Colley and Comcare (Compensation)

[2019] AATA 166

Colley and Comcare (Compensation) [2019] AATA 166 (18 February 2019)

Division:GENERAL DIVISION

File Number:           2016/1811 & 2016/1812

Re:ShaneColley

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Senior Member Theodore Tavoularis

Date:18 February 2019

Place:Brisbane

The decision under review is affirmed.

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

Senior Member Theodore Tavoularis

CATCHWORDS

COMPENSATION – medical treatment – definition of injury – whether Applicant suffers from an aggravation of a physical or mental injury (other than a disease) – section 5A(1)(c) of the Safety Rehabilitation and Compensation Act 1988 (Cth) – whether Applicant suffers from sprain in other specified sites of hip and thigh – whether Applicant continues to suffer from such condition – whether Applicant’s condition arose out of, or in the course of, his employment with the Commonwealth – whether Applicant is entitled to compensation for his hip surgery – sections 16 and 19 of the Safety Rehabilitation and Compensation Act 1988 (Cth) – decision under review affirmed.

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 4, 5A, 6, 14, 16, 19

CASES

Alamos and Comcare [2014] AATA 629

Chowdhary and Comcare [1998] AATA 448
Comcare v Holt [2007] FCA 405
Durham and Comcare [2014] AATA 753
Re Jorgensen and Commonwealth of Australia (1990) 23 ALD 321
Popovic and Comcare [2000] AATA 246
Telstra Corporation Limited v Hannaford (2006) 151 FCR 253

SECONDARY MATERIALS  

Clinical Framework for the Delivery of Health Services

REASONS FOR DECISION

Senior Member Theodore Tavoularis

18 February 2019

INTRODUCTION

1. Mr Shane Colley (“the Applicant”) has suffered an injury to his right hip and thigh, for which he had claimed compensation from Comcare (“the Respondent”) under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the SRC Act”).

2. The asserted injury manifested, in claim terms, as follows:

   (a)On 14 March 2015, the Applicant lodged an incident report asserting an aggravation of a pre-existing injury “whilst maintaining [his] fitness and increasing his exercise routine.”;[1]

   (b)On 5 May 2015, the Applicant lodged a Claim for Workers’ Compensation for “right hip strain” that apparently was suffered on 5 November 2014. According to the Applicant, this injury was suffered “while completing exercise for treatment with my physiotherapist and exercise physiologist.”[2]

   [1] Exhibit 5, T Documents, T28, page 183.

   [2] Ibid, T17, pages 106-115.

   First claimed condition: sprain of other specified sites of hip and thigh (right).

3. The Respondent denied liability for the claimed “right hip strain” in a determination dated 12 June 2015.[3] The Respondent reconsidered this decision to deny liability of its own volition and by the resulting decision dated 28 July 2015, the initial determination denying liability dated 12 June 2015 was revoked and liability was accepted for a “right iliotibial band strain condition.”[4]

   [3] Ibid, T26, pages 161-169.

   [4] Ibid, T37, pages 246-247.

4. The Applicant then requested, via an email dated 2 October 2015, that the name of the sprain of other specified sites of the hip and thigh (right) condition be amended to “labral tear right hip”.[5]

   [5] Ibid, T74, page 442.

5. The Respondent then determined on 30 October 2015 that the Applicant had no present entitlement to compensation pursuant to ss 16 and 19 of the SRC Act for the sprain of other specified sites of hip and thigh (right) condition.[6]

   [6] Ibid, T88, pages 482-484.

6. The Applicant sought review of that determination by way of a letter from his then legal representatives dated 8 January 2016. The Respondent issued a reviewable decision on 4 March 2016 affirming its determination of 30 October 2015.

7. The Applicant now seeks review of the reviewable decision dated 4 March 2016. His application for review was lodged with this Tribunal on 4 April 2016. This application for review was assigned application number 2016/1812.

   Further compensation claimed for: hip surgery.

8. The Applicant underwent hip surgery on 19 November 2015 pursuant to the recommendation of Dr Douglas Maclean (hip, knee and shoulder surgeon) who was of the view that the Applicant “would likely benefit from operative intervention to address the tear and resect the CAM lesion.”[7]

   [7] Ibid, T78, pages 450-451.

9. The Respondent determined on 22 October 2015 to deny liability under s 16 of the SRC Act for the hip surgery. The Respondent, by way of reviewable decision dated 4 March 2016 affirmed its determination of 22 October 2015.

10. The Applicant now seeks review of the reviewable decision dated 4 March 2016. His application for review was lodged with this Tribunal on 4 April 2016. This application for review was assigned application number 2016/1811.

    ISSUES

11. In light of the above, the Tribunal must determine the following issues:

    Issue A

    (a)Does the Applicant continue to suffer from the sprain of other specified sites of hip and thigh (right) which condition is said to constitute the “injury” pursuant to s 16 of the Act?

    (b)If the answer to (a) is “yes”, the next two questions become:

    (i)Does his employment with the Commonwealth continue to contribute to these conditions, to the requisite degree?; and

    (ii)Whether, during the period 30 October 2015 to 23 December 2016, the Applicant:

    (A) has a need for medical treatment; or

    (B) is incapacitated for work as a result of the sprain of other specified sites of hip and thigh (right) condition?

