Cleland continues to suffer from the accepted condition;
(b)if so, whether each of Ms Cleland’s accepted conditions currently results in impairment;
(c)if so, whether any such impairment is permanent, meaning ‘likely to continue indefinitely’ as per the definition of permanent in subsection 4(1) of the Act and having regard to the factors in subsection 24(2) of the Act; and
(d)if permanent, the degree of whole person impairment (WPI) applicable under the Guide.
As the Tribunal has concluded below (refer to paragraph 83) that Ms Cleland no longer continues to suffer from the accepted conditions, the Tribunal has not addressed the legislation nor considered the issues relevant to whether each of Ms Cleland’s accepted conditions currently result in impairments, whether any such impairments are permanent and the degree of WPI applicable under the Guide. It is not required to do so.
EVIDENCE
The matter was heard in Perth on 19 April 2017. Ms Cleland appeared from Canada by Skype link and was represented by Mr David Cleland, who appeared in person. Comcare was represented by Counsel, Mr Hawker. Mr Hawker was instructed by Ms Vetter, from Sparke Helmore Lawyers.
Evidence before the Tribunal
The Tribunal received the following evidence:
·Statement from Ms Cleland, dated 17 November 2016 (A1);
·T documents (R1);
·Letter from Ms Christine Dyer, Psychologist, to Dr Gina Varne, General Practitioners, dated 18 November 2009 (R2);
·Relevant extracts of documents produced under summons by Leeuwin Medical Group (R3);
·Letter from Dr Colin Somerville, Allergist, to Dr Varne dated 12 November 2013 (R4);
·Relevant extracts of documents produced under summons by Fremantle Counselling and Psychological Services (R5);
·Supplementary Report by Dr Patrick Hanrahan, Consultant Physician, Rheumatologist, dated 29 March 2017, along with letter of instruction by Sparke Helmore Lawyers, dated 23 March 2017 (R6);
·Supplementary Report by Dr Keith Grainger, Consultant Neurologist, dated 12 April 2017, along with letter of instruction by Sparke Helmore Lawyers, dated 24 March 2017 (R7); and
·Supplementary Report by Dr Yue Chong (Olivia) Lee, Consultant Psychiatrist, dated 3 April 2017, along with letter of instruction by Sparke Helmore Lawyers, dated 20 March 2017 (R8).
Ms Cleland and Dr Hanrahan gave oral evidence at hearing. Relevant aspects of the evidence and material before the Tribunal will be referred to below.
Ms Cleland
At the hearing, Ms Cleland gave oral evidence to the Tribunal by Skype link. Ms Cleland had earlier provided a statement dated 17 November 2016 (A1).
Ms Cleland gave evidence before the Tribunal that with regards to her fibromyalgia, she had at first thought it was the flu. Ms Cleland said in 2010 she had complained to Dr Varne, who performed exploratory tests, which ruled out a number of conditions including Ross River Virus and Rheumatoid Arthritis. Ms Cleland said she was then diagnosed with fibromyalgia.
Ms Cleland said that from around September 2010 to the Christmas period of that year, her work was ‘going through a restructure’ and her team at work reduced from eight people to one person. Ms Cleland said during these months of uncertainty, her headaches and fatigue increased. Ms Cleland told the Tribunal that she kept her manager informed as her symptoms increased and her manager would then redistribute her work. Ms Cleland said that this happened several times.
Ms Cleland said she tried many medications on and off for her fibromyalgia. Ms Cleland said that reducing her work hours was ineffective and physiotherapy and acupuncture also did not work.
Ms Cleland said that her stress and anxiety then spilled over into her home life. Ms Cleland said she could not sleep, she could not perform domestic duties, her marriage suffered, she isolated herself and she could not go out. Ms Cleland said she wasn’t coping at the time. Ms Cleland stated that all of these factors led to her ‘temporary marriage breakdown’ (for 18 months from 2011 to mid-2013).
Ms Cleland said that she recalled one particular day at work where she had to be taken home by a co-worker. Ms Cleland said she was then at the stage where she ‘couldn’t do anything’ and Dr Varne ‘signed her off work completely.’
