Colusso and Comcare (Compensation)

Colusso and Comcare (Compensation) [2022] AATA 2464 (19 July 2022)
AppID:  Colusso and Comcare
MatterType:   Compensation
Division:GENERAL DIVISION
File Number:          2020/4959
Re:Ms Antonella COLUSSO
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Senior Member M Griffin QC
Date:19 July 2022
Place:Sydney

The Reviewable Decision is affirmed.
..............................[SGD]..........................................
Senior Member M Griffin QC
CATCHWORDS
COMPENSATION – whether Applicant is entitled to compensation under ss 16 and 19 of the SRC Act from 18 March 2020 – where injury sustained on 17 July 2014 – whether Applicant's injury has developed into a chronic condition requiring ongoing, reasonably required treatment – whether there is any connection with the original injury – injury found to have resolved as at 18 March 2020 – reviewable decision affirmed.
LEGISLATION
Safety Rehabilitation and Compensation Act 1988 (Cth)
CASES
Minister for Immigration v Pochi (1980) 31 ALR 666
REASONS FOR DECISION
Senior Member M Griffin QC
19 July 2022

On 18 March 2020, the Respondent determined that the Applicant had no present entitlement to compensation under ss 16 and 19 of the Safety Rehabilitation and Compensation Act 1988 (the SRC Act). That determination followed an acceptance by the Respondent of the Applicant’s claim for compensation under the SRC Act for ankle sprain to the right ankle sustained on 17 July 2014 and a secondary left Achilles tendonitis injury accepted to have been a secondary condition under s 14 of the SRC Act on 3 February 2017.
This matter comes before the Tribunal because the Applicant contests the finding that the Respondent has no continuing liability. The Respondent conducted a review of the decision on 17 June 2020 following the determination of 18 March 2020 and affirmed the 2020 decision.
The essence of the Applicant’s claim is that she continues to suffer the effects of the injury to her right ankle, which injury occurred on 17 July 2014, and further, as the case was conducted, that that injury, together with the left Achilles tendonitis said to have followed upon the 2014 injury, have developed into a ‘chronic condition’.
The Applicant further asserts that she requires ongoing, reasonably required treatment when injuries flare up and become too much to bear with the taking of medications alone. The latter words are the expressions used by the Applicant herself in her original statement of reply.
The Respondent submits that the ultimate issue for determination is whether or not, since 18 March 2020, the Applicant has been entitled to compensation under ss 16 and 19 of the SRC Act in relation to the injuries.
The Respondent proposes three subsidiary questions set out in their submissions as follows:
28Having regard to the legal principles outlined above, and the circumstances of this application, the resolution of that ultimate issue involves three questions for determination by the Tribunal:
(a)First Question: Have the injuries resolved as at 18 March 2020? If so, the Reviewable Decision must be affirmed, because, as explained in paragraph 23 above, the injuries would no longer be compensable injuries under s 14 of the SRC Act, such that there would be no entitlement to compensation under ss 16 or 19.
(b)Second Question: If the injuries had not resolved as at 18 March 2020, is it reasonable in the circumstances for her to obtain medical treatment in respect of the injuries, pursuant to s 16 of the SRC Act?
(c)Third Question: If the injuries had not resolved as at 18 March 2020, have the injuries resulted in incapacity for work from that time to the present date?
The Tribunal is satisfied that the approach to the issues to be determined and the exposition of the questions set out by the Respondent are both appropriate and correct. Furthermore, in practical terms, these were the questions, in effect, which were explored during the course of the hearing and the questions which, in a practical sense, the Applicant addressed and the Respondent sought to make reply.
It is relevant to note that the Applicant was unrepresented and supported in questioning and submissions by her husband. The Tribunal notes that the Applicant conducted her case in an exemplary manner.
As to the conduct of the case by the Respondent, however, the Tribunal notes that the case was conducted in an unnecessarily combative form, in that rather than attempting to expose all relevant evidence, the Respondent treated this matter both at hearing and in submissions in a particularly adversarial way. The refusal by the Respondent to call or attempt to call the specialist who treated the Applicant and who gave positive evidence on the Applicant’s behalf is an example of what the Tribunal regards as a failure in the proper conduct of the proceedings by the Respondent. More will be said about this topic below.
The history of the Applicant’s claim in a procedural sense is set out correctly, in the Tribunal’s opinion, in the Respondent’s submissions as follows:
5On 17 July 2014, the Applicant injured her right ankle. In her claim form (T9.34 at p37), she said she stepped on a gap where lift doors open, and twisted her foot. At this time, the Applicant was working as a Customer Service Officer at Centrelink, and her main duties was servicing customers over the phone. She had commenced employment with the Dept of Human Services in 1983: T9.34 (Claim Form) at p42.
6On 1 September 2014, Ms Colusso lodged her claim in relation to her right ankle: see the Claim Form at T9.34. On 19 September 2014, Comcare accepted liability under s 14 of the SRC Act, for “ankle sprain (right)”: T13.53.
7On or around 27 April 2016, the Applicant injured her left Achilles. This was apparently recounted in an email Ms Colusso sent to Allianz (who were managing her claim) on 10 May 2016. The email itself is not included in the T-Documents, but it is quoted from at T56.191 at p200 (being the decision on liability for this secondary injury). In that email, Ms Colusso said that on 27 April 2016 (while she was on crutches in connection with her right ankle injury), she was losing her balance and landed harder than usual, and that was how she hurt her left foot.
8On 3 February 2017, Comcare accepted liability for the Applicant’s “left Achilles tendonitis”, see T56.191.
9On 14 April 2020, Allianz, on behalf of Comcare, sent the Applicant notification of its proposal to decide to that the Applicant was no longer entitled to compensation in respect of the injuries on the basis that the effects of the injures had resolved: see. T97.329. Allianz invited the Applicant to provide a response by 15 March 2020.