    Issue B

    (a)Whether the Applicant is entitled to compensation under s 16 of the SRC Act for the abovementioned hip surgery on 19 November 2015?

    ISSUE A: LIABILITY UNDER SECTION 16 OF THE ACT:

    Does the Applicant continue to suffer from the sprain of other specified sites of hip and thigh (right) which condition is said to constitute the ‘injury’ pursuant to s 16 of the Act?

12. In terms of a diagnosis, the contest of medical opinion primarily devolved to three medical experts. The Applicant sought to rely on the opinions of the General Practitioner, Dr Adie and the Orthopaedic Surgeon, Dr Douglas Maclean.

13. Dr Adie opined on 26 September 2015, that “Mr Colley continues to suffer from a R hip sprain. On 1/5/15 he brought this to my attention saying that in 10/2014 when he was at the physio having work on back noticed pain in R hip region. I initially thought it was a R iliotibial band sprain. MRI performed 14/9/15…shows a small labral tear. Mr Colley is having an opinion regarding this from Dr Douglas Maclean on 19/10/15. I understand that Dr Georgius thinks this pain is radiating from Mr Colley’s thoracic spine…”[8]

    [8] Ibid, T68, pages 421-424.

14. Dr Douglas Maclean opined on 19 October 2015 that the Applicant had “pain in the hip consistent with labral tear and impingement. He would likely benefit from operative intervention to address the tear and reset the CAM lesion.”[9]

    [9] Ibid, T78, pages 450-451.

15. The Respondent sought to rely on the opinion of Associate Professor Peter Steadman, Orthopaedic Surgeon. In his report of 6 October 2016, Associate Professor Steadman opined that the Applicant was suffering from “…an aggravation of pathology of the labrum of the right hip.”[10]

    [10] Exhibit 3, Report of Associate Professor Dr Peter Steadman, dated 6 October 2016, page 8, paragraph 3.2(ii).

16. The Applicant contends that the sprain of other specified sites of hip and thigh (right) condition was caused while he was undertaking certain remedial exercises during treatment with the exercise physiologist, Ms Michelle Baker on 5 November 2014.

17. In my view, the Respondent rightly contends that, on the basis of the diagnosis provided by Associate Professor Steadman, the Applicant’s condition falls to be considered under s 5A(1)(c) of the SRC Act.

18. The provision in the SRC Act dealing with the aggravation of pre-existing physical injuries is s 5A(1)(c), which relevantly provides that:

    “‘Injury’ means:

    …

    (c)An aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;

    …”

19. Section 6 of the SRC Act also relevantly provides:

    “(1) Without limiting the circumstances in which an injury to an employee may be treated as having arisen out of, or in the course of his or her employment, an injury shall, for the purposes of this Act, be treated as having so arisen if it was sustained:

    …

    (f) while the employee was at a place for the purpose of:

    …

    (ii) receiving medical treatment for an injury

    …”

20. There was some suggestion in the Applicant’s oral evidence that his asserted injury necessarily arose out of or in the course of his employment whether or not he sustained the claimed aggravation injury when consulting with Ms Baker on 5 November 2014 or when exercising at home on his own to maintain his fitness levels in April/May 2015.

21. Any such contention is misplaced and incorrect. There is no provision in s 6(f) of the SRC Act stipulating that an asserted injury arising from a home or private fitness regime to maintain fitness constitutes an ‘injury sustained in the course of employment’ as referred to in the chapeau of s 6 of that Act.

22. Were I to be satisfied that the claimed aggravation injury was caused by treatment administered by Ms Baker, this will satisfy the requirement for the injury to have arisen out of or in the course of the Applicant’s employment for the purposes of s 6 of the SRC Act. The contrary view propounded by the Respondent is that liability for compensation pursuant to ss 16 and 19 of the SRC Act ought be denied, because the Applicant does not suffer from the aggravation and that it (the aggravation-based injury) did not arise out of or in the course of the Applicant’s employment.

23. Pursuant to s 14 of the SRC Act, It is open to this Tribunal to make alternate findings, to those made by the Respondent[11] in its reconsideration of its own motion determination, dated 28 July 2015, which accepted liability for “iliotibial band sprain/sprain of other specified sites of hip and thigh (right)”. Having regard to the totality of the evidence, I am hard-pressed to be satisfied, on the balance of probabilities, that the Applicant did suffer an injury on 5 November 2014 or 19 November 2014.

    [11] Telstra Corporation Limited v Hannaford (2006) 151 FCR 253.

24. The Respondent, in my view, correctly, identified two critical pieces of evidence that fatally undermine the Applicant’s case. The first piece of evidence comprises the oral evidence provided by the exercise physiologist, Ms Michelle Baker, at the hearing before me. Ms Baker was asked to comment on the three depictions comprising Exhibit 7 in these proceedings. The first two depictions are of methods of stretching and the third is a depiction of a piece of yoga equipment.

25. The Applicant’s principle contention is that, pursuant to a direction from Ms Baker, he performed a stretching exercise or manoeuvre on the depicted piece of yoga equipment and, according to him, this is how his injury was sustained. The Applicant further contended – but did so equivocally - that he sustained further injury when, at the further request of Ms Baker, he completed the two stretches depicted in Exhibit 7.[12] He was not absolutely clear in his recollection that these particular stretches caused or contributed to the aggravation of his injury. When presented in cross-examination with the specific depictions of the exercises he asserts caused or contributed to his injury, the best he could say was “I believe it was that one.”