Ms Cleland said she then (in 2011) lodged her claim, specifying that it was an ‘exacerbation’ claim.
Ms Cleland said that she was also forced to move house, the move itself being stressful and her stress and symptoms remained. Ms Cleland said her symptoms have still not improved and that she experiences muscle spasms, she ‘forgets things’ and that she looks tired. Ms Cleland said that she is ‘not faking being sick’ and that she ‘desires to be well.’
Ms Cleland said that (in August 2015) she decided to apply for ‘lump sum’ compensation.
Ms Cleland drew the Tribunal’s attention to the following extract from her statement, regarding her pain and suffering (A1):
Having ongoing long lasting chronic pain means many things change, many of which are invisible to those on the ‘outside’; even those close to you.
Unlike having a broken leg or being cut or any other visible trauma, most individuals do not understand even a little about chronic pain or its effects. And even those that think they know are actually ill informed.
I have to spend most of every day in considerable pain and exhaustion, and if you visit, I probably don’t seem like much fun to be with. However I’m still me – stuck inside this body.
I’d like you to understand the difference between “healthy” and “happy”. When someone has influenza, they probably feel miserable for the two or three weeks they have it, but I’ve been ‘sick’ and in pain for years.
I can’t be miserable all the time. In fact, I work hard at not being miserable both for myself and for those around me. So, if you’re talking to me on a good day and I sound happy, it means I’m happy, that’s all! It does not mean that I’m not in a lot of pain, or extremely tired, or that I’m getting better, or any of those things. I have tried many different pain killers and various drugs to help me cope but none of these have worked in any significant way. So please don’t say, “Oh, you’re sounding better!” or “You look so healthy.”
I am merely coping.
Please understand that being able to stand up for ten minutes doesn’t necessarily mean that I can stand up for twenty minutes, or an hour. Just because I managed to stand up for thirty minutes yesterday doesn’t mean that I can do the same today. With a lot of diseases you’re either paralysed, or you can move. With fibromyalgia it gets more confusing every single day. I can only compare it to a roller-coaster ride as I may be ‘up’ one day and ‘down’ the next.
I never know from day to day how I am going to feel when I wake up. In most cases, I never know from minute to minute. This is one of the most challenging and most frustrating components of chronic pain.
Chronic pain is hard for many to understand unless they have experienced it themselves. It wreaks havoc on the body and the mind.
It is extremely exhausting and exasperating. Almost all the time, I know that I am doing my best to cope with this, and live my life to the best of my ability. However I also know it has led to the breakup of [sic] marriage.
On cross-examination, Ms Cleland said that she has been absent from work since February 2014.
Ms Cleland confirmed with Mr Hawker that she attended with Dr Lee in November 2015 (T72). Ms Cleland agreed that she told Dr Lee at that time that she had commenced taking antidepressant medication in 2010 but she was unable to recall whether that was prior to or after September 2010, the date of injury.
When asked by Mr Hawker, Ms Cleland said that she had been on antidepressants prior to 2010, but had not gone into detail with Dr Lee because she had thought Dr Lee’s questioning had been solely in the context of her fibromyalgia. Ms Cleland confirmed that prior to her fibromyalgia diagnosis, she had been prescribed antidepressants for periods in 1999, 2004 and 2007 to 2010.
Ms Cleland said that in 2009 she was referred to Fremantle Clinical Psychology for psychological counselling. Mr Hawker drew Ms Cleland’s attention to the following extract from the letter from Ms Dyer to Dr Varne dated 18 November 2009 (R2) in this regard:
