Crick and Comcare (Compensation) - [2020] AATA 4483

Crick and Comcare (Compensation) [2020] AATA 4483 (9 November 2020)
Division:GENERAL DIVISION
File Number: 2017/2767
Re:Cheryl Crick
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Deputy President Dr P McDermott RFD
Date:9 November 2020
Place:Brisbane

I affirm the decision under review.
.........................................................................
Deputy President Dr P McDermott RFD
CATCHWORDS
COMPENSATION – determination that Comcare no longer liable to pay compensation to the employee for accepted injuries under section 16 and section 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) – lumbosacral (joint) (ligament) sprain of unspecified site of hip & thigh (right) – aggravation of displacement of intervertebral disc-lumbar – aggravation of disc degeneration L4-L5/L5-S1 (bilateral) – adjustment disorder with mixed anxiety and depression – whether applicant continues to suffer the effects of the compensable injuries – whether injury, being a disease, continues to be contributed to, to a significant degree, by employment – decision under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Public Service Act 1999 (Cth)
Safety Rehabilitation and Compensation Act 1988 (Cth)
CASES
Bushell v Repatriation Commission (1992) 175 CLR 408
Clavero and Australian Postal Corporation [2020] AATA 4167
Comcare v Laidlaw (1999) 89 FCR 141; [1999] FCA 40
Comcare v Porter (1996) 70 FCR 139
Comcare v Power (2015) 238 FCR 187; [2015] FCA 1502
Commonwealth of Australia v (K C) Smith (1989) 18 ALD 224 (Federal Court of Australia)
Commonwealth of Australia v Ford (1985) 9 ALD 433 (Federal Court of Australia)
Cranswick and Repatriation Commission (1988) 15 ALD 459
Darling Island Stevedoring & Lighterage Co Ltd v Hankinson (1967) 117 CLR 19
Dunkerley and Comcare [2014] AATA 381
Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626
Hollis and Comcare [2017] AATA 49
Hollis v Comcare (2017) 154 ALD 54; [2017] FCA 558
Ilsley v Wattyl Australia Pty Ltd (1997) 75 FCR 1
Kavas and Comcare (2011) 130 ALD 104; [2011] AATA 935
Lindeman Ltd v Colvin (1946) 74 CLR 313; [1946] HCA 35
Mahony v J Kruschich (Demolitions) Pty Ltd (1985) 156 CLR 522
Martin v Australian Postal Corp (1999) 29 AAR 420; [1999] FCA 655
McAuliffe v Comcare [2002] FCA 769
Perkins and Comcare [2018] AATA 3010
Scheuler and Australian National Railways Commission (1988) 14 ALD 518 (Administrative Appeals Tribunal)
Smedley and Repatriation Commission (1988) 16 ALD 574 (Administrative Appeals Tribunal)
Taylor and Comcare [2017] AATA 1327
Telstra Corp Ltd v Hannaford (2006) 151 FCR 253; [2006] FCAFC 87
Vasios and Australian Postal Corporation [2015] AATA 317
SECONDARY MATERIALS
Sutherland, P and J Ballard, Annotated Safety, Rehabilitation and Compensation Act 1988 (2014, 10^th ed) The Federation Press
REASONS FOR DECISION
Deputy President Dr P McDermott RFD
9 November 2020
INTRODUCTION

This is an application for the review of a determination by Comcare on 28 April 2017 to affirm an earlier determination dated 8 March 2017 that it was no longer liable to pay compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the Act”) to Ms Cheryl Crick (“the applicant”) in respect of the following injuries:
(a)Lumbosacral (joint) (ligament) sprain of unspecified site of hip & thigh (right);
(b)Aggravation of displacement of intervertebral disc – lumbar;
(c)Aggravation of disc degeneration L4-L5/L5-S1 (bilateral); and
(d)Adjustment reaction with mixed emotional features.
BACKGROUND
The applicant was employed with the Australian Taxation Office (“the ATO”) from 1996 until August 2019.[1] The applicant made a claim for workers’ compensation on 19 June 2008 for an injury on 10 June 2008 (“the 2008 fall”) when she tripped over some cables at her workplace.[2] On 10 September 2008, Comcare (“the respondent”) accepted liability to pay compensation to the applicant under the Act in respect of injuries the applicant suffered to her spine, right hip and right thigh (“physical injuries”) as a result of the 2008 fall.[3]
[1] Exhibit F, at [82].
[2] Exhibit A, T-Documents, T4-T5.
[3] Exhibit A, T-Documents, T167.
On 27 February 2009, the applicant suffered an “aggravation of lumbar sprain” injury while she was travelling from one office to another, for which the respondent accepted liability, initially until 20 March 2009,[4] and later extended until 30 June 2009.[5]
[4] Exhibit B.
[5] Exhibit C.
On 8 November 2011, the respondent agreed to pay compensation to the applicant under section 16 of the Act for a “L4/5 minimally invasive transverse lumbar interbody fusion” surgery.[6]
[6] Exhibit A, T-Documents, T174.
The applicant ceased working in June 2012; however, she remained employed by the ATO for some time thereafter.
On 17 September 2012, the respondent agreed to pay compensation to the applicant under section 16 of the Act for a “Two Level Anterior Lumbar Interbody Fusion” surgery.[7]
[7] Exhibit A, T-Documents, T175.
On 19 July 2013, the respondent agreed to pay compensation to the applicant under section 16 of the Act for the “Insertion of Lamitrode spinal cord stimulator inserted at the T9 level”.[8] This procedure was carried out in July 2013.[9]
[8] Exhibit A, T-Documents, T176.
[9] Exhibit F, at [50].
On 10 January 2014, the ATO wrote to the applicant to advise her of the termination of her employment.[10] On 24 January 2014, the ATO advised the applicant that it had revoked its earlier decision to terminate her employment.
[10] Exhibit A, T-Documents, T264, p. 905.
On 4 April 2014, the respondent made a determination in which it accepted that it was liable under section 14 of the Act to pay compensation to the applicant under the Act in respect of the applicant’s “adjustment reaction with depressive reaction” condition (“psychiatric (termination) injury”).[11] The applicant’s initial claim was predicated upon the psychiatric injury being the result of the termination by the ATO of the applicant’s employment for invalidity on 10 January 2014 pursuant to paragraph 29(3)(d) of the Public Service Act 1999 (Cth), which termination was later revoked by the ATO on 24 January 2014.[12] The delegate of the respondent did not consider that the manner in which the termination action was undertaken can be considered reasonable.[13]
[11] Exhibit A, T-Documents, T264, p. 899.
[12] Exhibit A, T-Documents, T264, p. 901.
[13] Exhibit A, T-Documents, T264, p. 907.
On 2 March 2015, the respondent wrote to the applicant to advise her that it had accepted liability for the development of the applicant’s “Adjustment Disorder with Mixed Anxiety and Depressed Mood” (“psychiatric (fall) injury”) which, on the available evidence, was linked to the applicant’s physical injuries as a result of the 2008 fall and was therefore a sequela to the applicant’s physical injuries.[14] As a result, the respondent then “amended” the liability it had accepted for the psychiatric (termination) injury to instead accept liability for an “aggravation of ‘Adjustment Reaction with Depressive Reaction’” (emphasis in original).
[14] Exhibit A, T-Documents, T188.
On 17 January 2017, the respondent advised the applicant that it intended to cease payment of compensation to the applicant in accordance with the Act in respect of the accepted injuries and provided the applicant with an opportunity to present any new information in support of the continuation of benefits.[15]
[15] Exhibit A, T-Documents, T235.
On 8 March 2017, the respondent made a determination under section 14 of the Act that it was no longer liable to pay compensation to the applicant in accordance with the Act in respect of her accepted injuries.[16]
[16] Exhibit A, T-Documents, T252.
On 28 April 2017, following an application for the reconsideration of the 8 March 2017 determination, the respondent affirmed its determination. The present application before this Tribunal is for the review of that decision.
LEGISLATION
The following terms are defined in section 4 of the Act:
aggravation includes acceleration or recurrence.
ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
impairment means the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function.
Subsections 4(8) and 4(9) of the Act provide:
(8)A reference in this Act to an injury suffered by an employee is, unless the contrary intention appears, a reference to an injury suffered by the employee in respect of which compensation is payable under this Act.
(9)A reference in this Act to an incapacity for work is a reference to an incapacity suffered by an employee as a result of an injury, being:
(a)an incapacity to engage in any work; or
(b)an incapacity to engage in work at the same level at which he or she was engaged by the Commonwealth or a licensed corporation in that work or any other work immediately before the injury happened.
Section 5A addresses the definition of an injury for the purposes of the Act and provides:
5A Definition of injury
(1) In this Act:
injury means:
(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.