    [12] Specifically, the exercises depicted in Exhibit 7 on the page bearing the words “quadratus lumborum stretch supine”.

26. In her oral evidence, Ms Baker was clear and adamant that no patient of hers would ever – pursuant to a direction from her – perform a stretch on the depicted item of yoga equipment in Exhibit 7. She was similarly clear and adamant that no patient of hers would ever – pursuant to a direction from her – perform either or both of the alternate stretches depicted in the specific page of Exhibit 7 bearing the words “quadratus lumborum stretch supine”. Critically, Ms Baker said that neither of these depicted stretches could be performed on the depicted item of yoga equipment in Exhibit 7.

27. It seems clear to me that neither of the stretches asserted by the Applicant to have caused his injury were, in any way, remedial exercises or manoeuvres that Ms Baker would have permitted him to do, or recommended to him, or that she would have otherwise benignly supervised him doing. According to the Respondent, were I to prefer the evidence of Ms Baker over the mere self-reporting of the Applicant, such a preference would be fatal to the case propounded by the Applicant. I prefer the evidence of Ms Baker supported, as it is, by thorough and excellently kept clinical notes.

28. The second piece of critical evidence that fatally compromises the claim of the Applicant can be found in the evidence of Associate Professor Steadman. He was of the opinion that symptoms associated with a labral hip tear are most typically experienced in the groin. According to Associate Professor Steadman, those symptoms can also be atypically experienced in the knee. Tellingly, the Applicant had no recollection of experiencing pain in the region of his groin and similarly denied ever experiencing pain in his knee. His evidence was clear: the primary source of pain resulting from his asserted injury was “…always in the hip.”

29. I concur with the Respondent’s contention that both of these pieces of evidence combine to fatally undermine the Applicant’s claim and that they are, in and of themselves, sufficient for the Tribunal to immediately affirm the decision under review without further consideration of the evidence.

30. Be that as it may, I will, out of an abundance of caution and for the sake of completeness, review other aspects of the evidence which cast the Applicant’s claim in a similar light.

31. It is extremely difficult to ignore Ms Baker’s evidence in chief when she steadfastly and rigidly maintained that the Applicant never reported any hip pain to her, despite the Applicant’s evidence to that effect. While her notes may contain a passing reference to “groin pain”, little can be made of that in circumstances where it is difficult to cavil with (1) the fact that she took notes of her treatment sessions with the Applicant, (2) her notes are of a more than satisfactory standard and can be relied upon to complement and endorse her oral evidence, and (3) whenever there was a mention of pain by the Applicant, it is clear from Ms Baker’s notes that she confirmed and reconfirmed that the source of that reported pain derived from the region of the Applicant’s thoracic spine.

32. Ms Baker presented as a competent and capable practitioner in the prime of her career. She was well-prepared to give her evidence, obviously having reviewed her notes and her other previous written material prepared during the course of this matter. I have no reason to prefer the Applicant’s self-reporting over the clinically expert evidence of Ms Baker, supported and augmented as it is by her detailed, contemporaneous and more than satisfactory clinical notes.

33. Likewise, I prefer the evidence of Associate Professor Steadman to that of the Applicant. Associate Professor Steadman’s examinations, analyses and findings are predicated on a theoretical acceptance of the Applicant’s version of how he came to sustain the injury now propounded. When the alternative version was put to Associate Professor Steadman, he thought it was quite improbable that the aggravation injury occurred in November 2014. Again, this evidence leads to a finding that, on the balance of probabilities, the Applicant did not suffer any aggravation injury in November 2014.

34. There is nothing else in the form of contemporaneous evidence in the material to support the Applicant’s contention that he experienced pain – be it in the groin or the hip – during the period November 2014 and April 2015. On the contrary, the contemporaneous medical evidence from this period points to the Applicant actually improving. For example, on 13 November 2014, the Applicant attended a consultation with Dr Scott Masters who noted these things:

    ‘Improving

    Has to see occphyc next week for insurance

    6 mths now since injury

    Asking re injr

    Discussed injury again, disfunction CV jts right around T78’[13]

    [13] Exhibit 13, Clinical notes, Dr Scott Masters dated 13 November 2014.

35. Similarly, at a subsequent consultation with Dr Masters on 11 December 2014 it was noted that the Applicant was ‘improving well.’[14] As pointed out by the Respondent’s representative, there is a telling reference in Dr Masters’ clinical notes to ‘New gym program from Michelle ex physiologist.’ This would have been an ideal opportunity for the Applicant to make some sort of comment to Dr Masters about some level of aggravation or flare up of his symptoms as a result of the ‘New gym program from Michelle.’ Yet the Applicant said nothing of the sort to Dr Masters. As also noted by the Respondent’s representative, this absence of any contemporaneous reporting of pain from an exercise session in November 2014 – especially where Dr Masters’ notes makes express reference to Ms Baker’s ‘New gym program’ – makes it very difficult for this Tribunal to be satisfied, on the balance of probabilities, that the asserted injury or aggravation of any pre-existing injury, even occurred on 5 November 2014.

    [14] Exhibit 14, Clinical notes: Dr Scott Masters dated 14 December 2014.