Janie has now attended four sessions with me. I am writing to you because during our session today Janie began to describe a cyclical pattern of mood disturbance that has been occurring for some years. She reported a pattern of several weeks of low mood followed by several weeks of agitation and increased anxiety. Sometimes in the past there has been an intervening period of more stable mood, but in recent years this has not been the case. I am wondering if she may have a rapid cycling mood disorder (a bipolar type II disorder). While some external events can worsen her mood state, they do not appear to be causing the fluctuations. Antidepressant medication reduces the severity of her depressed mood but does not stop the mood swings that she is reporting.
In relation to this extract, Ms Cleland stated that she was trialling many antidepressants at the time (i.e. in 2009).
Ms Cleland confirmed with Mr Hawker that she had attended with Dr Hanrahan in January 2016 (T80) and reported to him her history of fibromyalgia. Again, Ms Cleland said that she reported to Dr Hanrahan that she had started taking antidepressants in 2010 and that she had not previously been on treatment for depression because she had thought Dr Hanrahan’s enquiries had been solely in the context of her fibromyalgia.
Ms Cleland said she had reported to Dr Hanrahan that she did not know why her symptoms had developed in 2010, symptoms which she described as her feeling like she ‘had the flu.’ Ms Cleland said that in reality, her symptoms had actually been ‘going on’ for some two and a half years prior to 2010.
In this regard, Mr Hawker then drew Ms Cleland’s attention to Dr Varne’s referral of Ms Cleland to Dr Eugene Ang, Consultant Rheumatologist, dated 28 January 2010, which relevantly states in part:
Thank you for asking me to see Janie who presents with a two and [sic] half year history of multiple joint pain. This initially began in the fingers and knuckles and then spread to both feet, wrists, knees and ankles. There is reported swelling with prominent fatigue and prominent morning stiffness and nocturnal pain.
Ms Cleland agreed that this extract put the onset of her symptoms of fibromyalgia back to at least 2007.
Mr Hawker referred Ms Cleland to Dr Grainger’s report (T81), which relevantly states:
She gives no history of any migraine headaches. These may have been present in the past. She did use the word “throbbing” however there was no rhythmical element to her headaches.
Mr Hawker also referred Ms Cleland to the following extract from the letter from Dr Somerville to Dr Varne dated 12 November 2013 (R4):
She has had a longstanding history of migraine which seems to be triggered by chocolates and wine.
In response to the extracts quoted at paragraphs 43 and 44 above, Ms Cleland said that she had experienced headaches since her early twenties; however it was a long time ago so she did not mention it to Dr Hanrahan.
When asked by Mr Hawker, Ms Cleland said that she had been absent from the workplace since 2014, she had ceased employment in 2015 and she had been living in Canada since August 2016.
As to the possibility of whether Ms Cleland’s living conditions in Canada had contributed to her symptoms of fibromyalgia, Mr Hawker then referred Ms Cleland to the following extract from Dr Varne’s report dated 14 February 2011 (T20):
On the most recent review, a significant contribution to her symptoms has been the cold weather in Canada and the uncomfortable long haul flight back to Perth. Prior to her leaving Perth though conditions at work were significantly impacting on her fibromyalgia. However, her symptoms had improved with treatment.
Ms Cleland said in relation to the extract quoted at paragraph 47 above, she did not recall that conversation generally, nor did she recall discussing the weather in Canada with Dr Varne.
Mr Hawker then took Ms Cleland to Dr Varne’s referral of her to Dr Christina Manifredi, Registered Clinical Psychotherapist, dated 3 February 2016 (R5), noting that at that time, it appeared that workplace stress had no feature in that referral and rather, personal relationship issues were present:
Specifically Janie has had depression for many years and has taken SSRI’s and this in fact predated the W/C case, [sic] She also has anxiety and relationship issues and sexual dysfunction. She and [sic] husband are unable to talk about the latter especially and I hope you can help with all of these issues.