Section 5B deals with the definition of disease for the purposes of the Act and provides:
5B Definition of disease
(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…
(2)In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth… 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.
Section 6 of the Act provides for circumstances in which an injury may be treated as having arisen out of, or in the course of, employment for the purposes of the Act.
Subsection 7(4) of the Act provides guidance for determining when an employee is taken to have sustained an injury which is a disease.
Subsection 7(6) provides for the circumstances in which incapacity can be taken to have resulted from a disease.
Subsection 14(1) of the Act provides:
(1)Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
Section 16 of the Act relevantly provides in respect of compensation for medical expenses that:
(1)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 the medical treatment.
Note:Compensation is not payable under this subsection in relation to certain claims (see section 119A).
(2)Subsection (1) applies whether or not the injury results in death, incapacity for work, or impairment.
Section 19 of the provides for the payment of compensation to an employee who is incapacitated for work as a result of an injury.
EVIDENCE - GENERAL
There is considerable documentary evidence before the Tribunal in this application including more than one thousand pages in the T-Documents, along with several hundred pages of exhibits. I have considered all of the documentation that is in evidence as well as the evidence given by the witnesses.
Evidence of the applicant
Statement of Cheryl Crick dated 21 August 2019
The applicant provided a detailed, twenty-two page statement dated 21 August 2019 which was tendered in evidence during the hearing.[17]
[17] Exhibit F.
The applicant gave a detailed account regarding:
(a)The 2008 fall incident;
(b)The treatment that she had undertaken for her lower back and thigh symptoms including medication, injections, surgery, and pain management;
(c)Her experience of the assessment process for invalidity retirement;
(d)The notice of termination that she received in January 2014 and the psychological symptoms she suffered as a result;
(e)Her current situation including her medical condition, relationship with the ATO and her living arrangements;
(f)Her mental state; and
(g)Her response to the surveillance footage.[18]
[18] Exhibits P and Q.
In her statement, the applicant remarked that:
(a)She did not recall any previous work-related injuries apart from the medial nerve injury in 1990/1991, however, following the provision of documents held by WorkCover Queensland, her memory was prompted of having sustained upper-back and calf muscle injuries while working as a laundry attendant in the early nineties;
(b)She sustained an injury in December 2004 when she slipped on a wet floor while working for the Commonwealth, the effects of which continued until about 2006, however, she did not make a claim for compensation in respect of that injury;
(c)She was involved in a motor vehicle accident in December 2006 in which she sustained injuries to her cervical spine (whiplash), bruised ankles, left rotator cuff (shoulder) and “mild” irritation of her existing lumbar sacroiliac injury;
(d)She continued to suffer “occasional twinges” from 2007 onwards in her right lumbar-sacroiliac region which were not severe enough to require analgesia;
(e)She sustained an injury on 27 February 2009 while travelling by bus between ATO offices which caused an exacerbation of her lower back pain symptoms until about 20 March 2009. I have earlier mentioned that liability for this injury was accepted by the Respondent until June 2009. This was her second claim for compensation under the Act;
(f)Following the bus-travel incident she stated that “it was difficult to determine whether the ongoing pain and mobility issues related to the injury incurred in June 2008 or the exacerbation in February 2009. As a result, Comcare advised me that they were going to manage everything under claim number [1]”;
(g)She suffered a traction injury to the nerves of her left leg following surgery in 2011, along with significant scarring due to the movement of the cage during that surgery which required further surgery in late 2012;
(h)She has pain and mobility issues affecting both legs and her lower back which she attributes to the complications from the surgeries;
(i)She made a third claim for compensation in respect of a psychiatric injury she suffered following the notice of termination of her employment with the ATO in 2014;
(j)She disagreed with the assessment of Dr Shaikh that there was a relationship between the complications from her surgery and the onset of her psychological symptoms;
(k)Her resolve to return to work was bolstered by a Ketamine infusion treatment that she undertook in October 2015;
(l)The cessation of compensation has taken a toll on her both physically and mentally and caused her to suffer severe financial hardship;
(m)She received an email from the ATO on 20 August 2019 notifying her that her employment had again been terminated;
(n)She and her husband moved back to Brisbane in August 2018 and have not used their caravan since returning;
(o)She has worn an ankle foot orthosis since 2012 “due to ongoing issues resulting from nerve damage incurred during the surgery in 2011” which has recently broken. Due to financial constraints, however, she has resorted to using temporary orthotics and cannot afford to replace her ankle foot orthosis;
(p)She continues to suffer pain and mobility issues originating in her sacroiliac joint which restrict her capacity to undertake activities of daily living and give rise to the need for supports, medical implements, and medication;
(q)She has suffered from psychiatric symptoms since 2014;
(r)While she is able to go on long trips in a car, she can only do so as a passenger;
(s)She is a singer who has performed in rock and blues bands, however, over time she required more and more “concessions” on stage such as sitting on a stool for part of the performance. The frequency of her performances tapered off after the 2008 fall. She stated that she was due to perform in March 2017 but she had to cancel as “it had become too hard”. She has not performed since August 2016 and her bandmates have formed a new band without her;
(t)She suffers from a number of other health complications;
(u)When she goes fishing, she no longer performs fishing activities, but rather, she watches others who are fishing;
(v)Prior to the 2008 fall, she used to walk every day and occasionally went hiking. Now however, climbing stairs can cause her to suffer increased pain for days;
(w)She considered that the moments of her life that were captured within the surveillance commissioned by the respondent[19] were atypical, and in fact, the surveillance footage showed the difficulties she faces in everyday life. The applicant remarked that the surveillance footage often omitted recordings of events immediately after those shown where she undertook certain activities which were important for understanding their context, including for example, footage of a ten minute rest she took after climbing the stairs at Jacob’s Ladder; and
(x)The respondent tendered footage of the applicant performing on stage in 2010 which the respondent referred to as “Crick – September 2012”. The applicant submitted that the respondent had erroneously titled that video and it was uploaded to YouTube in 2010 and was filmed at a time when her capacity was not as impacted by her conditions.
[19] Exhibits P and Q.
Lay witness statements
The applicant filed a number of written statements from lay witnesses who gave evidence at the hearing.
The applicant’s husband gave a statement dated 12 December 2018.[20] In his statement, the applicant’s husband discussed his recollection of the applicant’s physical complaints prior to the 2008 fall injury and after, along with activities in which they participated together prior to 2008. He also provided detail as to their current situation.
[20] Exhibit G.
A former colleague of the applicant gave a statement dated 12 December 2018[21] in which he described his relationship with the applicant prior to and after the 2008 fall injury. The former colleague described how he perceived psychological changes in the applicant following the 2008 fall injury and how he felt that incident had impacted upon her.
[21] Exhibit H.
The applicant’s brother gave a statement dated 18 December 2018[22] in which he discussed his perception of the applicant and her mental and physical state prior to and after the 2008 fall injury.
[22] Exhibit I.

The applicant also tendered statements from her sons.[23] In their statements, her sons detailed how they had seen their mother’s condition decline after the 2008 fall injury and referred to her diminishing capacity to engage in activities such as performing music on-stage,[24] camping,[25] or socialising with friends and colleagues.[26]
EVIDENCE – MEDICAL
Mr Philip Hardcastle, Spinal Surgeon
[23] Exhibits J and K.
[24] Exhibit K, at [9].
[25] Exhibit J, at [11].
[26] Exhibit J, at [15].
Report of Mr Philip Hardcastle, Spinal Surgeon, dated 27 February 2008
On 27 February 2008, Mr Philip Hardcastle, Spinal Surgeon, provided a report to the applicant’s treating physician, Dr Luma Alkhayat, General Practitioner, who treated the applicant while she was in Western Australia.[27] Mr Hardcastle arranged for a facet block injection at the L5-S1 of the applicant’s spine which provided her with relief for about two days. The applicant reported radiating pain in her hips and below her knees, aggravated by sitting, walking and bending. She also reported intermittent numbness and thoracic symptoms. Mr Hardcastle concluded: “I suspect she’s going to come to a spinal fusion procedure from L4-S1 given the progressive nature of her symptoms. I’ve advised her to seek an assessment once she gets back there”.
Dr Marcus Navin, Consultant Occupational Physician
[27] Exhibit N.
Report of Dr Marcus Navin, Consultant Occupational Physician, dated 8 December 2016
On 8 December 2016, Dr Marcus Navin, Consultant Occupational Physician, gave his report,[28] which report was described by the respondent as the “genesis” of this application.[29] Dr Navin had previously assessed the applicant and previously reported on 17 March 2016,[30] and 27 May 2016.[31] The respondent requested this report from Dr Navin for the purposes of an assessment under section 36 of the Act in relation to the applicant’s capability to undertake a rehabilitation program.