36. On 10 December 2014, the Applicant consulted with the physiotherapist, Ms Miriam Dillon as well as Ms Baker. Ms Dillon noted these things:

    ‘Nil pain this week…

    Hoping to complete fitness test on the 18^th of Jan

    …

    Observation: Nil muscle spasm or muscle tightness

    Good ROM

    …’[15]

    [15] Exhibit 8, Client History Report for Shane Colley, page 14.

37. Ms Baker, also on 10 December 2014, similarly noted: ‘feeling good, back and gym are going well.’ There is no report of any pain being experienced by the Applicant. What makes this evidence compelling is that the Applicant has failed to report any experience or sensation of pain to the very practitioner or clinic whom he now alleges caused his asserted condition. I have previously commented on the accuracy and reliability of Ms Baker’s clinical notes. It is thus very difficult for the Tribunal to accept that the Applicant did not tell Ms Baker (or Ms Dillon) about any pain from an aggravation to an existing injury apparently sustained in November 2014, just over a month prior to the date he consulted both Ms Baker and Ms Dillon.

38. When the Applicant saw Dr Masters on 11 December 2014, he was asked to complete a ‘Brief Pain Inventory’ sheet.[16] When he completed this sheet, the Applicant noted that he was experiencing pain only on the right side of his lower back. There is no indicated reference to any pain emanating from his hip or groin or knee. Again, one would have thought that if he genuinely sustained an injury in early November 2014 which he now says was then causing him pain in those other regions, then he would have surely noted this pain inventory sheet to indicate the asserted pain in the specific regions of his hip, groin and knee. There is no such notation by the Applicant on this pain inventory sheet.

    [16] See Exhibit 10.

39. The Applicant initially sought to rely on the report of the exercise physiologist, Ms Kate Tronc, to support his contention of contemporaneous reporting of his symptoms. Ms Tronc’s report is dated 28 January 2015[17] and the parts of it relied upon by the Applicant to support his contention of contemporaneous reporting are:

    ‘Shane’s pain is a result of decreased hip strength resulting in tight piriformis and lumbar spine paraspinals.[18]

    [17] See Exhibit 6, Report of Ms Kate Tronc, Exercise Physiologist, dated 28 January 2015.

    [18] Ibid, page.

1. Three things can be said about the Applicant’s initial reliance on Ms Tronc’s report. First, while it contains a reference to ‘decreased hip strength’, there is absolutely no reference in any other part of this report that any trouble the Applicant may have been experiencing in the region of his hip was a result of exercises the Applicant did in early November 2014. Second, instead of referring to the Applicant’s version of why he says he had issues with his hip (i.e. the exercise regime he performed on 5 November 2014), Ms Tronc thinks his asserted pain as a result of decreased right hip strength ‘…may have resulted from a period of inactivity when Shane was experiencing anterior chest pain related to his initial injury and compensatory postures to try to alleviate the pain.’[19] Third, Associate Professor Steadman has clearly opined that the symptomology of decreased hip strength reported to Ms Tronc actually relates to the Applicant’s back and is not indicative of any labral tear.

   [19] Ibid.

2. The Consultant Occupational Physician, Dr Marcus Navin, examined the Applicant on 21 November 2014. In terms of the Applicant’s ‘Current Status’, Dr Navin noted these things:

   ‘His current symptoms are specifically pain localised on a persistent basis in his lower right back than in the rib line. He reports that this pain has been at a level of three on a constant basis. It will rise to a level of six and will last for half a day when exacerbated by any activity. He states that it is affected by aggravation of pain from the physiotherapy which may last for 24 hours or more. As noted above, the injections provided to him by Dr Scott Masters have been of some assistance

   An MRI of his thoracic spine on 25 November 2014 has demonstrated no abnormality whatsoever of his spine and a bone scan has also demonstrated no significant structural physical abnormality.’[20]

   [20]Exhibit 5, T-Documents (Part 2 of 3), PT 11, Report of Dr M Navin dated 28 November 2014, page 81.

3. Notably, Dr Navin’s summary of the Applicant’s current status contains nothing about the Applicant reporting any pain in either his groin, knee or hip. Likewise, there is no reference to any reporting from the Applicant about any injury arising from his performance of an exercise regime only a few weeks prior, on 5 November 2014.

4. Professor Michael O’Rourke is a general surgeon who examined the Applicant on 8 December 2014 and whose report also bears that date.[21] Professor O’Rourke’s report was primarily concerned with the Applicant’s previously asserted injury involving him lifting a heavy bag onto a carousel with a twisting movement in April 2014. Be that as it may, it must be borne in mind that Professor O’Rourke reviewed the Applicant on 8 December 2014, just over a month after the asserted aggravated injury arising from the exercise regime he performed on 5 November 2014. Yet Professor O’Rourke’s report contains nothing by way of any report or complaint by the Applicant about any pain in the region of his groin, knee or hip resulting from the asserted incident on 5 November 2014. Indeed, there is absolutely no reference to the asserted incident on 5 November 2014 in Professor O’Rourke’s report.

   [21] Ibid, Report of Professor Michael O’Rourke dated 8 December 2014, page 86.