10On 18 March 2020, Comcare decided (on the recommendation of Allianz) that the Applicant had no present entitlement under s 16 or s 19 in respect of the injuries. That determination is at T99.337.
11On 18 May 2020, Ms Colusso requested reconsideration of Comcare’s decision: see T108.356.
12On 17 June 2020, Comcare made the Reviewable Decision. It decided (on the recommendation of Allianz) to affirm its decision that the Applicant had no present entitlement under s 16 or s 19 in respect of the injuries as at 18 March 2020 on the basis that the Applicant did not continue to experience the effects of the injuries. The Reviewable Decision is at T111.365.
13The Applicant commenced these proceedings on 16 August 2020, seeking review of the Reviewable Decision made on 17 June 2020: see T2.3.
At paragraph 59 of the Applicant’s final reply of 2 May 2022, the Applicant accepted that as she is no longer in the workforce, she is not eligible or entitled to compensation under s 19 of the SRC Act.
The Tribunal accepts that submission and therefore that aspect of the matter before the Tribunal is resolved by the Applicant’s submission on that point.
The Applicant’s case is essentially that having been initially injured in 2014, with that injury occurring to the area of her right ankle, her condition over time, and up to an including the hearing, has continued, to varying degrees of seriousness, causing pain, discomfort and incapacity and is referable to the original injury in 2014.
In evidence, the Applicant made it clear that she appreciated that she was the person most particularly aware of her own body and its shortcomings and the Applicant further said in evidence, in effect, that her present condition, as described in documentation and in oral evidence, is referable to the original injury (and perhaps in combination with the compensable injury being tendonitis of the left Achilles tendon).
The Tribunal finds that the Applicant was attempting to be honest, truthful and did not deliberately exaggerate her evidence or her reporting of her various symptoms.
The Tribunal was provided with a variety of medical evidence from specialists and general practitioners. That evidence is also taken into account and a detailed discussion of that evidence is to be found below.
The Applicant, in effect, submitted that the Tribunal should find that the effects of the original injuries have not resolved and in that regard, made the following submissions which are reproduced from the Applicant’s submissions in reply, dated 2 May 2022.
7On my initial visit to Dr Viswanathan on 30 September 2014 (T15.64) based on the medical evidence available to him at that time (T9.37) Ultrasound 5 August 2014, (T14.63) Ultrasound 23 September 2014 and (T12.51) MRI 15 September 2014 he detailed my injuries as follows:
(i)     Dysesthesia with burning/stinging pain which pointed to Complex Regional Pain Syndrome (CPRS).
(ii)    Bruise on anterior aspect of her ankle overlying her Tib Ant tendon
(iii)   Lot of pain over her anterolateral ligament complex
(iv)   Pain over the aspect of her talus. The MRI shows an osteochondral lesion in her talus, a torn ATFL tendon and possibility of a Syndesmotic injury.
8Dr Viswanathan went on to comment that “she has a fairly unstable ankle with a Grade I to II anterior draw and a very tender medical talar dome.”
9Various treatments ensued until my right ankle was strapped to immobilise it and I used crutches to keep weight off it for approximately 8 months. This was, according to Dr Yeoh in his letter of support against Dr Allen (T7.30) as a result of ‘the prolonged period of inadequate stabilisation.”
10My initial visit to Dr Phillip Allen on 23 September 2015, and his apparent lack of regard that I was in a great deal of pain when he manipulated my ankle during his examination, set back my healing progress as attested to by Dr Yeoh (T7.31). Details of the inaccuracies in his report and deterioration he caused with the progress of my ankle injury are contained in my letter of complaint against Dr Allen (T50.167-171), supporting letter from my GP, Dr Ham (T49.165-166) and supporting letter from General Practitioner/Medical Acupuncturist, Dr Yeoh (T7.27-32).
11On 7 April 2016, my right ankle instability caused me to lose balance and land hard onto my left foot and injuring my Achilles tendon. Comcare subsequently accepted liability for this secondary injury on 3 February 2017 (T56.191-206).
12During his examination on 20 December 2016, A/Prof Nigel Hope, IME for MLCOA, confirmed that the diagnoses are a “right ankle talar dome lesion and left Achilles tendinitis.” (T55.188)
13Orthopaedic Surgeon Dr Sanjeer Gupta’s report dated 6 April 2017 (T59.210-211) noted there was a focal/osteochondral defect with a small amount of bone oedema for which he recommended a cortisone injection under ultrasound guidance. Although he noted that evidence of instability on the right ankle was unclear, he further noted that I was unable to perform a single heel rise on the right foot. I believe this indicates an ongoing issue with my ankle. Dr Gupta further stated “I am not convinced whether the osteochondral defect alone is the cause for her issues” which, I believe, suggests there are further issues related to the injury.
14On 15 November 2017 a right ankle injection under ultrasound guidance was carried out (T66.232) but this did not lead to any improvement per Dr Aran’s further referral to Dr Gupta dated 18 December 2017 (T68.231).
15During his examination on 21 December 2017, Dr Anil Nair Consultant Orthopaedic Surgeon, IME for MLCOA, confirms his diagnosis as “Based on the evidence at hand including MRI scan she has an osteochondral lesion in right ankle.” (T70.242). He goes on to provide the causation factors as “The articular cartilage injury is likely to have been caused by the workplace injury on 17 July 2014.” (T70.243).
16Although Dr Nair further states in his report that “She has undergone extensive physiotherapy, hydrotherapy and acupuncture. I see no role for this in the future.” (T70.243) However, he goes on to state “I would recommend physical therapy and hydrotherapy only under the guidance of a multidisciplinary pain clinic supervised by an interventional pain physician.” (T70.244).
17As per Dr Nair’s recommendation, I was under the care of Western Sydney Pain Centre from February 2018 til October 2018 which did assist to some degree with pain management (T72.247-T78.267 and T83.288-T87.301).