Mr Hawker referred to Ms Manfredi’s handwritten notes of her consultation with Ms Cleland on 22 February 2016 (R5), as follows:
“…Primary concerns for Janie:-
Her unhappy and “sexless” and “lack of intimacy” in her marriage. Is currently in affair relationship with another man in Canada. Feels “guilty” about this however affair satisfies some sexual and intimacy needs…
…Her primary intent is in “understanding” what she should do about her marriage...
“…Observation.
Janie is clearly depressed and anxious about what fibromyalgia [illegible] mean for future for her. And it is also clear that her unhappy marriage contributes to her depression.”
“…Process.…
…She has a choice – Life of Fear and unhappiness or facing the fear – build resources and take a risk with sister’s support.”
Mr Hawker also referred to Ms Manfredi’s handwritten notes of her second consultation with Ms Cleland on 8 March 2016 (R5), as follows:
“Janie has spoken with her sister and decided to take a risk and leave her marriage…”
As to the affair referred to in Ms Manfredi’s notes at paragraph 50 above, Ms Cleland said this should only be in reference to an affair she had whilst separated from her husband in 2008.
With regard to the reference in Ms Manfredi’s notes at paragraph 50 above as to what Ms Cleland should do ‘about her marriage’ Ms Cleland said that at the time of her first consultation with Ms Manfredi, she was still with Mr Cleland and had not yet moved back to Canada.
In relation to the reference in Ms Manfredi’s notes at paragraph 50 above to Ms Cleland ‘having a choice,’ Ms Cleland said that her relationship with Mr Cleland was an issue for her in February 2016, one that troubled her enough so that she consulted with a psychotherapist. Ms Cleland, however, disagreed with Mr Hawker’s proposition that her marriage was a source of concern from her from the time of her marriage separation in 2008 through to the point in 2016 when she left Mr Cleland and moved to Canada. Rather, Ms Cleland said, her marriage was not a constant source of concern throughout these years.
As to the entry in Dr Varne’s clinical notes (R3) dated 2 September 2009 which reads, “Back in from Canada, staying in a room at girlfriends, David wants reconciliation,” Ms Cleland accepted that in 2009, her marriage was of sufficient concern that she raised it with her GP, however denied any periods of separation (other than the initial period in 2008) prior to her eventual move back to Canada in 2016.
On this issue, Ms Cleland said that Dr Lee’s reference in her report dated 7 December 2015 (T72) to Ms Cleland having left her husband for 18 months over a period from 2011 to 2013 when she went to Canada for a few months was incorrect.
As to the other stressors relating to family issues around the time Ms Cleland lodged her permanent impairment claim, Mr Hawker directed Ms Cleland to the following entries in Dr Varne’s clinical notes (R3):
“…Tuesday April 14, 2015…was going to surprise sister for her 60^th – they were going to Florida but her neice [sic] said not to come then sister found out and didn’t support her so not to come either. Devastated and saddened. Obviously some stress and just sold house and moving – although just over the road. Long chat re exacerbation and wait and see…
…Tuesday 14 July 2015…Headaches ++ now by day too. Moved and now renovating so some stress too…
…Tuesday September 8 2015…David now working as casual phlebotomist and needs car so w/o transport unable to get to physio etc…
…Tuesday November 24 2015…Off to Canada for Xmas by herself. Needs scripts. Her and David hols next year mid year for 5/12 Janie not doing well with retirement. David now working as phlebotomist and will train to be a nurse. All good for him…”
As to the above references, Ms Cleland said that she recalled her conversation with Dr Varne that she was off to Canada for Christmas by herself. Ms Cleland did not elaborate on any of the other extracted clinical notes.
When asked whether she was participating or had participated in an appropriate exercise program, as recommended by Dr Hanrahan (T80), Ms Cleland said that ‘it hurts when she exercises.’
Dr Hanrahan
At the hearing, Dr Hanrahan provided oral evidence to the Tribunal by telephone. Dr Hanrahan had earlier provided to the Tribunal the following reports:
·Report dated 3 February 2016 (T80); and
·Supplementary report dated 29 March 2017 (R6).
In response to Ms Cleland’s question as to whether ‘polypharmacy’ had had any effect on her fibromyalgia condition, Dr Hanrahan said that he would have considered it if there had been any evidence of it, however, in any event he was not aware of polypharmacy being a cause of fibromyalgia.
Ms Cleland drew Dr Hanrahan’s attention to her list of medications from March 2015. Dr Hanrahan commented that those medications contained agents used to treat depression and are medications that are commonly used together. Dr Hanrahan said that from this list he did not form the view that medication was a predisposing factor to the exacerbation of Ms Cleland’s fibromyalgia.
Additional medical evidence
Ms Cleland was diagnosed with fibromyalgia by Dr Eugene Ang, Rheumatologist, on 28 February 2010 (T6). Dr Varne confirmed Dr Ang’s diagnosis on 14 February 2011 (T20).
Dr John Hayes, Rheumatologist, provided a report dated 22 February 2011 (T23), which states that Ms Cleland had pre-existing fibromyalgia which produced an aggravation of her pain symptoms in September 2010 due to anxiety related to job uncertainty. Dr Hayes states in the report that as Ms Cleland’s job position had stabilised and she appeared to be coping satisfactorily, the aggravation in September 2010 had since resolved and her current ongoing symptoms are related to her pre-existing fibromyalgia condition.