5. The first time the Applicant mentioned anything about pain in the region of his groin/knee/hip occurs in April 2015 when he mentioned something along these lines to an Initial Needs Assessor. He did not report anything about his symptoms (arising from the asserted injury in early November 2014) until May 2015 when he first reports any symptomology about his hip to Dr Adie. However, his reporting of those symptoms is inconsistent with his assertion that he sustained the aggravation injury on 5 November 2014. When the Applicant initially reports this symptomology to Dr Adie, he refers his reported hip pain back to October 2014 and not to 5 November 2014 which is the date he now says the injury occurred. Importantly, the Initial Needs Assessor report notes, that on 13 April 2015:

   ‘…Mr Colley perceives his level of function of his right hip and lower limbs to be at 41% of his maximal function. These findings are contrasted to the activities Mr Colley is actually completing and the recent certification from Dr Adie that the concerns and restrictions relating to Mr Colley’s right hip would now be resolved.'[22]

   [22] Ibid, T Documents, Part 2 of 3, PT 28, Initial Needs Assessor report, page 203.

6. Even a cursory review of the Applicant’s conduct in late 2014 and early 2015 does not lend any measure of support to a finding that he was suffering from a condition arising from an incident that occurred on 5 November 2014. One would have thought that if an exercise physiologist and her stipulated regime of exercise had resulted in the injury asserted by the Applicant, he would have ceased seeing her very shortly thereafter. Yet he continued to attend sessions with the very same exercise physiologist – Ms Baker – who he says caused his asserted injury. The inherent lack of credibility impacting on the Applicant’s evidence is to be found in the reality that there is nothing to suggest that he either told Ms Baker of his symptoms or that he otherwise blamed for those asserted symptoms.

7. There is no contemporaneous reporting of any symptoms arising from any incident occurring on 5 November 2014 by the Applicant to any medical practitioner or other health professional. Indeed, the Applicant was certified fit to return to work in January 2015, something that he confirmed in his own evidence at the hearing. Dr Adie confirmed that the Applicant was, in January 2015, fit to return to the full range of his work duties which the Applicant himself described as ‘…not desk duties, they are very active, it requires somebody to be fit and healthy, you’re tackling other human beings, grown men, you need to be able to perform appropriately and not be impaired in any way, particularly in relation to your leg.’

8. The Respondent has referred to certain objective evidence of a labral tear at the anterior labral cartilaginous junction of the Applicant’s right hip. This evidence derives from an MRI conducted on 14 September 2015, some 10 months after 5 November 2014, which is the date of the alleged injury. The occupational physician, Dr Blair Christian examined the Applicant on 17 June 2015 and noted these things in his report dated 29 June 2015[23]:

   [23] Ibid, T Documents, T33, pages 224-233.

   ‘…

   Symptoms

   …there is pain felt at the right upper outer part of the hip, with this coming on typically after 15 to 30 minutes of walking. There is no clear report of radiating pain. There is no report of altered sensation. There is no report of weakness.

   …

   Medical History

   Mr Colley reports being otherwise well. He says two to three months ago when he had worsening of his back and hip pains, there was also a feeling of neck pain and stiffness. That has since been completely resolved.

   …

   Discussion

   …It does seem likely that there has been a soft tissue injury at the right lower thoracic or upper lumbar spine with referred pain to the right lateral rib wall and right hip. I believe that on balance that there has been no separate injury to the right chest wall nor right hip. I do not believe that these symptoms are radicular in origin but are rather somatic referred pains.

   …

   oDue to the time elapsed since the initial acute right hip injury, would you expect the injury to be resolved at this point?

   I do not believe that there has been a separate right hip injury. From Mr Colley’s account this lateral hip pain was first noted when starting that supervised physical therapy program in late 2014, and has been an intermittent issue since then. I believe this likely does represent a somatic referred pain from the thoracic/lumbar spine. I certainly did not find any evidence of a separate hip injury such as a labrum tear nor trochanteric bursitis.[24]

   [my underlining]

   [24] Ibid, pages 227, 228, 230.

9. I am of the view that Dr Christian’s findings are strongly suggestive that even by June 2015, there was minimal or no evidence of any labral tear.

10. Dr Gregory Bookless is an orthopaedic surgeon who has prepared two reports in this matter, respectively dated 17 August 2015 and 22 September 2015. At the hearing, the Applicant strongly disputed the findings and evidence of Dr Bookless, and, in those circumstances, the Respondent submitted that it was agreeable to the Tribunal placing limited weight on the evidence of Dr Bookless. Be that as it may, the salient features of the evidence of Dr Bookless are as follows:

    In his first report of 17 August 2015, Dr Bookless opined:

    ·The Applicant may have suffered a musculoligamentous injury but that this condition fully resolved after he obtained a full clearance to resume his normal work duties on 31 January 2015;

    ·The Applicant suffered from a new thoracolumbiar back pain and that there was no relationship between that condition and his employment.

    In his supplementary report of 22 September 2015, Dr Bookless opined:

    ·‘at the time of the examination on 5 August 2015 there was no indication on objective measures during his physical examination that Mr Colley had a sprain or soft tissue injury affecting his right hip or thigh.’  

    [my underlining]

11. The Respondent concedes that the Applicant has consistently disputed the findings of Dr Bookless. Be that as it may, the Tribunal takes comfort from the abovementioned findings of Dr Blair Christian, particularly with regard to Dr Christian’s finding that he did ‘not believe that there has been a separate right hip injury…I did not find any evidence of a separate hip injury such as a labrum tear nor trochanteric bursitis.’