[28] Exhibit A, T-Documents, T151.
[29] Submissions on behalf of the respondent dated 15 November 2019.
[30] Exhibit A, T-Documents, T140.
[31] Exhibit A, T-Documents, T145.
The applicant reported living in a caravan with her husband and moving around regions of Queensland and staying in low-cost areas to conserve resources. She reported assisting her husband with the setting up of the van and going fishing.
The applicant reported to Dr Navin that “she was not able to be engaged in any form of employment due to the problems relating to her ongoing back discomfort and pain”. The applicant stated that walking a kilometre over the course of a day would increase her pain and that she was restricted by pain from engaging in any activity.
The applicant stated that she continued to access prescription medication as needed. Dr Navin identified that the applicant’s medication regime included: Palexia, Endone, Plaquenil, Valium, and over-the-counter Nurofen. Dr Navin identified that the applicant had not trialled the use of Norspan.
Dr Navin reported that the applicant “continues to aspire to return to the ATO to continue her career”. Dr Navin remarked that the applicant had “no ambition to seek a partial invalidity pension or to be considered for ill health retirement on the basis of her pain and back condition”. Dr Navin observed that the applicant quite properly recognised that returning to work would be advantageous in a financial sense.
At his assessment on 2 December 2016, Dr Navin formed a view that the applicant’s presentation suggested “some significant improvement in her overall status and presentation”. Dr Navin observed that a “variability of the grip strength was of note” measured during a strength test using a “Jamar dynamometer”.
The respondent referred to the following passage from the report of Dr Navin:
On general observation, Ms Crick was able to move comfortably around the examination room without any evident distress. Though she had reported significant discomfort during the journey to the assessment, physical examination of her spine and associated muscles did not demonstrate any localised area of tenderness nor muscle reactivity. There was no precisely located tenderness noted at this assessment. Ms Crick reported generalised discomfort throughout her lumbar spine and paraspinal tissues.
Dr Navin concluded his report as follows:
SUMMARY AND ASSESSMENT:
Ms Crick’s situation can be considered to be stable and stationary. There is evidence that she has not deteriorated in the interim since the last report. In my opinion, she is stronger, and in my opinion, she has the fitness and capacity to be able to engage in a rehabilitation program under the remit of Section 36 of the SRC Act. Overall her situation is consistent with the previous diagnosis and management. There are no new treatment recommendations suggested as a result of this assessment.
Supplementary report of Dr Marcus Navin, Consultant Occupational Physician, dated 8 December 2016
On 8 December 2016, Dr Navin gave a supplementary report in which he responded to a list of questions posed to him by the respondent.[32]
[32] Exhibit A, T-Documents, T152.
In answering the respondent’s schedule of questions, Dr Navin opined that:
(a)The applicant had the capacity to return to work on a graduated program and that she “was emphatic that she had the capacity and the desire to return to work”;
(b)The applicant’s condition was an aggravation of a pre-existing condition which had been addressed by maximal medical treatment with pain interventions and which had now ceased. The applicant’s present condition was a consequence of a “pre-existing long established spinal condition”;
(c)There was, at that time, “no evidence of any abnormality of her lumbosacral joint or sprain of either the thigh or the hip. It is recognised that she suffered an aggravation of a disc degeneration which was already extant prior to her workplace event with her accepted condition”; and
(d)The applicant’s adjustment reaction with mixed emotional features had “moderated significantly”.
Supplementary report of Dr Marcus Navin, Consultant Occupational Physician, dated 5 January 2017
Following the receipt of Dr Navin’s reports dated 8 December 2016, the respondent requested a further supplementary report from Dr Navin which he provided on 5 January 2017.[33] The questions posed by the respondent to Dr Navin focused upon the cause of the applicant’s current condition, non-employment factors and pre-existing or underlying conditions, the cessation of any employment-related aggravation, and the applicant’s current treatment.
[33] Exhibit A, T-Documents, T154.
In responding to the questions of the respondent, Dr Navin opined that:
(a)The applicant already had degenerative changes present on a CT scan conducted at the time of her initial claim for compensation in 2008;
(b)The applicant receives “a degree of sufficient pain management” from the combination of the spinal cord stimulator inserted in 2013, along with the medication she takes;
(c)“The acute aggravation from 2008 has now ceased. The aggravation will have ceased by 2009. She has now undergone maximum medical care in relationship to her pre-existing spinal condition”;
(d)“The problems with her back can be associated with her pre-existing 2-level lumbar disk degeneration” which would have occurred in any event;
(e)The initial surgical intervention for the applicant’s spinal degeneration and nerve compression had led to complications and “Regrettably the ongoing symptoms that have occasioned since could be related to the problems in relationship to her first surgery in 2011, but are not directly linked to her employment”; and
(f)The applicant’s high-dose narcotic medication was unlikely to present problems should the applicant return to work.
Dr Nicholas Jetnikoff, Consultant Psychiatrist
Report of Dr Nicholas Jetnikoff, Consultant Psychiatrist, dated 17 March 2016
On 17 March 2016, Dr Nicholas Jetnikoff, Consultant Psychiatrist, gave his report.[34] Dr Jetnikoff assessed the applicant on 10 March 2016 at the request of the respondent.
[34] Exhibit A, T-Documents, T139.
As to the history of the applicant’s psychiatric condition, Dr Jetnikoff observed that Ms Crawley, Psychologist, reported the presence of anxiety and depression symptoms. Dr Jetnikoff observed that the applicant reported a nervous breakdown with a mix of emotional symptoms and melancholia following her termination in 2014. Following the applicant’s reinstatement and subsequent changes to her medication regime, Dr Jetnikoff’s observations as to the applicant’s approach to returning to work suggest she continued to remain sanguine about her ability to eventually undertake future employment.
Dr Jetnikoff referred to the applicant’s successful transition from the use of Durogesic patches to Palexia toward the end of October 2015 and the subsequent settling of her low mood and anxiety which followed complications from the psychiatric (termination) injury and her second surgery.
As to “Current Problems”, Dr Jetnikoff remarked that the applicant did not report any substantial psychiatric symptoms and was eager to return to work. Dr Jetnikoff reported that:
her only trigger for anxiety was the potential of exposure to procedural unfairness in her case. She believed that she had… learnt more about her rights… She did not believe that any anxiety she would experience in response to such a perception in the future would cause her any problems with her work.
Dr Jetnikoff summarised his opinion as follows:
It would appear that Ms Crick had two periods of significant adjustment disorder after physical injury and some workplace issues referred to earlier, with a mix of anxiety and depression. Limited psychiatric treatment has been required and she has no significant symptoms of a psychiatric disorder at this time. Her physical injuries are most significant and these have been stabilised, particularly her pain management which has been good in the last 6 months after a long period of instability. After more than 3 years out of the workforce she is now keen to resume work in a steady capacity potentially returning to full-time pre-injury duties. There is no psychiatric impairment evidence to stop her pursuing this successfully.
Dr Jetnikoff did not consider that the applicant suffered from any psychiatric disorder at the time of his report and that her psychiatric condition was fully remitted. Dr Jetnikoff placed importance on the provision of a rehabilitation program to the applicant as her condition would likely decline if one were not provided to her.
Associate Professor Dr Robert Labrom, Orthopaedic Surgeon
Report of Associate Professor Dr Robert Labrom, Adult and Paediatric Spinal Surgeon, dated 28 July 2009
Associate Professor Dr Robert Labrom, Adult and Paediatric Spinal Surgeon, was the applicant’s treating orthopaedic surgeon after the applicant suffered further back complaints following an incident during a journey on a bus between ATO offices in February 2009. Dr Labrom gave his report at the request of the respondent on 28 July 2009.[35]
[35] Exhibit A, T-Documents, T36.
Dr Labrom made reference to radiological studies which had revealed the early stages of degenerative change in the applicant’s spine which he attributed to pre-existing lumbar spondylosis.
Dr Labrom opined that the effects of the 2008 fall had likely ceased and contributed either little or in no part to the applicant’s condition at the time of writing his report. Dr Labrom went on to remark that the applicant’s “pre-existing lumbar spondylosis now contributes mostly to her symptomatology”.
Dr Labrom opined that he expected the applicant’s symptoms to improve and stabilise in time, and specifically suggested that the applicant’s lumbar ligament strain and hip and thigh complaints resulting from the February 2009 incident on the bus would be stable within four months from the date of that injury.
Dr Scott Campbell, Neurosurgeon
Report of Dr Scott Campbell, Neurosurgeon, dated 13 September 2017
Dr Scott Campbell, Neurosurgeon, gave a report dated 13 September 2017 at the request of the applicant.[36]
[36] Exhibit U.