In her report of 12 August 2014 (T43), Dr Varne states her opinion that “Ms Cleland’s condition will not improve with treatment. Many forms of treatment have been tried and used, and she is currently trialling other medications, but symptoms have remained despite all these treatments so far.”
Dr Lee’s report dated 7 December 2015 (T72) states that Ms Cleland’s psychiatric symptoms are not related to work in particular as they did not resolve with ceasing work, her mood has not improved and those depressive symptoms that remain are related to the Ms Cleland’s pre-existing fibromyalgia condition.
Dr Lee’s report dated 7 December 2015 also records Ms Cleland as having given the following history, in part:
“Between 2011 and 2013, in spite of memory and cognitive problems, she had managed to move and live by herself in Canada then organise herself a rental home upon return.”[1]
[1] The Tribunal notes Ms Cleland’s response to this extract (T77), in which she states that during her six week trip to Canada in 2012, she stayed with her sister, using the time among other things to rest and consider marital issues.
In his report dated 3 February 2016, (T80) Dr Hanrahan states that it is unclear that Ms Cleland’s symptoms are related to work. Dr Hanrahan accepted, however, that there was an exacerbation of symptoms related to an increased workload and uncertainty of employment prospects.[2] Dr Hanrahan goes on to consider that he would have expected some degree of improvement when ceasing work and going to Canada if symptoms were related to employment, however this has not occurred.
[2] The Tribunal notes in this regard that Ms Cleland has been totally absent from work since 19 February 2014 (T41).
In his report dated 12 February 2016 (T81), Dr Grainger states Ms Cleland reported to him that her symptoms have been progressively worsening and there had been no improvement since she ceased work. Dr Grainger states that if Ms Cleland felt that her (current) headaches were precipitated by work they should ease or resolve when any stresses have been resolved. Dr Grainger also considers that the fact that the symptoms have continued after being off work for over a year would suggest that other factors were present. The Tribunal notes in this regard that Ms Cleland has been absent from the workplace since February 2014 and ceased employment in March 2015.
In his supplementary report dated 29 March 2017 (R6), Dr Hanrahan gives his opinion on whether any work related exacerbation/aggravation of Ms Cleland’s condition has ceased or continues and whether any continuation of symptoms results from any new cause:
…In my hand written notes dated the 20^th January 2016, I note ‘don’t know why it came on in 2010’, obtained from Ms Cleland. There was no particular incident at work or elsewhere that I am aware of, which resulted in the development of symptoms whether these commenced in 2007, 2009 or 2010. In the report based on my consultation with Ms Cleland on the 20^th January 2016, I wrote ‘it is unclear to me that her symptoms are related to her work.’ However, I felt that there was an exacerbation of symptoms related to increased workload in 2013 and that she was suffering from the same condition that had developed prior to that.
I believe that the onset was not related to work related factors and that the effects of the exacerbation or aggravation, in 2013, would by now have resolved.
I note that the report from Dr Olivia Lee (page 103 of your file) states that Ms Cleland left her husband between 2011 and 2013. Since her return in 2013 the marital condition remained strained and this would have been more likely to have exacerbated the previously developed Fibromyalgia as any activity at work, as it was a continuing problem…
…As at the date of my examination of Ms Cleland in 2016, I believed that Ms Cleland continued to suffer from the same condition with which she was diagnosed in 2010 by Dr Eugene Ang (i.e. fibromyalgia).
I believe that any aggravation, based on increased stress at work in 2013, would have resolved and the marital stress would be just as likely, in fact probably more likely, to be the reason for any exacerbation and continuation of symptoms.
[emphasis added]
CONSIDERATION
Whether Ms Cleland continues to suffer from the accepted conditions
Ms Cleland’s accepted conditions are aggravation of myalgia and major depressive disorder. Therefore, the first matter for the Tribunal’s consideration is not whether Ms Cleland continues to suffer from myalgia per se, but whether she continues to suffer from an aggravation of her pre-existing myalgia condition, significantly contributed to by her employment with the Australian Customs and Border Protection Service. If the Tribunal finds Ms Cleland no longer continues to suffer from aggravation of myalgia, then in turn her major depressive disorder, as a condition secondary to aggravation of myalgia no longer survives as an accepted condition.
Dr Hanrahan, in his supplementary report, is clearly of the view that any work related aggravation of Ms Cleland’s myalgia has ceased and her marital stress is probably more likely to be the cause for any exacerbation and continuation of her symptoms. Dr Hanrahan’s oral evidence at hearing revealed nothing to disturb his reported opinion.
The Tribunal notes the following contemporaneous evidence, which it considers is consistent with Dr Hanrahan’s opinion:
·Ms Manfredi’s notes (R5, referred to at paragraphs 50 to 51 above), which show that by the beginning of 2016, Ms Cleland’s marriage was a dominant concern, so much so that she consulted with a psychotherapist in order to discuss her relationship in detail.