12. The labral tear propounded at the hearing by the Applicant as some kind of causative or indicative factor of right hip symptomology is, to my mind, squarely addressed by the evidence of Associate Professor Steadman. Associate Professor Steadman thought that any range of physical circumstances could have caused a labral tear, especially in circumstances where the Applicant has a degenerative hip condition. Associate Professor Steadman’s supplementary report of 10 November 2016 says this:

    ‘As is noticed on his first x-ray, he had bilateral acetabular osteophytes with thinning of the superior acetabular cartilage in the area where the labral tear was present. Hence the correlation is confirmed in this specific individual example as being of a degenerative origin.

    Mostly the tears are degenerative. That is the collagen in the labrum fails and leads to the development of a detachment. The femoral neck pinches the tissue between the edge of the acetabular and the bony femoral neck. This can lead to a detachment or splitting of the labrum…’[25]

    [25] Exhibit 4, Supplementary Report of Associate Professor Steadman, dated 10 November 2016, page 4.

13. Put simply, the evidence of Associate Professor Steadman is that a labral tear is usually the result of an underlying degenerative condition and he said in his evidence that such a tear could occur from even a relatively minor and innocuous event.

14. The Respondent has, validly, to my mind, also noted that the Applicant has not been consistent with his reporting of how the injury was sustained. I think that contention is fairly made when one has regard to what the Applicant told treating medical officers during the period after he says he suffered the injury (i.e. 5 November 2014). First, there is the version noted in the Initial Rehabilitation Assessment Report that is dated 13 April 2015.[26] There, the Applicant’s asserted pain in his right hip is recorded as follows:

    ‘INJURY/MEDICAL HISTORY

    Mr Colley reported experiencing a sharp pain in his right hip and subsequent aggravation of mid to lower back pain of 14/03/2015. Mr Colley reported that he had experienced the injury and aggravation when running and completing his self-managed exercised to maintain his fitness prior to his next patrol cycle due in April 2015. Mr Colley described that he experienced shooting pain sensations in his right hip and groin. Mr Colley advised that he may experience these symptoms when he walks.

    Mr Colley was unable to clearly describe a separation of his injury symptoms or difference in injury onset between his lower back and right hip and groin pain.[27]

    [my underlining and emphasis]

    [26] Exhibit 5, T-Documents, Part 2 of 3, PT 28, pages 199-207.

    [27] Ibid, page 200.

15. Second, in a consultation note made on 21 April 2015,[28] Dr Adie noted the following during a consultation with the Applicant on that day:

    ‘12 months ago – when did initial injury when lifting bag also had mild R lateral abdominal pain.

    since – mild pain, ever present, worse with walking. Settled in 8 months.

    1 month ago – pain flared up when started jogging and running.’

    [my underlining]

    [28] See Exhibit 11 – Various consultation notes.

16. Third, on 25 May 2015, Dr Adie noted the following[29]:

    ‘On the next visit 1/5/15 when he came back to discuss the MRI, Mr Colley advised me that on 10/2014 when at the physio having work on his back he noticed pain in his right hip region. Since then he has had ongoing pain when standing on R foot and lifting L foot up. It is also more painful when walking.[30]

    [29] See Report of Dr John Adie dated 25 May 2015, Exhibit 5, T-Documents, Part 2 of 3, T 23, pages 147-148.

    [30] Ibid, page 147.

17. Fourth, Associate Professor Steadman, in his supplementary report of 10 November 2016[31] noted:

    ‘His hip became problematic reportedly in November 2014. However, I note that around 19.11.2014 he attended the musculoskeletal exercise physiologist Michelle Baker via his motorbike with the reported increase in pain. Again, though it wasn’t specifically reported in the groin. Her notes are very meticulous regarding the types of exercises he performed with no notation regarding the hip and no issues appear to arise. Motorbike riding on a road bike with flexion over the hips could cause impingement and labral tearing in a degenerative picture such that he as.[32]

    [31] Exhibit 4, Supplementary Report of Associate Professor Steadman, dated 10 November 2016.

    [32] Ibid, page 3.

18. The inconsistent nature of the Applicant’s reporting of how the injury was sustained gives rise to an inherent unreliability in his evidence around his contention that he suffered some kind of aggravated injury while completing certain exercise treatments under the supervision of Ms Baker. An alternate and more credible likelihood is this: even if the Tribunal were to accept that the Applicant did suffer the claimed aggravation injury, it was more likely to have been caused by his exercising at home in March or April 2015.

19. Such a finding sits much more squarely with the contemporaneous medical reporting. As well, it is clear from the medical evidence that the mechanical effort of walking/jogging can give rise to the symptomology asserted by the Applicant. One of the many fundamental problems the Applicant has with his evidence in this matter involves his almost total reliance on his own self-reporting to support his contentions. He has no contemporaneous notes or records of having suffered any injury on 5 November 2014. On the contrary, whatever written record there is contemporaneous with 5 November 2014 is suggestive of him having suffered no injury at all.

20. Two further points to note are these: (1) in his evidence in cross-examination, the Applicant accepted the proposition that all of the notes and clinical records kept by the doctors were accurate, and (2) in his evidence in chief, he sought to inadequately augment significant gaps in his evidence by using phrases such as ‘I don’t have the greatest memory’ and ‘to the best of my knowledge, which isn’t that great’.