18During her examination on 6 August 2018, Dr Sandra McBurnie, Consultant Occupational Physician and IME for MLCOA confirmed the conditions I was suffering from at that time included “ligamentous injury of the right ankle” and “tenderness over the left Achilles compared to the right.” She further stated “Overall the predominant feature of Ms Colusso’s current presentation is a chronic pain disorder affecting both feet.” (T81.282).
19Dr McBurnie confirmed the causation factors by stating “The chronic pain disorder and ligament injury in the right foot is as a direct result of the incident described on 17 July 2014.” (T81.282).
20In response to the question of anticipated prognosis Dr McBurnie stated “The prognosis is guarded. Ms Colusso presented with pain of longstanding, affecting both the right and left ankles. It is likely she will continue to have pain affecting both feet with fluctuations in intensity.” (T81.285).
21Comcare did not approve physiotherapy treatments beyond February 2018 while I was attending the Western Sydney Pain Clinic. Due to ongoing pain and flare ups with my ankle, I felt it necessary to attend a physiotherapist for manual therapy and strapping and paid privately for 5 sessions between 5 July 2018 to 24 December 2018. (TB Tab 01.207).
22On 15 February 2019. I suffered a fall due to my right ankle giving way. This aggravated my right ankle/foot injury which required further physiotherapy with Comcare approving 16 sessions between 11 April 2019 and 24 September 2019. (T88-90.302-311).
23On 17 October 2019, I attended MLCOA to see Dr Allen Charles. This information was inaccurate as I found out during the appointment that the doctor was, in fact, Dr Philip Allen that I had seen previously on 23 September 2015. I would have refused to see this doctor if I had known it was the same person that was the subject of my complaint after the visit on 23 September 2015 (T50.167-171). Additional comments regarding this appointment are included in paragraphs 40 and 41 below.
24I attended my GP, Dr Ham on 27 November 2019, as I had developed pain in my back and left thigh. She lodged 5 Workcover Certificates over the period 27 November 2019 to 6 May 2020 (T113.878-897) noting that the left sided lumbar pain and left trochanteric bursitis were as a result of my ankle injury causing unbalanced gait pattern. The lumbar pain was resolved by microdiscectomy on 7 December 2019 (T113.883).
25I did not receive any response from Comcare/Allianz in regards to approval or otherwise but I did attend 6 physiotherapy sessions from 6 February 2020 to 12 March 2022 that were funded as workers compensation by Comcare (I cannot find any reference to this in the T-documents but I have accurate data about my physiotherapy visits and how they were funded).
26Comcare ceased compensation benefits for medical expenses under Section 16 of the SRC Act on 18 March 2020 (T99.337) even though the effects of the initial injury of my right ankle and foot have not resolved. The issues relating to potentially further secondary injuries in regard to my left thigh bursitis and left side lumbar pain were also not addressed prior to the cessation of compensation.
27In his report dated 23 April 2020 (T102.348) Dr Balsam Darwish, Neurosurgeon & Spinal Surgeon, provided reasoning as to why my back condition was related my right ankle/foot injury. He stated “Because of the pain in her right foot, she has been avoiding putting pressure on that foot which affected her posture and that put a strain on her back. I believe that her back condition is related to the right foot injury which altered her gait and put strain on her back.” Further he recommended physiotherapy and gym program under the supervision of an exercise physiologist.
28From 22 June 2020 to 14 October 2020, I attended 5 sessions of physiotherapy treatment primarily for my right ankle/foot and left ankle injuries but also had some treatment on my left thigh bursitis and left lumbar pain. These sessions were funded through Medicare.
29From 7 December 2020 to 23 December 2020, I attended 5 self-funded physiotherapy sessions for treatment primarily for my right ankle/foot and left ankle but also for some treatment to my left thigh bursitis.
30On 16 December 2020, I suffered another fall due to my right ankle instability. This again aggravated my right ankle injury and required treatment which was included in sessions noted in paragraph 29 above.
31From 21 April 2021 to 5 November 2021, I attended 4 Medicare funded and 1 self-funded physiotherapy sessions primarily for my right ankle/foot and left ankle but also for some treatment to my left thigh bursitis.
32On 30 June 2021, I saw A/Prof Neil McGill, Consultant Rheumatologist. In regards to his examination he stated “Because of her report that passive movements had caused exacerbation of pain, I did not attempt to assess the full range of ankle and subtalar movement on either side. There was no visible or palpable abnormality or asymmetry of the posterior heel and Achilles tendon region.”
33On 7 October 2021, I attended A/Prof Sameer Viswanathan, Orthopaedic Surgeon for a review (TB Tab A2.3) based on the latest MRI dated 25 September 2021 (TB Tab A1.1-2) of my right ankle and foot. He detailed the ongoing issues with my right foot and ankle and related these ongoing issues back to my original injury by stating “It is my belief that this is still a remnant of her injury sustained in 17 July 2014 so she is still having sequelae from this.”
34On 22 March 2022, I had another right ankle instability episode which caused me to land hard on my left foot. I attended a physiotherapy session on 23 March 2022 to have treatment on the painful left foot. This incident was referred to in the AAT hearing on 29 March 2022 (P-20) when the Senior Member asked if I was experiencing any pain today.
35I try to be extra vigilant when walking up and down stairs (and walking in general) as I am cognisant that my right ankle may give way unexpectedly which has occurred four times as detailed in paragraphs 11, 22, 30 and 34 above. These instances were all due to my ankle instability as a direct result of my injury on 19 July 2014 and indicate that my injuries have not fully resolved and my suffering is ongoing.
Relevant Legal Principles
The compensation scheme in the SRC Act
Section 14 of the SRC Act provides that Comcare is liable to pay compensation in respect of an “injury suffered by an employee if the injury results in death, incapacity for work, or impairment”.