Dr Campbell reported that the applicant was neither working, nor looking to re-enter the workforce, due to the persisting lower back complaint and poor mobility resulting from the left foot drop.
As to the applicant’s medical history prior to the 2008 fall, Dr Campbell observed that the applicant had fallen at work on 1 December 2004 and sustained a lower back injury, reported by her General Practitioner to be persistent on 17 June 2005; a CT scan of her lumbar spine in January 2006 revealed no fractures. Dr Campbell also observed the applicant had “aggravated the lower back injury” following a motor vehicle accident in December 2006 after which she experienced ongoing intermittent lower back pain but was still able to perform activities of daily living. A later CT scan of the applicant’s lumbar spine in May 2008, shortly before the 2008 fall, showed degenerative changes.
Dr Campbell considered that the treatment that the applicant had undertaken for her physical injuries “to date has been adequate and extensive… It is very unlikely Mrs Crick would benefit from any further surgical intervention”. Dr Campbell suggested that physiotherapy may be of benefit for any acute exacerbations of the applicant’s physical symptoms and that it would be reasonable for the applicant to continue her use of Endone and Oxycontin.
Dr Campbell considered that the 2008 fall “has been the major contributing factor to [the applicant’s] ongoing symptoms. There was a past history of lower back pain which has also contributed to a lesser degree”.
While it falls outside the scope of the present application, Dr Campbell assessed the applicant as suffering a 28% Whole Person Impairment (“WPI”) in accordance with the Guide to the Assessment of the Degree of Whole Person Impairment Edition 2.1 (“the Guide”).
Supplementary report of Dr Scott Campbell, Neurologist, dated 16 May 2018
On 16 May 2018, Dr Campbell gave his supplementary report.[37]
[37] Exhibit U.
Dr Campbell clarified his opinion that, “of the 28% whole person impairment, 70% was due to the 2008 injury and 30% due to pre-existing symptoms”.
Dr Campbell stated that his opinion as to the applicant’s WPI remained unchanged after having viewed the surveillance footage before the Tribunal.[38] He did, however, adjust his assessment of the applicant’s incapacity and opined that the applicant had “some residual capacity for sedentary type work in the order of 10-15 hours per week”. Dr Campbell considered that the footage was “supportive of a lower back injury and persisting footdrop complaint”.
[38] Exhibits P and Q.
As to whether the applicant would still have required surgery, had the 2008 fall not occurred, Dr Campbell opined that it would have been unlikely, on the balance of probabilities, that the applicant would have required surgery.
Further supplementary report of Dr Scott Campbell, Neurosurgeon, dated 29 August 2019
On 29 August 2019, Dr Campbell provided a further supplementary report at the request of the applicant.[39] Dr Campbell was provided with the summonsed records contained within Exhibits N and O, along with a copy of the applicant’s statement to which I have earlier referred.[40]
[39] Exhibit U.
[40] Exhibit F.
Dr Campbell opined that the applicant:
… managed her chronic lower back symptoms with regular physiotherapy and was able to continue to work, on a full time basis, in her role with the Australian Taxation Office. She was also progressing her career despite her lumbar spine condition.
After undergoing surgery which was complicated by a left foot drop she attempted to return to work but was not able to get medical clearance for the role. Her physical symptoms persisted and prevented her from returning to work.
Dr Campbell maintained his opinion that the applicant may have some residual capacity to work 10-15 hours per week, but did not consider her capable of working in any full time role due to chronic pain and reduced mobility.
Associate Professor Dr Peter Steadman, Consultant Orthopaedic Surgeon
Report of Associate Professor Dr Peter Steadman, Consultant Orthopaedic Surgeon dated 5 January 2018
On 5 January 2018, Associate Professor Dr Peter Steadman, Consultant Orthopaedic Surgeon, gave his report at the request of the respondent.[41]
[41] Exhibit V.
Dr Steadman provided a detailed outline of the applicant’s history of spine, hip and leg complaints from 2004 to the date of his report.
Dr Steadman reported that a radiological report in May 2008 “shows only minor degenerative changes at L4 to S1 with minor physiological L4/5 & L5/S1”. He also reported that a further radiological report in March 2009 “showed same as 2008”.
Dr Steadman remarked that:
… surgical intervention has ultimately made her worse… although her condition presents as one medical continuum, the issue is about initial causation in relation to the mechanism and the co-pathologies which were present in 2008 at or around the time of the injury and/or potentially the contribution of the 2004 and 2006 injuries.
I would not be of the opinion she had surgery for a work-related injury, but for persistent degenerative disease.
As to whether the applicant’s condition is related to her employment with the ATO, Dr Steadman opined that:
… she has had her claim accepted and has had all of her operations funded through the Comcare scheme. Therefore her employment with the ATO is likely related obtusely, however consideration of the radiology at or around that time shows only pre-existing degeneration.
It is likely that that event has marginally aggravated that, but beyond that ‘medical misadventure’ as it is known largely accounts for her very adverse outcome. This does not per se imply negligence but unfortunate consequences of failed treatment.
Dr Steadman considered the applicant to have a partial incapacity for work, but she was “quite impaired because of the spinal fusion”.
Dr Steadman opined that “the work-related orthopaedic condition has not resolved”. Dr Steadman observed that the applicant had prior non-work-related injuries “but reportedly had recovered from them”.
The tenor of this report is that Dr Steadman is of the opinion that the applicant’s present condition is attributable to a degenerative underlying condition which has been aggravated by failed surgical intervention, which surgical intervention was undertaken in respect of a non-work-related condition. Dr Steadman is of this view notwithstanding that the surgical interventions to which he refers were paid for by the respondent by way of compensation for medical treatment under section 16 of the Act.
Supplementary report of Associate Professor Dr Peter Steadman, Consultant Orthopaedic Surgeon dated 20 March 2018
On 20 March 2018, Dr Steadman gave his supplementary report at the request of the respondent.[42] The respondent provided Dr Steadman with copies of the surveillance footage and footage of the applicant’s on-stage performances,[43] along with copies of “more recent advertisements for performances”.
[42] Exhibit W.
[43] Exhibits P and Q.
Dr Steadman remarked that he found the activities the applicant was seen to undertake in the surveillance footage were “dichotomous to those presented during the independent medical examination… The real issue that the surveillance shows is that her function is much higher than that which is represented during the medical assessment”.
Dr Steadman observed a number of elements of activities which he saw the applicant undertaken in the surveillance footage which he considered to be inconsistent with the difficulties reported during his examination of the applicant. Dr Steadman went on to conclude that her presentation was not consistent and opined:
This is more about function, she has had extensive surgical care which cannot be denied although is clearly immensely more functional than she presents during the IME.

Dr Steadman concluded that: “In essence it is clear she is highly functional and able to return to pre-injury employment if and when she chooses”.
Dr Wasim Shaikh, Psychiatrist
Report of Dr Wasim Shaikh, Psychiatrist, dated 9 February 2015
On 9 February 2015, following an assessment of the applicant on 22 January 2015, Dr Shaikh gave his report at the request of the respondent.[44] This report of Dr Shaikh was written in respect of the psychiatric (termination) injury, being an adjustment reaction injury suffered on 20 January 2014.
[44] Exhibit E.
Dr Shaikh diagnosed the applicant as having “Adjustment Disorder with Mixed Anxiety and Depressed Mood” and considered this diagnosis appropriate because the applicant “has presented with a combination of depressive and anxiety symptoms in relation to identifiable stressors (ongoing physical complaints and perceived unlawful termination”.
Dr Shaikh reported:
From a psychiatric perspective, Ms Crick reports distress in relation to perceived unlawful termination of her employment. She advises that in September 2013, a Health Case Worker with the Taxation Office ‘simply decided that her incapacity was permanent’, and following an assessment for medical invalidity, she was ‘bullied into signing papers’; thereafter receiving a termination notice in January 2014. Ms Crick experienced significant distress at this decision, which she states also affected her physical health. She advises that the termination decision has now been retracted, based on the ‘fact that it was deemed to be illegal’. She has received notification that a mistake had been committed and that her employment would be reinstated. Ms Crick was in the process of submitting her documents to Fair Work Australia, just prior to the termination decision being upturned.
Dr Shaikh remarked that the applicant’s mental state examination was consistent with the history that she had provided. Dr Shaikh observed that the applicant “has previously received psychological intervention but this seems to be related to her physical injuries and for adjustment towards the same”.
Dr Shaikh considered that the applicant presented with psychological distress, prior to the termination notice she received in January 2014, as a result of the spinal stimulator installation, revision surgery and medical invalidity, and that these factors together with the termination notice received by the applicant in January 2014 “led to significant resurfacing of her psychological distress”.