·Dr Varne’s notes (R3, referred to at paragraph 57 above) which recorded a number of personal stressors around April to November 2015, subsequent to Ms Cleland ceasing employment.
The Tribunal also notes with respect to this contemporaneous evidence that there is no mention of work related stress at these times, being from April 2015 to March 2016.
The Tribunal considers that based on this evidence, there is no evidence that a period of work stress in 2010 involving a restructure, which (at that time and for some time after) had the effect of aggravating Ms Cleland’s pre-existing myalgia condition, continues to do so. Put another way, any workplace connection to Ms Cleland’s myalgia condition has ceased. No evidence has been presented by Ms Cleland to dispute this.
As the Tribunal finds that:
·the relationship between the aggravation of Ms Cleland’s myalgia and her employment no longer exists; and
·any continuing symptoms relate to Ms Cleland’s pre-existing myalgia condition rather than being a work-related presentation of an aggravation of this condition,
it is not strictly necessary for the Tribunal to make a finding regarding whether Ms Cleland continues to suffer from major depressive disorder as a condition secondary to her aggravation of myalgia. For completeness, the available evidence indicates that Ms Cleland’s depressive symptoms are related to her pre-existing fibromyalgia condition (as her symptoms did not appear to cease when she ceased work in 2015) as well as her more recent sources of stress, which are personal in nature. As such, the Tribunal finds that Ms Cleland’s continued major depressive disorder no longer relates to her employment.
As the Tribunal is satisfied that Ms Cleland no longer continues to suffer from the accepted conditions:
· The Tribunal is not required to consider whether Ms Cleland’s accepted conditions currently cause impairments, whether those impairments are permanent and if so, to what degree they are permanent under the Guide; and
· The Tribunal finds that Ms Cleland is not entitled to receive compensation under section 24 of the Act.
Consequently, the Tribunal also finds that Ms Cleland is not entitled to compensation for non-economic loss under section 27 of the Act.
Section 14 determinations remain in force
The Tribunal notes that Comcare accepted liability under section 14 of the Act for Ms Cleland’s accepted conditions based on the evidence before it at the time. Comcare now relies on more recent evidence in support of its reviewable decision denying liability under sections 24 and 27 of the Act.
The Tribunal has made factual findings in this matter that effectively undercut the necessary findings of fact made in Comcare’s original determinations granting liability for the accepted conditions under section 14 of the Act. The Tribunal has done so in circumstances where it has been required to consider whether compensation should be payable to Ms Cleland under sections 24 and 27 of the Act and where Comcare’s section 14 determinations remain in force to the extent that they have not actually been reversed or been the subject of adverse review by the Tribunal. All of which, given the decision in Telstra Corporation Limited v Hannaford (2006) 151 FCR 253 is within its powers.
In other words, it is acceptable for the Tribunal to find that Ms Cleland no longer suffers from her accepted conditions, for the purposes of considering Comcare’s liability under sections 24 and 27 of the Act, without there ever having been any reconsideration of Comcare’s determinations of 24 March 2011 and 11 January 2016 accepting section 14 liability for Ms Cleland’s aggravation of myalgia and major depressive disorder conditions.
CONCLUSION
Ms Cleland seeks an order which would have the effect of entitling her permanent impairment compensation and non-economic loss in relation to her accepted conditions.
The Tribunal finds that while Ms Cleland continues to suffer from pre-existing myalgia, she no longer suffers from aggravation of this pre-existing condition, which is the condition for which Comcare accepted liability under section 14 of the Act. As such, there is no accepted primary condition to which her major depressive disorder can relate. The Tribunal finds in any event that Mr Cleland’s major depressive disorder continues, but is no longer related to her employment and hence no longer secondary to her aggravation of myalgia (the effects of which have now ceased).
In the circumstances, the Tribunal finds that Ms Cleland no longer continues to suffer from the accepted conditions. As such, the Tribunal has not considered whether each of Ms Cleland’s accepted conditions currently results in impairment, whether any such impairment is permanent and the degree of WPI applicable under the Guide.
Therefore, the Tribunal finds that Ms Cleland is not entitled to receive compensation under sections 24 and 27 of the Act.
DECISION
For the reasons outlined above, Comcare’s reviewable decision of 30 March 2016 that the Applicant was not entitled to compensation for permanent impairment under sections 24 and 27 of the Safety,Rehabilitation and Compensation Act 1988 (Cth) is affirmed.

I certify that the preceding 85 (eighty - five) paragraphs are a true copy of the reasons for the decision herein of Ms LM Gallagher, Member

........[Sgd]................................................................
Administrative Assistant
Dated: 31 July 2017

Date of hearing: 19 April 2017

Representative for the
Applicant: Mr D Cleland

Counsel for the Respondent:

Mr M Hawker

[2017] AATA 1179

31 July 2017

Key Legal Topics

Areas of Law

Employment Law

Statutory Interpretation

Legal Concepts

Causation

Remedies

Statutory Construction

Appeal

Date of hearing:	19 April 2017
Representative for the Applicant:	Mr D Cleland
Counsel for the Respondent:	Mr M Hawker