“Injury” is defined in subsection 5A(1) of the SRC Act to mean:
(a)a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment. [emphasis added]
“Disease” is defined in section 5B of the SRC Act:
(1) In this Act:
“disease” means:
(a)an ailment suffered by an employee; or
(b)an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee. [emphasis added]
(2) In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:
(a)the duration of the employment;
(b)the nature of, and particular tasks involved in, the employment;
(c)any predisposition of the employee to the ailment or aggravation;
(d)any activities of the employee not related to the employment;
(e)any other matters affecting the employee’s health.
This subsection does not limit the matters that may be taken into account.
(3) In this Act:
“significant degree” means a degree that is substantially more than material.
“Ailment” is defined in section 4(1) of the SRC Act as “any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)”.
Section 16(1) of the of the SRC provides:
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.
Section 19 of the SRC Act is headed “Compensation for injury resulting in incapacity”. Section 19(1) provides: “This section applies to an employee who is incapacitated for work as a result of an injury other than an employee to whom section 20, 21, 21A or 22 applies.”
Central to the compensation scheme under the SRC Act is the definition of ‘injury’ in s 14 which defines injury as either an injury other than a disease or a disease each requiring demonstration of different causal connections related to an Applicant’s employment.
In the manner in which this matter was conducted, no such necessary sophistication or distinction is necessary other than primarily to determine whether the accepted injuries to the Applicant had resolved as at 18 March 2020 and the following relevant questions depending upon that determination by the Tribunal, and which questions have been referred to above.
As to the satisfaction of facts in issue before the Tribunal, there is no legislated standard of proof which either party must meet. However, facts which are accepted by the Tribunal should be accepted on the basis at least of satisfaction on the balance of probabilities. (See Minister for Immigration v Pochi (1980) 31 ALR 666.)
Evidence Doctor Allen
There are some matters of relevance to this decision raised in the evidence of Dr Allen. These are discussed both below and elsewhere.
Dr Allen reported in September 2015 that the Applicant told him words to the effect that her right ankle had stabilised, which he took to mean that she was no longer suffering from any issue in relation to her right ankle. As a matter of pure logic, that seems an absurd position for the doctor to have assumed as he was, in fact, engaged to examine the Applicant for the very purpose of assessing any continuing disability.
The doctor carried out a physical examination on which he based findings which in terms he referred to as objective symptoms and wherein he decided the Applicant was no longer suffering from the effects of the original 2014 injury.
It was inappropriate, in the Tribunal’s view, that Dr Allen re-assessed the Applicant having assessed her in 2014 in circumstances where the Applicant made a complaint about Dr Allen’s conduct. It is not to the point or indeed relevant whether that complaint was properly made or substantiated.
The fact of the making of the complaint should have warned those who sought to have the Applicant re-examined to have that re-examination performed by another doctor. In fact, through what can only be described as gross incompetence, an administrator sent her to see “Dr Charles”. The doctor’s name was inverted (Dr Charles Allen / Dr Allen Charles) and the Applicant was surprised and unsettled, according to evidence which the Tribunal accepts, when she discovered that she was seeing the very person in respect of whom she had made an earlier complaint.
Perhaps unsurprisingly because the doctor understood or misunderstood that the Applicant had said that she no longer suffered from an unstable ankle, the doctor’s physical examination confirmed what he believed the Applicant had told him and conformed also to his earlier examination of which the second later examination resulted in the same conclusion, that is, of no continuing disability as the result of the incident suffered in 2014.
The Tribunal is in no doubt that the Applicant did not inform Dr Allen that the right ankle was no longer unstable.
Oral evidence before the Tribunal that the examination by Dr Allen lasted from 12:56pm to 1:24pm approximately [page 333 of the record] and suggests that although the doctor said words to the effect in evidence-in-chief concerning the length of the doctor’s examination that it ‘took as long as it needed to take’, in the Tribunal’s opinion, that description of the history-taking and the physical examination suggest that this particular examination was perfunctory to say the least.
Dr Allen was questioned as to whether he had any comment to make about the opinion expressed by Dr Viswanathan.
SENIOR MEMBER: Dr Allen, did you or have you at some point been made aware of the opinion of Associate Professor McGill – Dr McGill?---Yes. (Indistinct) – - -
When were you made aware of those opinions?---I believe – - -
At any time before you expressed your own final opinion?---I was aware of those opinions when I prepared the final report, which was prepared on the papers on the date of 19 November 2021. So I had an opportunity to read the opinion, and I have commented on that in my report.
Yes. And have you been made aware of the opinion of a doctor upon whom the applicant relies – Dr Viswanathan?---Similarly, I was aware of those opinions and that's commented on in my report dated 19 November 2021.
And I take it you disagree with Dr Viswanathan's opinion?---There were certain elements of his opinion which I do not agree with, indeed.
Would you explain what those are?---Well, if I can take you to my report where they're laid out (indistinct) – yes, okay – - -
Is this your report of November 2021?---Yes, thank you. Yes, so I do note first of all that he is not giving an opinion as an independent medical examiner. So that's the first point that I make there.
No, I was going to ask you about that – I'm wondering what point that is that you make. He is a doctor and bound by proper rules in relation to reporting, is he not?---Yes, indeed, he is. But it – - –
And you accept that he is an expert?---I accept that he has the qualification of an expert as an orthopaedic surgeon, yes.
Yes, well then he is an expert?---Yes. Yes.
Well, you seem to be somewhat hesitant (indistinct) that he's an expert?---No, I accept (indistinct) – - –
You accept him to be an – yes, well, that's a fulsome acceptance, is it?---Yes, I accept that he is an expert.
Yes. And do you understand his opinion to be that the presentation of Ms 20 Colusso, who was his patient since 2014, is a presentation which in his opinion demonstrates that her condition at the time he saw her in 2021 is referable back to the original injury or injuries of 2014 and 2016?---Yes, I believe that's the opinion which he expresses.
Why do you say he is wrong?---Because I believe that the condition sustained in 2014 has long past. In fact I believe – - -
And where was he – I'm sorry, long past, yes – please go on?---And the evidence lies in the radiology of 2015, which shows that the injury sustained had already healed.
What about the MRI of 2021 I think it is – you may have to help me with this, Ms Patterson.
MS PATTERSON: Yes. It's in the tender bundle set. It's document tab A1, page 1.