Therefore, Dr Shaikh attributed the applicant’s psychiatric condition to two factors, namely, the physical distress she has experienced, and distress due to the psychiatric (termination) injury. Dr Shaikh considered that, at the time of his report, the applicant’s psychiatric symptoms were “predominantly maintained” by physical distress factors.
Dr Shaikh considered that there was a “direct causal relationship” between the applicant’s psychiatric condition and the “employment incident of January 2014”. Dr Shaikh also opined that there still remained a contribution to the applicant’s then current psychiatric condition from the psychiatric (termination) injury. Dr Shaikh did consider that the distress caused to the applicant by the psychiatric (termination) injury might alleviate, however, he considered that her ongoing physical distress was likely to continue to result in the applicant suffering from psychiatric symptoms.
Dr Shaikh did not consider the applicant’s psychiatric condition to be “by itself… a significant contributory factor to working incapacity”.
Further report of Dr Wasim Shaikh, Psychiatrist, dated 1 February 2018
On 1 February 2018 Dr Shaikh gave a further report.[45] This second report followed a further assessment by him of the applicant and provision by the respondent of a number of further documents not previously provided to Dr Shaikh for the purposes of his previous report. Dr Shaikh expressed his understanding that the applicant’s claim in respect of the psychiatric (termination) injury had been “closed”.
[45] Exhibit M.
Dr Shaikh commented that while the applicant denied other significant past psychiatric issues, there was a history of depression and treatment in 2006.
Dr Shaikh opined that “There has always been an intimate relationship between [the applicant’s] experienced physical complaints and the adjustment disorder”. Dr Shaikh was of the view that, in circumstances where the effects of the 2008 fall injury have ceased, it would also mean that any ongoing psychological complaints were “perhaps related to a long established pre-existing spinal condition”.
Dr Shaikh referred to the opinion given in 2016 by Dr Nicholas Jetnikoff, Psychiatrist, (with which the applicant’s treating physician agreed) that the applicant’s psychiatric complaints had abated to an extent and her condition was in remission.
Dr Shaikh remarked that “only after the notification of early 2017 has there been reports of psychological distress”, suggesting that it has been the cessation of compensation benefits that has caused the applicant’s present psychiatric complaints.
Dr Shaikh opined that the applicant presented with reasonably stable mental health in 2016 and her adjustment disorder condition had resolved by 2015.
Dr Shaikh then confirmed his opinion that, while the applicant’s psychiatric symptoms are perhaps sufficient to meet the criteria to be diagnosed as adjustment disorder, the condition now relates to the decision to cease payment of compensation to the applicant.
Supplementary report of Dr Wasim Shaikh, Psychiatrist, dated 28 February 2018
On 28 February 2018, Dr Shaikh gave his supplementary report at the request of the respondent.[46] The purpose of this supplementary report was for Dr Shaikh to comment upon the surveillance footage which is before the Tribunal.[47]
[46] Exhibit T.
[47] Exhibits P and Q.
Dr Shaikh quite properly recognised that to comment upon any apparent physical inconsistencies in the surveillance footage would be outside the scope of his medical expertise. However, Dr Shaikh did opine that, from a psychiatric perspective, that there were inconsistencies between the applicant’s presentation in the surveillance footage and Dr Shaikh’s observations of her.
Dr Shaikh suggested that the surveillance footage of the applicant betrayed a capacity to engage in reasonable social engagements and travel inconsistent with her reported withdrawal, reduced motivation, anxiety and panic-like phenomena. Dr Shaikh commented that there was evidence that the applicant had performed with her band on stage in July 2016 and March 2017. I note that the applicant gave evidence that the March 2017 performance was cancelled and I understand this comment of Dr Shaikh may have referred to the advertisement for the (later cancelled) performance, a copy of which was provided to Dr Shaikh by the respondent. Dr Shaikh considered there was an inconsistency between the applicant’s statement to him in February 2018 that she had not performed in approximately two years and the evidence provided, however, as I have earlier mentioned, there is no cogent evidence before me that the applicant had actually performed on stage in March 2017. The applicant in her evidence-in-chief had stated that the “last gig” that she did was at a wedding in August 2016, and her account in this regard was not challenged by the respondent.
Dr Michael Leong, Consultant Psychiatrist
Report of Dr Michael Leong, Consultant Psychiatrist, dated 14 September 2017
On 14 September 2017, Dr Michael Leong, Consultant Psychiatrist, gave his report at the request of the applicant, following an assessment of the applicant on 11 September 2017.[48]
[48] Exhibit L.
Dr Leong remarked that the applicant has received psychological counselling since July 2012 and has unsuccessfully trialled anti-depressant medication which she ceased due to her intolerance to their side-effects.
Dr Leong remarked in his report that the applicant reported she had ceased singing in her band “last year”, and that she had a “recent obsessive preoccupation with crocheting”.
Based on his assessment of the applicant, Dr Leong diagnosed her as having “Chronic Adjustment Disorder with mixed anxious and depressed mood”. On Axis IV (Psychosocial and Environmental Problems) of the DSM-IV multiaxial classificatory system, which system I note is not utilised in the DSM-V, Dr Leong referred to:[49]
Occupational problems
Problems with primary support
Problems with compensation and litigation system
The respondent did not make any submission concerning the fact that the diagnosis of Dr Leong used the diagnostic method contained in the DSM-IV.
[49] Exhibit L, at p. 16.
By way of prognosis, Dr Leong guardedly viewed the chronicity of the applicant’s psychiatric condition being greater than two years, having regard to: “limited access to psychological/psychiatric treatment, premorbid personality traits and interaction with the compensation/litigations system”.
While it falls outside the scope of this application, Dr Leong opined that the applicant’s psychiatric condition caused her a 10% WPI in accordance with the Guide.
Dr Leong opined that any psychiatric condition resulting from the 2008 fall injury “is not contributing to a significant degree to [the applicant’s] ongoing psychiatric symptoms and resulting work incapacity”.
Dr Leong instead considered that it is the “termination of her employment in January 2014 [that] has contributed to a significant degree to [the applicant’s] ongoing psychiatric symptoms and resulting incapacity for work”.
THE HEARING
The hearing of this matter was held over three days on 2, 3 and 4 September 2019. The Tribunal heard oral evidence from the following witnesses:
(a)the applicant;
(b)Mr Peter Howard;
(c)Mr Peter Treadgold;
(d)Mr Adrian Leary;
(e)Mr Barry Crick;
(f)Dr Michael Leong;
(g)Dr Scott Campbell; and
(h)Associate Professor Dr Peter Steadman.
ISSUES
I have to determine whether the respondent is liable to pay compensation to the applicant under section 16 and section 19 of the Act in respect of her physical and psychiatric conditions. I must consider:
(a)For the purposes of both section 16 and section 19 of the Act, whether the applicant suffers from any injury or injuries which is/are caused, to the satisfaction of the relevant standard of causation, by her employment with the Commonwealth; and if so
(b)Additionally, for the purposes of section 19 of the Act, whether the claimed injuries of the applicant result in incapacity for work, or impairment.
The relevant standard of causation for an injury (other than a disease) or aggravation of a physical or mental injury (other than a disease) suffered by an employee is that the injury or aggravation (but not the index injury in the case of an aggravation) “arose out of, or in the course of, the employee’s employment” with the Commonwealth.[50]
[50] Safety, Rehabilitation and Compensation Act 1988 (Cth) paragraphs 5A(1)(b)-(c).
The relevant standard of causation for an injury which is a disease (ailment) suffered by an employee, or an aggravation of such an ailment, is that the disease or aggravation “was contributed to, to a significant degree, by the employee’s employment by the Commonwealth…”.[51]
SUBMISSIONS
[51] Safety, Rehabilitation and Compensation Act 1988 (Cth) subsection 5B(1).
Applicant submissions
The applicant contends that her accepted injuries “continue to be an effective or operative cause of any incapacity that she continues to suffer”. The applicant contends that “But for the Incident, the Applicant has been rendered incapacitated significantly earlier”.
The applicant relied upon the judgment of Drummond J in McAuliffe v Comcare[52] in which His Honour remarked:
I take the principle to be applied in determining whether the 1971 injury resulted in these detriments for Mr McAuliffe to be that stated by the Court of Appeal in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 at 463 - 464:
‘The result of the cases is that each case where causation is in issue in a workers compensation claim, must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact… What is required is a commonsense evaluation of the causal chain.’[53]
[52] [2002] FCA 769.
[53] McAuliffe v Comcare [2002] FCA 769, at [11].
The applicant referred to the judgment in Ilsley v Wattyl Australia Pty Ltd[54] of the Full Court of the Federal Court of Australia in relation to a claim under the Workers Compensation Act 1951 (ACT) and applicant submitted that the Full Court held that an “‘injury’ will only be a cause of the incapacity if it has ‘remained an effective or operative cause of the incapacity’”.[55]
[54] (1997) 75 FCR 1.