21. There is a ready acceptance from the Respondent that the Applicant suffered a ‘labral tear’ in his right hip as confirmed by the MRI on 14 September 2015.[33] I am of the view that the Respondent is not liable to pay compensation in respect of the labral tear in his right hip[34] under either ss 16 or 19 of the SRC Act because after my abovementioned consideration of the totality of the evidence, I am of the view that the Applicant does not suffer from an ‘aggravation of a physical or mental injury (other than a disease)’ for the purposes of s 5A(1)(c) of the SRC Act.

    [33] Exhibit 1, Respondent’s Amended SFIC, page 11, paragraph [4.6]

    [34] Variously described as ‘iliotibial band sprain of other specified sites of hip and thigh (right)’ or ‘aggravation of an underlying degenerative pathology of the labrum, resulting in a labral tear of the right hip’.

22. The evidence is, to my mind, clearly supportive of a finding that, on the balance of probabilities, the claimed injury did not arise out of or in the course of, the Applicant’s employment with the Commonwealth. Having regard to:

    (a)The insufficiency of medical evidence to support the Applicant’s claim that he suffered a ‘labral tear’ in his right hip during, or as a result of, any stretches or exercises while participating in exercise physiology and/or physiotherapy sessions between 28 August 2014 and 24 December 2014;

    (b)The evidence of Ms Baker and the remaining medical experts (and their respective records) demonstrate, on the balance of probabilities, that the Applicant did not report any hip or groin pain during the exercise physiology session on 5 November 2014, or any other exercise physiology or physiotherapy sessions between 28 August 2014 and 24 December 2014;

    (c)The Applicant was cleared for pre-injury duties on 30 January 2015;

    (d)The Applicant first sought treatment for his hip pain on 21 August 2015 from his local medical officer, Dr Adie. This is confirmed in his claim for compensation;

    (e)The Applicant only reported to Dr Adie that he had been experiencing hip pain since his physiotherapy treatment in October 2014 during a consultation (with Dr Adie) on 1 May 2015. This is clear from the abovementioned medical reports appearing in the T Document material, the summonsed medical records, and, of course, the abovementioned report of Dr Adie dated 25 May 2015;

    (f)Associate Professor Steadman’s opinion that there is a realistic scenario that the Applicant could have suffered a labral tear as a result of the reported exercise but that the labral tear could also have been caused by other activities of the Applicant such as riding his motorcycle and getting in and out of cars. To be clear, Associate Professor Steadman’s opinion was that the degenerative state of the Applicant’s pathology/condition made it quite feasible that such a labral tear could have been caused by a range of other factors.

23. I therefore determine that the Applicant is not entitled to compensation under ss 16 and 19 of the SRC Act for the ‘sprain of the other specified sites of the hip and thigh (right) condition’ during the period from 30 October 2015 to 23 December 2016.

    ISSUE B: FURTHER COMPENSATION CLAIMED FOR HIP SURGERY

24. Before assessing the Respondent’s liability pursuant to s 16 of the Act, it is important to define the scope of the Respondent’s liability under that provision.

    The Legislative Framework

25. The Respondent’s liability to compensate the Applicant for any of his treatments, specifically the claimed hip surgery, is determined in accordance with s 16(1) of the Act, which reads:

    Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.

26. Section 4 of the Act, in turn, defines “medical treatment” as:

    …

    (b)therapeutic treatment obtained at the direction of a legally qualified medical practitioner; or

    …

    (d)therapeutic treatment by, or under the supervision of, a physiotherapist, osteopath, masseur or chiropractor registered under the law of a State or Territory providing for the registration of physiotherapists, osteopaths, masseurs or chiropractors, as the case may be; or

    …

    (i)any other form of treatment that is prescribed for the purposes of this definition.

1. “Therapeutic treatment”, meanwhile, “includes an examination, test or analysis done for the purpose of diagnosing, or treatment given for the purpose of alleviating, an injury”.

2. In considering these definitions, it becomes apparent that s 16 of the Act imposes a test that has both subjective and objective elements: the Tribunal must determine whether the treatment is objectively reasonable given the subjective circumstances of an applicant’s injury. I note that this subjective element is restricted to the state of the Applicant’s injury.[35]

   [35] Re Jorgensen and Commonwealth of Australia (1990) 23 ALD 321, 325 (Gray J).

3. Due to the very nature of the test, the list of factors the Tribunal may take into account in making this assessment varies. However, in Alamos and Comcare,[36] Deputy President Constance considered the following factors as a helpful, non-exhaustive list:

   ·the benefit of the treatment to the injured worker;

   ·the long-term effects of the treatment;

   ·whether the treatment is likely to cure the injury or significantly reduce its effects;

   ·whether the treatment maintains the status quo;

   ·the cost of ongoing treatment.[37]

   [36] [2014] AATA 629.

   [37] Alamos and Comcare [2014] AATA 629, [24] (DP Constance).

4. In a similar vein, Mansfield J in Comcare v Holt gave examples of some circumstances where the treatment would be unreasonable, which included:[38]

   ·“where treatment is unreasonable because its anticipated therapeutic benefit does not justify the expense involved in the circumstances”;

   · “where proposed treatment, although of therapeutic benefit, is unreasonable having regard to the extent of the anticipated benefit of the cost involved, even if no similar treatment had previously been undertaken”; and

   ·“where treatment like the proposed treatment which in the past has had some therapeutic benefit may no longer be reasonable because the extent of the therapeutic benefit no longer justifies the cost in the light of past experience”.