SENIOR MEMBER: Yes. Can you see the report? It's the report of Dr Rafal Grabinski. You're aware of that report?---Yes. I have it in front of me right now, and (indistinct) – - –
Thank you. What do you say about that report, because it seems, as I understand it, that Dr Viswanathan appears to rely on that?---Well, moving through that report, if I may have the opportunity to explain it, the findings 45 I've given at the beginning that the syndesmosis, in other words the connection between the two bones in the ankle, is intact, and it also states that there's a previous injury, which is not repeated. She certainly did sprain her ankle and there was evidence of the previous injury, just – - –
Can I stop you there for a moment?---All right.
This doctor, assuming he's never seen this patient before, as we understand radiologists have little contact actually with the patients, what would he have seen for him to understand that there was a previous injury?---He would have seen a signal change in the scan indicating that there was scar tissue around where there would have previously been native tissue from the ligaments. So there would be – once you've had an injury to a ligament, for many years there is evidence that there has been an injury there. The scar tissue, yes, points to the healing of the injury and its presence continues, just as if you have a fracture in the bone, the callus that forms when the bone heals is present for many, many years, and looking back over X-Rays of people who have had previous fractures many years before, you can see evidence that there has been a previous fracture but it's long-healed.
And so it's evidence of the injury having healed?---Yes.
And you continue on to say that the fact that it is evidence that that injury has healed is evidence that it no longer plays any part in any issues affecting Ms Colusso's mobility?---There is more to it than that alone. In the examination there was no instability that I demonstrated, and the – - –
I'm sorry, the examination – what examination?---The examination of the – when I was able to examine her, and the two previous reports, I noted that the ankle was stable, indicating that the ligaments and healed and stability had been restored.
Can you offer any explanation for the symptoms which she expressed at that time, as she did to you upon that examination?---Only insofar as she had had a previous ankle sprain, and I was unable to find objective evidence of why it should continue to be so symptomatic.
Thank you. So you're really relying on pure objective evidence?---Yes. I think objectivity is key.
Thank you.
Apart from saying that he disagreed with that specialist’s opinion, curiously and worryingly in terms of the acceptability of Dr Allen’s evidence in terms of its professionalism and appropriate independence, Dr Allen clearly inferred that Dr Viswanathan’s evidence was of a lesser quality and suspect because he was not employed as an independent expert but rather was the treating doctor of the Applicant and as a result of the probable relationship between the two parties. This, as has been said, is the clear inference that the Tribunal draws, not only from the words used by Dr Allen, but also by the particularly guarded manner in which he gave his evidence when challenged about his statement on this topic.
In the Tribunal’s opinion, this is a worryingly irrelevant criticism by the doctor. In fact, in the Tribunal’s opinion, some extra weight may well attach to the opinion of an expert who is demonstrated to be independent and that expert has had lengthy or considerable connection in examination and treatment of a subject.
In this case, there is no reason to suspect that or suggest that Dr Viswanathan has provided a report that is anything other than independent. To suggest otherwise, as Dr Allen has done, in the Tribunal’s opinion, is to cast doubt upon the propriety of Dr Viswanathan’s evidence, and therefore, improperly calls into question that doctor’s impartiality. Such an improperly-made imputation by Dr Allen, together with the other matters discussed above, lead the Tribunal to conclude that Dr Allen’s evidence must be regarded with some considerable caution.
In the event, the Tribunal, for the reasons referred to above, will not act on Dr Allen’s evidence.
Further documentation
During the course of the cross-examination of Dr Allen, the Applicant and her husband, who spoke on her behalf, asked questions of Dr Allen and referred to a number of medical opinions which supported the Applicant’s case. The Tribunal requested that the Applicant assemble that evidence in reference to it in document form and provide it to the parties and the Tribunal by 30 March 2022.
The documentation was provided in accordance with the Tribunal’s request and also included a statement from Dr Gotis-Graham, dated 8 May 2020. The list of doctors, marked Exhibit A, and Dr Gotis-Graham’s report, marked Exhibit B, is reproduced in relevant detail below.
Thank you for referring this 56 year old retired Centrelink worker for assessment of widespread pain. It was clear from the beginning of the interview that she is overwhelmed by pain at multiple different areas. She complains of left lateral hip pain which has been present since September 2019. She has had two steroid injections, the last of which was performed yesterday. The first injection gave her temporary relief of pain. She also complains of low back pain which has been present for many years. In December 2019, she had surgery for left L5 nerve root compression. She also complains of pain in both knees. About six years, she had a work related injury. She damaged the right ankle talofibular ligament. Surgery was recommended and she did not proceed. She may have had chronic regional pain syndrome involving the right ankle. She has seen a pain management specialist. A local steroid injection was ineffective. She also complains of pain in the right forefoot which is worse after prolonged standing and walking. Overall, she rates her pain as 8/10 in severity. Lyrica resulted in side effects. Endep resulted in constipation and multilple other symptoms.
There are no other medical problems.
She is using Naprosyn 500 mg twice a day. She does not smoke. She drinks small amounts of alcohol.
There was pain on pressure over the left hip greater trochanteric region. Lumbar spine movements resulted in localised low back pain. The power and reflexes in the legs were normal. There may have been mild weakness of left ankle dorsiflexion. There was mild pain on grinding of the patella against the femur bilaterally. There was pain on pressure over the left ankle talofibular ligament. There was no swelling in the MTP joints.
This lady has chronic widespread pain due to multiple degenerative musculoskeletal problems including:
1. Left hip gluteus medius tendonitis. She should perform hip abduction and extension exercises.
2. Low back pain. It appears that surgery for left L5 nerve root compression has improved some of her left leg pain. It may take many months for the numbness associated with the left L5 nerve root irritation to improve. The MRI scan of the lumbar spine performed in April revealed changes suggestive of a fracture of the superior end plate of the L5 vertebral body. This may be due to mechanical factors. However, osteoporosis needs to be excluded. I have organised a baseline bone density scan. If the T-score is -2.9 or worse, I would recommend anti-resorptive therapy. Please ensure that the following blood tests have been performed: 25 vitamin D, calcium phosphate, TSH, PTH.
3. Bilateral knee patella-femoral osteoarthritis.
4. Right ankle injury.