[55] Applicant’s Statement of Facts, Issues and Contentions dated 12 July 2018, p 5.
The applicant drew the Tribunal’s attention to discussion of the words “result of” as they appear in section 19 of the Act in a number of decisions of this Tribunal.[56] The applicant then referred to the judgment of von Doussa J in Commonwealth of Australia v (K C) Smith where his Honour remarked:[57]
…it is clear law that it is not necessary for an incapacity to result solely from a compensable injury before compensation is payable as a consequence of that injury… It is sufficient if the injury contributes in a material sense to the incapacity…. If a compensable injury constitutes one of a number of factors or events each of which combine as links in a chain of causation terminating in a single condition amounting to total incapacity, that incapacity will be fully compensable, the injury being a contributing cause in a material sense… The critical consideration is that a single condition arises causing incapacity even though the condition may have independent causes. Such a case is to be distinguished from one where independent causes produce independent consequences, distinct bodily conditions which amount to total incapacity only because they must be added together.
[56] Kavas and Comcare (2011) 130 ALD 104; [2011] AATA 935; Dunkerley and Comcare [2014] AATA 381; and Hollis and Comcare [2017] AATA 49 (which I note was remitted by the Federal Court on the basis that the Tribunal had erred in failing to consider whether, in relation to the instances it identified of “reasonable administrative action”, the applicant would not have suffered from her disease or its aggravation if that action had not been taken. See Hollis v Comcare (2017) 154 ALD 54; [2017] FCA 558).
[57] (1989) 18 ALD 224 (Federal Court of Australia), at 226.
The applicant submitted that there are “two alternative bases” on which liability can be assessed:
(a)First, “that the Accepted Injury was (and is) a compensable ‘injury’ in the sense of an ‘ailment or an aggravation that was contributed to in a material degree by the employment’ and therefore was a ‘disease’ within ss 5A(1)(a) and 5B(1)(b)”; or
(b)Second, “that the Accepted Injury was (and is) a compensable ‘injury’ in the sense of a ‘frank physical injury’; namely, ‘an injury (other than a disease)… arising out of, or in the course of, the employee’s employment’ within s 5A(1)(b)”.
The applicant submitted that “Section 7(6) is relevant in considering whether the Accepted Injury is an ‘injury’ by way of a ‘disease” and it “provides an employee with an alternative means of linking an incapacity with an ‘injury’” and referred to the decision of the Federal Court in Comcare v Laidlaw,[58] along with the decision of this Tribunal in Vasios and Australian Postal Corporation.[59]
[58] (1999) 89 FCR 141; [1999] FCA 40.
[59] [2015] AATA 317.
In regard to the application of subsection 7(6) of the Act, the applicant drew the Tribunal’s attention to the following passage from Darling Island Stevedoring & Lighterage Co Ltd v Hankinson,[60] referred to by Burchett J in Martin v Australian Postal Corporation,[61] in which Barwick CJ remarked:
An acceleration by work in an employment of a pre-existing disease not itself arising out of or received in the course of the employment becomes in itself an injury within s 9 of the Act. The question is whether because of the nature of such an injury, the basic principles to which I have referred in connexion with other injuries must be in some fashion modified or qualified. If incapacity in fact results from the acceleration, is this not enough to entitle the worker to an award in the same way or to the same extent as would be the case with any other injury? I have no doubt that it would. If the incapacity it causes ceases, the award will be for that reason terminable. But that incapacity does not cease because it is demonstrable that, without the injury, the worker would have arrived from another cause at the same state of incapacity. It seems to me nothing to the point that that other cause would have been the pre-existing disease in its own unaided progression. Where the incapacity which results from the acceleration is permanent, in my opinion, the award is not terminable because that incapacity would in any case have been the end result of the pre-existing disease.
[60] (1967) 117 CLR 19, at 26-27.
[61] (1999) 229 AAR 420; [1999] FCA 655.
The applicant submits that “the failed surgeries (to treat the Accepted Injuries) cannot be considered a novus actus interveniens” and rather, are themselves part of the chain of causation upon which the liability of the respondent is established. The applicant further contends that, in any event, “irrespective of whether the Applicant’s incapacity is significantly contributed by the complications of the surgeries, the Respondent remains liable for this incapacity as the surgeries were… approved [and] funded by the Respondent; [and] intended to treat a work-related injury”.
The applicant relied upon subparagraph 6(1)(f)(ii) of the Act which provides that an injury shall treated as having arisen out of, or in the course of employment if it was sustained while the employee was at a place for the purpose of receiving medical treatment for an injury. I note at this juncture that section 6 of the Act provides guidance in applying the words “arising out of, or in the course of […] employment”, being the words which appear in paragraphs 5A(1)(b)-(c), in respect of an injury “other than a disease”.
The applicant submitted that any incapacity which is caused by the provision of medical treatment under section 16 of the Act in respect of a compensable injury is incapacity which should be included when applying subsection 7(6) of the Act. The applicant referred to Lindeman Ltd v Colvin,[62] a claim under the Workers' Compensation Act 1926 (NSW), where Dixon J remarked:
… if an injury resulting from an accident arising out of and in the course of the employment is aggravated by medical treatment or if the surgical procedures adopted to remedy or alleviate the injury cause a secondary traumatic or pathological condition or death, the total condition is to be attributed to the accident, that is so long as the workman acted reasonably…
According to the common course of affairs injuries must be dealt with surgically or medically, and where surgical or medical treatment miscarries, as well as where it succeeds in alleviation, the final condition of the patient is regarded as resulting from the accident.[63]
[62] (1946) 74 CLR 313.
[63] (1946) 74 CLR 313, at 321.
The applicant also referred to Comcare v Porter[64] where Jenkinson J remarked in regard to subsection 7(6) of the Act:
In one respect at least the operation of the section appears to confer an entitlement to compensation which would not otherwise be conferred by the 1988 Act. If a worker were being treated in hospital for a disease and were attacked there by a deranged person who had wandered into the hospital, incapacity caused by the attack could reasonably be said to be an incapacity which, but for the disease, would not have occurred.[65]
[64] (1996) 70 FCR 139.
[65] (1996) 70 FCR 139, at 143.

The applicant quoted from the judgment of the High Court in Mahony v J Kruschich (Demolitions) Pty Ltd,[66] where the Court reasoned that:
A negligent tortfeasor does not always avoid liability for the consequences of a plaintiff's subsequent injury, even if the subsequent injury is tortiously inflicted. It depends on whether or not the subsequent tort and its consequences are themselves properly to be regarded as foreseeable consequences of the first tortfeasor's negligence. A line marking the boundary of the damage for which a tortfeasor is liable in negligence may be drawn either because the relevant injury is not reasonably foreseeable or because the chain of causation is broken by a novus actus interveniens…
When an injury is exacerbated by medical treatment, however, the exacerbation may easily be regarded as a foreseeable consequence for which the first tortfeasor is liable. Provided the plaintiff acts reasonably in seeking or accepting the treatment, negligence in the administration of the treatment need not be regarded as a novus actus interveniens which relieves the first tortfeasor of liability for the plaintiff's subsequent condition. The original injury can be regarded as carrying some risk that medical treatment might be negligently given…[67]
[66] (1985) 156 CLR 522.
[67] (1985) 156 CLR 522, at 528-529.
The applicant contended that the surgeries, for which compensation was paid by the respondent, have made her condition worse. Following the first surgery, she has experienced a left-foot drop, along with complications in the interbody cage which was inserted. Following the second surgery, the pain the applicant experienced became present on both sides, as opposed to only her right side. The applicant did not return to work following the second surgery. She experienced some reduction in pain following the insertion of the spinal cord stimulator, but continues to suffer from weakness in her left leg.
The applicant referred to oral evidence of Dr Steadman that the surgeries were marred by complications and were a “misadventure”.
The applicant also contended that the evidence of Dr Campbell should be preferred over that of Dr Steadman and Dr Navin. The Applicant contended that the 2008 fall injury continues to be the cause of the applicant’s current physical condition, and if that is not the case, the surgeries undertaken in respect of that injury are the cause of the applicant’s current physical condition.
The applicant referred to a number of examples of the applicant’s capacity prior to the 2008 fall incident including a 25 kilometre walk through Carnarvon Gorge in 2005. While the applicant continued to work full-time following the 2008 fall incident, the applicant has contended that she worked from home two days per week during that time.