   [38] Comcare v Holt [2007] FCA 405, [25]-[26].

5. This long-term perspective is particularly important when one considers the potential long-term dependency of applicants upon treatments that were only ever meant to be temporary, as the Tribunal noted in Popovic and Comcare.[39] Indeed,

   While provision of temporary relief from pain through physiotherapy will in many circumstances qualify as medical treatment which it is reasonable for an employee to obtain, there will in some cases come a point where it is no longer reasonable unless it is part of a plan for permanent improvement in the health of the employee[40]

   [39] [2000] AATA 264, [28]-[29].

   [40] Chowdhary and Comcare [1998] AATA 448, [53].

6. In making these assessments, it is often of great assistance to the Tribunal to make reference to the Clinical Framework for the Delivery of Health Services (“the Clinical Framework”).[41] Although this document was neither compiled by the Commonwealth Government, nor representative of Commonwealth policy, it provides useful guiding principles for the delivery of health services.

   [41] See e.g. Alamos and Comcare [2014] AATA 629, [32]-[33]; and Durham and Comcare [2014] AATA 753 (SM Ettinger), [56]-[58].

7. The Clinical Framework lists the guiding principles as:

   1Measure and demonstrate the effectiveness of treatment

   2Adopt a biopsychosocial approach

   3Empower the injured person to manage their injury

   4Implement goals focused on optimising function, participation and return to work

   5Base treatments on the best available research evidence.[42]

   [42] Clinical Framework, page 2.

8. Particularly relevant in considerations such as this is point 3, “Empower the injured person to manage their injury”. The Clinical Framework later elaborates on this point:

   The key measure of treatment effectiveness is the ability of the injured person to manage their condition as independently as possible and participate in activities at home, in the community and at work. Independence does not mean being symptom-free, but rather living a functional and productive life while self-managing symptoms if they arise. Failure to empower an injured person to become independent may result in dependency on treatment, which reinforces illness behaviour and can lead to persistent pain or long-term disability.[43]

   [43] Ibid, page 12.

9. Consistent with its duty as a model litigant, the Respondent notes the following comment from Associate Professor Steadman in his report of 6 October 2016[44]:

   3.4. Does the Applicant suffer from any underlying, pre-existing or constitutional condition relevant to the claimed condition? If so, what is the nature of this condition and why did it arise?

   He had evidence of pre-existing pathology in the hip. It may be reasonable that this had been injured by way of the mechanism that was described, considering the pre-existing pathology would constitute some form of aggravation.

   [my underlining]

   [44] Exhibit 3, Report of Associate Professor Steadman, Consultant Orthopaedic Surgeon, page 8, paragraph [3.4].

10. However, this comment can be tempered by the following:

    (a)The equivocal, and not definitive, way in which it is made. Having regard to the totality of Associate Professor Steadman’s evidence, this particular comment is equivocal because of his use of the word ‘may’ and because of the range of other causative factors he says could have given rise to the claimed injury;

    (b)My finding that the Respondent is not liable to pay compensation in respect of the claimed injury under ss 16 and 19 of the SRC Act because of my finding that that he does not suffer from ‘an aggravation of a physical or mental injury (other than a disease)’ as defined by s 5A(1)(c) of the SRC Act.

11. On the basis of my finding as to the absence of liability to compensate for the claimed injury pursuant to ss 16 and 19 of the SRC Act, I find that the Respondent is not liable to compensate the Applicant under s 16 of the SRC Act for his claimed treatment of ‘operative intervention to address the labral tear and resect the CAM lesion’ as that treatment was not administered with respect to an ‘injury’ that arose ‘…out of or in the course of his employment’ with the Commonwealth.

    CONCLUSION

12. I refer back to the stated issues necessary to be addressed in this matter and find as follows:

    Issue A

    (a)Does the Applicant continue to suffer from the sprain of other specified sites of hip and thigh (right) which condition is said to constitute the “injury” pursuant to s 16 of the Act? Answer: No

    (b)If the answer to (a) is “yes”, the next two questions become:

    (i)Does his employment with the Commonwealth continue to contribute to these conditions, to the requisite degree?; Unnecessary to answer; and

    (ii)Whether, during the period 30 October 2015 to 23 December 2016, the Applicant:

    (A) has a need for medical treatment; Unnecessary to answer; or

    (B) is incapacitated for work as a result of the sprain of other specified sites of hip and thigh (right) condition? Unnecessary to answer

    Issue B

    (a)Whether the Applicant is entitled to compensation under s 16 of the SRC Act for the abovementioned hip surgery on 19 November 2015? Answer: No

    DECISION

13. In accordance with s 43(1) of the Administrative Appeals Tribunal Act 1975 (Cth), I affirm the reviewable decisions dated 4 March 2016.

I certify that the preceding 78 (seventy-eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis

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

Associate

Dated: 18 February 2019

Date of hearing:    31 January 2018

Applicant:   In person

Counsel for Respondent:               Ms Kate Slack

Solicitors for the Respondent:      Sparke Helmore