She is overwhelmed by pain. Chronic pain is a major problem. I feel that she needs ongoing management by a chronic pain physician. I would suggest a trial of Prothiaden 25 mg at night. If you feel this is inappropriate given her problems with Endep, Cymbalta may be of benefit. As there are a number of other doctors involved in her management at this stage, I have not made any plans to see her again.
As to the evidence referred to by the Applicant in referring to the various doctors and the references to their evidence in Exhibit A, it is the Tribunal’s opinion that although there is some limited support for the Applicant’s case, none of the doctors referred to in Exhibit A or their statements made which are before the Tribunal and which are more fully disclosed in their statements, lend any convincing support for the Applicant’s case to be advanced. None of the doctors referred to in Exhibit A offer a valuable and probative opinion as to the existence and continuation at the relevant time in 2019 of the Applicant’s original injury and its continuing at that time to affect the Applicant in accordance with the operation of the relevant Act. In the Tribunal’s opinion, the only evidence which reaches that standard of relevance and proof is the evidence of Dr Viswanathan. In assessing this matter therefore, although those doctors referred to above lend some general support, the Tribunal finds the only satisfactory evidence upon which it can rely is the evidence of the Applicant herself and Dr Viswanathan.
The evidence of Dr Gotis-Graham, a rheumatologist and consultant physician whose field of expertise is relevant in this matter, is set out above.
At the top of page 2, in the first paragraph, the doctor said that there was ‘pain on pressure over the left ankle tallow fibular ligament. There was no swelling of the MTP joints’. The doctor also disclosed a finding that there may have been mild weakness of left ankle dorsiflexion. Nowhere has the doctor explored in any satisfactory detail as to the right ankle in terms of reference to an examination except in point #4 in the conclusion in which the doctor says the Applicant has chronic widespread pain due to multiple degenerative musculoskeletal problems including right ankle injury.
On the whole of the report, the Tribunal finds whilst there are some supportive statements to the Applicant’s case, the doctor’s opinion does nowhere near approach any statement which gives support to the proposition that the Applicant continues to suffer as at the relevant date in 2019 from a disability caused by her work and which was caused by an injury in 2014.
Medical evidence
On the second day of hearing, the Applicant provided to the Tribunal, on request, a document setting out the various statements by a variety of different expert medical practitioners upon whom the Applicant relied as supporting her case. This document came to be marked Exhibit 3 on 31 March 2022.
An analysis of the statements made by those practitioners, separately and independently viewed and also viewed collectively, does not support the Applicant’s proposition that those statements, either individually or collectively, demonstrate that the symptoms that the Applicant was suffering from, and continued to suffer after 18 March 2020, were in any way referable to the injuries suffered in 2014 and/or 2016.
Dr McGill gave evidence on 31 March 2022. The effect of his evidence was that any physical ailments suffered by the Applicant, in effect since 18 March 2020, were not preferable to the original injuries of 2014 and/or 2016. In particular, the following exchange occurred:
MR COLUSSO: Could the injury that occurred on 17 July 2014 have aggravated that talar dome lesion?---Well, the same logic applied that had there been a significant aggravation one would have expected an evolution of the imaging findings, so, again, I think the answer is no.
Okay. If I can move on to page 12 of your report, again, it's in the summary sections.
SENIOR MEMBER: Can you just indicate what paragraph you're going to ask the question about first so we can find that?
MR COLUSSO: The last three paragraphs of page 12 of the court book.
SENIOR MEMBER: That is the paragraph commencing, 'With respect to any injury'?
MR COLUSSO: Yes.
SENIOR MEMBER: Yes.
MR COLUSSO: There seems to be a couple of words there, or three words in particular, you know, they may just be run of the mill terms used in medical assessments, but in the third-last paragraph you use the word 'Conceivably she may have strained her left achilles', and then the next sentence, 'Presuming that to have been the case I think the effects of the injury', and then the next paragraph, 'And the possible injury to her left achilles'. Why are those words, which seem to cast doubts on there being an injury, why did you use those words in such a report?
SENIOR MEMBER: Just stop for a moment, Doctor. Are you saying the use of the term 'presuming that to have been the case', 'Conceivably she may have strained the left', and so on, are you suggesting that the doctor is there casting some doubt about the veracity of what Ms Colusso claimed to have occurred, and it's interrelationship with her original right ankle injury?
MR COLUSSO: Yes, I'm reading those words as words that cast doubts on – - -
SENIOR MEMBER: All right.
MR COLUSSO: – - – the veracity of the claim, and I just want to get that clarified whether that is the doctor's – - -
SENIOR MEMBER: Right. Yes, do you understand the question, Doctor?---Yes, I do. Yes. The experience of symptoms doesn't equal that there has been an injury accounting for those symptoms. Ms Colusso has experienced symptoms in many places and for many of those symptoms there's been no injury to account for the symptoms. That doesn't detract from the truth of the symptoms that she experiences. It's whether there's a relationship between activities and the symptoms, and – - –
And your opinion is expressed as a clinical opinion?---Yes.
It has nothing to do with the veracity or truthfulness or the manner in which Ms Colusso expresses her symptoms, and in particular in her case, as I understand it, Ms Colusso, it's the pain that you are concerned about which you are always talking about to the various doctors.
MS COLUSSO: That's correct, yes.
SENIOR MEMBER: Your opinion, Doctor, is one that is clinical. It does not go into whether Ms Colusso rightly or wrongly, or is overexpressing, exaggerating any symptoms deliberately, it is simply what your clinical findings are, and the clinical finding is based on objective evidence of your examination, and the examination of MRIs and other relevant related reports?---That's correct. And if I can just draw everyone's attention to my first paragraph on page 13 of my initial report in which I make the statement:
The experience of widespread pain does not imply voluntary exaggeration.
That was the question that was founded on my recollection of your making that statement, and I was going to ask, and I will now, Mr Colusso, I'm sorry if I'm interrupting your train of thought, but I want to ask the doctor, what do you mean by that statement?---Well, it means that people can experience widespread pain as a result of their emotional and psychological makeup, and the whole – the fullness of the experiences of life and the stresses of life and those pains can be genuinely felt real pains, but – - –
That is the expression of a 'subjective feeling about the pain'?---That's correct. Pain for all of us is subjective, and the experience of pain does not equate with physical disease, on one hand, and even when there is physical disease does not equate with that having been caused by injury. So, my role is to determine whether her widespread symptoms are related to physical disease, and, secondly, whether that physical disease is related to injury.