The applicant drew to the Tribunal’s attention the oral evidence of Dr Campbell at the hearing. Dr Campbell considered that:
(a)the depiction of the applicant in the surveillance footage to be consistent with her reported restrictions;
(b)the applicant has consistent age-related degenerative changes;
(c)the 2008 fall could have caused a soft-tissue injury on the basis that prior to the 2008 fall she did not suffer from nerve entrapment;
(d)the applicant’s pre-existing back problems did not prevent her from working full-time and had good functional capacity;
(e)the surgeries have played a major role in the applicant’s ongoing problem.
Respondent submissions
The respondent broadly outlined its position as follows:[68]
The respondent’s case is simply that an appraisal of the applicant’s now revealed medical history, coupled with the expert medical opinion which has both assessed the applicant and considered those new medical records, amply demonstrates that the applicant is no longer entitled to both ss.16 and 19 entitlements pursuant to the Act.
[68] Submissions on behalf of the respondent dated 15 November 2019, at [8].
The respondent recognised[69] the “practical matter” described by Katzmann J in Comcare v Power that the respondent “would have to persuade the Tribunal of the circumstances which justify a finding that compensation payments should no longer be made”.[70] The respondent contends that it has readily satisfied this task. Importantly, as Katzmann J did in Comcare v Power, I eschew reliance upon a descriptor such as “onus” to describe the task that the respondent contends that it has undertaken to the requisite degree. In Bushell v Repatriation Commission Brennan J (as he then was) made a general observation that the notion of onus of proof, which plays so important a part in fact-finding to adversarial proceedings , has no part to play in administrative proceedings.[71] While these observations were made in the context of the Veterans’ Entitlements Act 1986 (Cth), the learned authors of a leading commentary on the Act consider that these observations have general relevance to AAT proceedings.[72] The respondent has quite properly submitted that to refer to an “onus” in applications under the Act would be “not customary”. The applicant has also recognised this practical matter.[73]
[69] Submissions on behalf of the respondent dated 15 November 2019, at [8].
[70] (2015) 238 FCR 187; [2015] FCA 1502, at [70].
[71] (1992) 175 CLR 408 at 424-425.
[72] Sutherland, P and J Ballard, Annotated Safety, Rehabilitation and Compensation Act 1988 (10^th ed) The Federation Press, at 509.
[73] Applicant’s outline of submissions dated 18 October 2019, at [29].
The respondent contends that the applicant no longer suffers from any injury resulting from the 2008 fall and the applicant’s present condition is not contributed to, to a significant degree, by her employment with the Commonwealth.
The respondent contends that the applicant’s present psychiatric condition is no longer contributed to, to a significant degree, by her employment with the Commonwealth, but rather, are a consequence of “non-compensable factors”.
The respondent referred to Telstra Corp Ltd v Hannaford,[74] and submitted that the Tribunal is empowered, where it has the benefit of considering evidence not available at the time of an earlier determination, to make findings of fact that “effectively undercut the necessary findings of fact made in the initial original decision”. The respondent relies upon this precedent in its contention that the surgeries undergone by the applicant were not in respect of any accepted condition, notwithstanding that the respondent did in fact pay for them.
[74] (2006) 151 FCR 253; [2006] FCAFC 87, at [59].
The respondent contends that the applicant has a history of lower back, hip and thigh complaints which started before the 2008 fall, some going back as far as 2004 and others which related to her motor vehicle accident in 2006.[75] The respondent referred the Tribunal to the applicant’s medical records obtained under summons which were in evidence before the Tribunal.[76] The entries referred to by the respondent were put to the applicant in cross-examination. The respondent submits that the applicant’s attempts to downplay these entries as being references to “short lived episodes of pain” are “simply untenable”.[77]
[75] Submissions on behalf of the respondent dated 15 November 2019, at [18].
[76] Exhibits N, O, and S.
[77] Submissions on behalf of the respondent dated 15 November 2019, at [19].
The respondent submits that the applicant’s case for ongoing entitlement to compensation based upon “‘failed’ spinal surgeries” as opposed to a case based upon the 2008 fall bears a misplaced reliance upon paragraph 6(1)(f) and subsection 7(6) of the Act.
The respondent drew to the Tribunal’s attention what it described as the “volte-face” of Dr Campbell during cross-examination in which he shifted from his opinion to which I have earlier referred that 70% of the applicant’s WPI was attributed to the injury of the 2008 fall, to instead opine that only 30% of the WPI was attributable to that injury. The respondent submitted that this shift in opinion “would be of some concern to the Tribunal in accepting his evidence”.[78] The respondent submitted that Dr Campbell’s basis for maintaining an apportionment of even 30% of the applicant’s WPI to the 2008 fall injury was based upon a flawed premise that the applicant performed full time duties “up until that work injury”. The respondent contended that the applicant did not in fact cease working until after her second surgery in 2012.
[78] Submissions on behalf of the respondent dated 15 November 2019, at [24].
The respondent drew the Tribunal’s attention to the evidence in-chief of Dr Steadman that the 2008 fall represented a “minor blip on the radar”. The respondent contended that Dr Steadman was of the opinion that the following history supported this conclusion:[79]
The applicant begins to report lumbar pain as early as 2007 which she related to the motor vehicle accident;
The finding of a disc protrusion in the CT scan of 27 September 2007 indicates that the applicant would be ‘getting nerve pain’;
The cortisone injection represents ‘more significant treatment’ for back pain;
Dr Hardcastle’s report of 27 February 2008 indicates ‘a sort of progressive incremental increase in symptomatology’;[80]
The prospect of a spinal fusion as noted by Dr Hardcastle indicates ‘that she’s getting really bad’;
By this time, the applicant ‘reaches the stage where she finally needs an operation because she has exhausted all of the conservative management. So she’s debilitated by pain’.
[79] Submissions on behalf of the respondent dated 15 November 2019, at [26].
[80] Exhibit N.
The respondent highlighted the view of Dr Steadman that the surgery undergone by the applicant was prompted by her underlying condition and was not surgery for the applicant’s work-related injury, a view which was reaffirmed after provision to Dr Steadman of the documents obtained under summons from Western Australia.[81]
[81] Exhibit N.
The respondent submitted that the evidence of Dr Steadman, taken together with the evidence of Dr Labrom and Dr Navin, casts doubt on the opinion of Dr Campbell and raises concerns as to the applicant’s credibility in circumstances where she claimed to only have suffered “occasional twinges” in her spine prior to the 2008 fall.
As to the surveillance footage, the respondent made a number of contentions including that:
(a)The footage demonstrates that the applicant had a level of physical capability and function well in-excess of what she has reported to the Tribunal and to various doctors;
(b)The footage undermines observations by Dr Campbell that the applicant experienced difficulty sitting and getting up from a chair;
(c)The footage demonstrates that the applicant was able to squat and pat dogs which is inconsistent with the history reported to Dr Campbell and the applicant’s explanation for her ability to undertake these activities in the footage is implausible;
(d)The footage demonstrates that the applicant is able to assist in dismantling a caravan site and partake in a road trip for several hours – a range of activity inconsistent with the level of disability she reported to Dr Campbell; and
(e)Despite being provided a mobility scooter by the respondent in 2014, the applicant is not seen using it and the claims made in support of the provision of the mobility scooter are inconsistent with the applicant’s capacity to walk more than 50 metres as seen in the footage.
The respondent contended that it is the termination of the applicant’s compensation entitlements that is significantly affecting the applicant’s mental health, rather than the psychiatric (termination) injury or the 2008 fall. The respondent contends that the psychiatric (termination) injury and the 2008 fall no longer contribute, to a significant degree, to the applicant’s psychiatric condition. The respondent submitted that the Tribunal should come to such a conclusion having regard to the opinion of Dr Shaikh, which the respondent contends was endorsed by Dr Leong. The respondent also based this submission on a contention that the applicant’s psychiatric condition had ceased by the time she was assessed by Dr Jetnikoff in March 2016, and it was the subsequent cessation of her compensation benefits which has brought on the applicant’s current psychiatric condition.
In response to the submission by the applicant that subsection 7(6) of the Act is “relevant in ‘considering whether the accepted injury is an injury ‘by way of a disease’’…”, the respondent referred to the judgment of Finn J in Comcare v Laidlaw, in which his Honour reasoned that in order to consider subsection 7(6), the applicant “must first satisfy the anterior condition that he or she suffers a s 4 ‘disease’ with its attendant contribution requirement”.[82]
[82] (1999) 89 FCR 141; [1999] FCA 40, at [23].
The respondent submitted that the applicant’s contention that her condition has been caused by an injury while undergoing medical treatment is flawed by reason that an “injury” has not been established and that, at best, “the evidence discloses that the surgeries did not achieve the desired outcomes”, and further, the respondent contends that the surgeries should, with the benefit of the evidence now available, be viewed as having been undertaken in respect of a non-work-related ailment.
Applicant reply submissions
The applicant filed closing submissions in reply on 22 November 2019.