Dr McGill gave evidence concerning the report of Dr Gotis-Graham provided by the Applicant. The effect of this evidence by Dr McGill was that the physical manifestation of the Applicant’s widespread chronic pain was not attributable to the injuries of 2014 and/or 2016 and the doctor’s evidence also included reference to the talar dome lesion and concluded, that by reason of its physical manifestation and relative lack of change, that this was also indicative of a lack of connection between that physical manifestation and any injury which had occurred in 2014 and/or 2016.
WITNESS: So, you may need to give me some more guidance in terms of the dates, but I'll just take you through the reports that I think are relevant to this osteochondral lesion. So, if the MRI performed on 21 January 2015, the reporting radiologist specifically stated that the superomedial talar dome lesion was unchanged, that was in comparison to the MRI performed in September 2014, and the injury we're talking about happened – - -
SENIOR MEMBER: July of 2014?---Thank you. So – - -
17 July 2014 to be specific?---Thank you. Thank you. So, had it been an acute injury in the middle of July of 2014 one would have expected there to have been an evolution of the talar dome lesion between September 2014 and January 2015, and – - -
Now, can I stop you there and have you explain what you mean by an evolution, how it happened?---Well, a change – no, a change in either direction, but just a change.
A change?---A change, yes.
And that would've been observable by the January 2015 MRI?---That's right. One would have expected to see a change in that period.
Yes?---Yes.
And you say the MRI discloses no change at that point?---Well, that's what – yes, that's right, the reporting radiologist specifically compared the two studies and felt there had been no change, and the report radiologist is – you know, has special expertise in that field and I would accept that view.
Yes, very well?---In September 2015, again, it was described as a chronic, this time, three to four millimetre talar dome, but, again, the radiologist said overall stable. Again, meaning stability of the appearances, so – and if we come to the July 2016 MRI, at this stage the radiologist measures it at five millimetres. So – - –
What date – - -?--- – - – there's – - -
I'm sorry, Doctor, what date was that?---That date was 14 July 2016, yes. So, although the reporting radiologist has measured the size of it differently in terms of millimetres repeatedly the radiologist has recorded stability of that lesion, in other words an unchanging lesion which argues against it having been an acute lesion at the time of the sprain.
And do you draw any other conclusions apart from the fact that you say it's evidence – you say it argues against, but perhaps I'll put it in these terms, that those MRIs in the fact that the talar dome is seen by those who conducted the MRI, the radiologist, as being unchanged, that suggests that it was not acute?---That's correct.
And what does that mean, that it was not acute in terms of your overall and ultimate diagnosis?---Well, I think it means the talar dome lesion is not relevant to the symptoms. In contrast to the talar dome lesion, we did see an evolution of the lateral ligament sprain, as we would expect for an acute injury.
And what does that mean in terms of your ultimate diagnosis?---It means that the initial symptoms she was experiencing after the sprain were as a result of the sprain, and that we have evidence on MRI of an acute sprain, and we have evidence on MRI of a healing process going in an uncomplicated fashion.
And, so, are you really saying that the talar dome evidenced on the MRIs from January 2015 and onwards have nothing to do with the original injury?---That's correct.
Dr McGill was questioned further about the report of Dr Gotis-Graham and provided what the Tribunal considers is relevant and compelling evidence.
Yes. In fact, point 4 is part of the series of four different points in which he says, 'This lady has chronic widespread pain due to multiple degenerative musculoskeletal problems including' and then he lists one, two, three, four, the fourth one being the right ankle injury?---Yes.
And that seems then perhaps to make even clearer that that statement, 'There was pain on pressure over the left ankle talo-fibular ligament' seems to suggest it might've been a typographical error?---Yes, I mean, it might've been. I – - -
Yes. But, in any event, whether you read it as right or left, the entirety of the document, in your opinion, does not suggest in the doctor's opinion that there is any component in the condition which the applicant presented at that time which was referrable to any injury in July 2014 or any later injury in 2016?---Yes, I would use somewhat less definite wording and say that, at that time, Dr Gotis-Graham did not think that the right ankle was a substantial contributor to her overall symptoms complex.
Yes. And you say that rather by the fact that he hasn't said anything about it as being a substantial contributor?---Yes, there was – even if one presumes that the report of tenderness was a typographical error and referred to the right, it's still a very brief comment in regard to the right ankle area in the setting of more detailed comments about other areas, and the totality of her widespread pain.
Central to this report is the doctor’s statement that he believes that there is still a remnant of her injury sustained in 2014 and that as of October 2021, there is continuing sequelae from the injury of 2014. The acceptance of this opinion would ultimately produce the result, applying the proper principles and safeguards of the SRC Act that the Applicant would be successful in her application before this Tribunal.
There are some aspects of the Dr Viswanathan’s evidence in this report that, however, need to be addressed.
The Applicant did not call the doctor, and at an earlier telephone directions hearing (TDH) said that the doctor was unable to attend the hearing, or words to that effect. The Tribunal does not draw any adverse inference against the Applicant or the doctor because of non-attendance. It was obvious the Applicant was unrepresented by a legal practitioner.
In a case such as this, the Respondent has the responsibility of acting as a model litigant. In the Tribunal’s opinion, the Respondent had the responsibility in the conduct of this case to at least attempt to ensure the doctor was called by summons. The Respondent is to be regarded as a model and experienced litigant and therefore, by choosing not to call the witness itself, the Tribunal infers that not attempting to summons the doctor was a deliberate decision informed by a view of the tactics of the case.
The Tribunal made its attitude known to the Respondent in the very clearest of terms. The Tribunal will not allow such tactics used by a Respondent in these proceedings, or in proceedings of this kind, to be a means of the Respondent gaining a tactical advantage.
The Tribunal will, therefore, not ‘read down’ or in any other way than is proper on the evidence, diminish the force of Dr Viswanathan’s evidence by reason of the fact that he was not called to give evidence and therefore be unavailable for cross-examination.
Dr Viswanathan’s report was, however, extremely limited in any detail, and the conclusion ultimately provided as to the connection between the Applicant’s condition supported by radiology in September 2021 and enhanced by his own opinion in October 2021 is unsupported by any analytical process which goes to the foundation of the doctor’s opinion. The boldly stated conclusion by Dr Viswanathan has, therefore, quite limited value.
In the end result, the Tribunal is comfortably satisfied that the detailed opinions expressed by Dr McGill and the bases upon which those opinions are expressed should be accepted and preferred over the brief opinion expressed by Dr Vishwanathan.
The Tribunal is prepared to disregard the evidence of Dr Allen for the reasons expressed above.
Summary of Findings
Although the Tribunal is not prepared to accept the evidence of Dr Allen for the reasons expressed, the Tribunal notes that there are matters of coincidence with the evidence of Dr McGill, an Associate Professor in the School of Medicine and a specialist rheumatologist.
The Tribunal accepts the evidence of Dr McGill to the effect that the Applicant’s injury or injuries had resolved and no longer affected her as at 18 March 2020. It is most likely on the evidence that the injuries had, in practical terms, resolved at an earlier time, although it is unnecessary, in the Tribunal’s opinion, to make a precise finding as to when those injuries, which formerly had been accepted by Comcare, had actually resolved.
Therefore, by 18 March 2020, the Applicant’s medical condition was affected by a change in circumstances, that is to say, by 18 March 2020, the Applicant no longer suffered from any effects from the original injury or injuries in any way whatsoever.
The Tribunal recognises that the Applicant suffers and continues to suffer various levels of pain and discomfort and disability and this has continued up to the time of hearing. The Tribunal, however, makes it clear and finds that whatever condition or conditions the Applicant continues to suffer, as of 18 March 2020, those manifestations of pain, discomfort and disability are no longer connected with or able to be related to her original injury or injuries.
The first question posed, that is, “have the injuries resolved as at 18 March 2020?” is answered in the affirmative, consistent with the view the Tribunal has formed particularly based on the evidence of Dr McGill.
Although in this summary emphasis has been placed on the evidence of Dr McGill, the Tribunal has taken into account and referred to above the other evidence of various doctors and experts referred to by both the Applicant and by the Respondent.
The Tribunal, to be clear, finds on all the evidence (except insofar as reference has been made to the rejection of Dr Allen’s evidence) that the first question is answered in that the injuries, on all the evidence, have been demonstrated to have resolved as at 18 March 2020.
It is therefore unnecessary to answer the second question and it is accepted and consistent with the answer to the first question that the third question is answered in the negative.
DECISION
The Reviewable Decision is affirmed.

I certify that the preceding 68 (sixty -eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member M Griffin QC

....................................[SGD]....................................
Associate
Dated: 19 July 2022

Date(s) of hearing: 29 & 31 March 2022

Date final submissions received: 2 May 2022

Applicant: In person

Counsel for the Respondent: Ms S Patterson

Solicitors for the Respondent: SPARKE HELMORE

[2022] AATA 2464

19 July 2022

Key Legal Topics

Areas of Law

Employment Law

Statutory Interpretation

Legal Concepts

Causation

Expert Evidence

Remedies

Statutory Construction

Date(s) of hearing:	29 & 31 March 2022
Date final submissions received:	2 May 2022
Applicant:	In person
Counsel for the Respondent:	Ms S Patterson
Solicitors for the Respondent:	SPARKE HELMORE