The applicant challenged the submission of the respondent that there had been a shift towards an argument that the surgeries were the causative factor in the applicant’s current condition. The applicant referred to earlier submissions filed prior to the hearing in which these issues were raised.
The applicant contended that the evidence of Dr Campbell at hearing as to the applicant’s employment capacity before and after 2008 should be understood to mean that he proceeded on the understanding that the applicant worked full-time prior to 2008 and ceased full-time work after the 2008 fall injury. The applicant contended that she was unable to work full-time following the 2008 fall injury.[83]
[83] Applicant’s reply to the respondent’s submissions dated 22 November 2019, at [12].
The applicant referred to the fact that Dr Labrom and Dr Navin were not called to give evidence. The applicant also contended that it was noteworthy that the opinion of Dr Labrom in his report dated 28 July 2009 that the 2008 fall injury “now contributes little or no effect to her current condition” was not acted upon by the respondent until eight years after it was given.
As to the footage of the applicant performing on-stage, the applicant contended these were taken in July 2010 and July 2012, as opposed to in September 2017.
The applicant counterposed certain elements of the surveillance footage against the contentions of the respondent as to her demonstrated capacity as shown in that footage.
The applicant referred to the statements provided by the lay witnesses called by her and submitted that these statements were evidence which supported a finding that she was not incapacitated prior to the 2008 fall injury.[84]
[84] Exhibits G, H, I, J and K.
The applicant disagreed with the respondent’s contention that there was no “identifiable discrete injury” which arose from the surgeries and that these surgeries caused a “catastrophic leap in terms of her deterioration”.
The applicant contended that the respondent’s submission that the applicant worked unabated and without issue after the 2008 fall injury is not supported by the evidence.
CONSIDERATION
Hannaford
The respondent accepted liability for each of the three surgical procedures undergone by the applicant. The respondent has submitted, in reliance on the decision of the Full Federal Court in Telstra Corp Ltd v Hannaford,[85] that the Tribunal in the light of new evidence becoming available, is empowered "to undercut" the necessary findings of fact made in the original determinations. The respondent further submitted that the medical evidence which is now available indicates that those surgeries were undertaken to address the continuing underlying constitutional condition of the applicant, and that that information was not in the possession of the respondent at the time of making those particular determinations pursuant to section 16 of the Act. Certainly, the principle in Hannaford is still authoritative. Recently, in Clavero and Australian Postal Corporation, Deputy President Sosso explained that the Full Federal Court in Hannaford made it very clear that future decision makers are empowered to make subsequent findings of fact in relation to previous determinations under sections 16 and 19 of the Act.[86]
[85] (2006) 151 FCR 253; [2006] FCAFC 87.
[86] [2020] AATA 4167, at [83].
The new evidence that has been obtained by the respondent is referenced in the Respondent's Statement of Facts, Issues and Contentions dated 8 August 2018. If the respondent wishes to rely on the Hannaford decision, it would have been appropriate for such a contention to have been then contained in the Respondent's Statement of Facts, Issues and Contentions. If the applicant had been provided with such a contention at the time of the lodgement of the Respondent's Statement of Facts, Issues and Contentions, then the applicant could have taken advice on the possible risk that she may have faced if the Hannaford decision had been applied by the Tribunal. It may well have been the case that the applicant could have considered whether to withdraw her application. If the Tribunal had decided to apply the Hannaford decision, the applicant may have faced a significant financial liability. In my opinion it is not fair for the respondent to raise the possible application of the Hannaford decision after the hearing of the application. I have come to this decision having regard to the statutory direction to the Tribunal to provide a mechanism of review that is, inter alia, “fair”.[87]
[87] Administrative Appeals Tribunal Act 1975 (Cth) paragraph 2A(b).
Physical condition
I have earlier mentioned that there were a number of lay witnesses called to give evidence before the Tribunal. A number of lay witnesses were related to the applicant and could be expected to have observed the applicant at various times. The tenor of their evidence was that the life of the applicant had changed after the 2008 workplace injury. The first time that one of her sons (Mr Adrian Leary) had seen the applicant after her injury was in 2010 when she was using a walking stick and using strong pain medication. One of the work colleagues of the applicant (Mr Howard) had stated that the work incident had consumed the life of the applicant. The husband of the applicant (Mr Barry Crick) in his statement (at [10]) had stated that the applicant was not badly hurt after her car accident in 2006. While I accept that these lay witnesses gave evidence to the best of their recollection, it is apparent that the lay witnesses were not fully aware of the pain and discomfort that the applicant had experienced after her car accident in 2006.
There is evidence before the Tribunal that the applicant had experienced considerable pain after her car accident in 2006. This is evident from a Port Hedland Hospital orthopaedic treatment plan in September 2007 which records: “car accident December 06. Back pain and hip pain since”. A diagnostic imaging report from 24 September 2007 refers to the applicant experiencing “low back pain radiating to the hip joints with lower spinal tenderness”. On 27 November 2007 the applicant attended the hospital at Port Hedland Hospital and the record of her then visit refers to a lower back injury that occurred at work and her experiences of back pain after her car accident. One medical record from that date refers to the severe pain then experienced by the applicant. On 27 February 2018, Mr Hardcastle reported that the pain of the applicant is “constant”, being aggravated by sitting, walking and bending, and that the pain still radiated into the hips. It was mentioned that the facet block at L5-S1 only gave the applicant two days’ relief. Mr Hardcastle also reported that the applicant had to take regular medication in the form of Panadeine Forte every 2-3 nights. This contemporaneous report directly contradicts the assertion of the applicant in her statement of 21 August 2019 that, following her car accident, the pain in her right lumbar-sacroiliac region was not severe enough to require analgesia. In the circumstances, I do not give any weight to her assertion that she did not require analgesia after the car accident. I have come to the conclusion that the applicant was experiencing both back pain and hip pain after her car accident in 2006 and that the pain was certainly severe enough to require a facet block procedure as well as medication to relieve her pain.

Dr Steadman in his report of 5 January 2018 provided his opinion that the surgery that was performed on the applicant was not related to the 2008 work injury. In his report Dr Steadman remarked: “I would not be of the opinion that she had surgery for a work-related injury, but for persistent degenerative disease”. Dr Steadman explained that although the condition presents as one medical continuum, the issue is about initial causation in relation to the mechanism and the co-pathologies which were present in 2008 at around the time of the injury and/or potentiality the contribution of the 2004 and 2006 injuries.
There are several reasons why I give the opinion of Dr Steadman great weight. Although Dr Steadman was cross-examined at the hearing, his opinion that the surgery that was performed on the applicant was not related to the 2008 work injury was not challenged by the applicant, his opinion is therefore unchallenged evidence from a senior specialist. The opinion of Dr Steadman was also informed by the medical documentation referred to in his report, in particular he made a close examination of the radiological evidence. The opinion of Dr Steadman that the surgery that was performed on the applicant was not related to the 2008 work injury is certainly consistent with the opinion of Dr Labrom who in his report of 28 July 2009 then gave his opinion that the incident on 10 June 2008 contributed little or no effect to her then current condition and that the effects of the incident has “likely ceased”. I give this contemporaneous medical evidence by Dr Labrom some weight as the examination by Dr Labrom was made in April 2009 within a year after the workplace injury and after the applicant had an injury on a bus. Before Dr Campbell gave his report on 16 May 2018 he was briefed with a number of documents including the 5 January 2018 report of Dr Steadman. Dr Campbell in his report of 16 May 2018 did not question the opinion of Dr Steadman. Also, in giving evidence Dr Campbell did not express any opinion on the report of Dr Steadman. Dr Campbell has not in any respect contradicted the report of Dr Steadman.
I therefore agree with the conclusion of Dr Steadman that the surgery was performed on the applicant was done for the reason of "persistent degenerative disease" and not for a "work related injury". At the time of the compilation of his latest report, Dr Steadman had not seen the contemporaneous medical records including the Western Australia records. In re-examination, Dr Steadman remarked that the view that the ''West Australian information ... completely confirms the view” that he had previously expressed.
The fact that the surgery that was performed on the applicant was not successful has been raised by the applicant. Dr Carr-Brown, the treating medical practitioner of the applicant, in her report of 12 February 2017, has opined that the surgery resulted in complications which were the ongoing footdrop, paraesthesia and some back pain. Under cross-examination Dr Steadman accepted that it was reported that the surgery caused a significant functional deterioration of the symptoms as well as problems. Dr Campbell quite properly adverted to the controversial nature of the procedure by remarking that “fusion surgery is often driven by patients who think they need it and surgeons who are happy to oblige, otherwise the operation probably wouldn’t survive” Dr Campbell in his report of 29 August 2019, referred to the development of left foot drop after the surgery. However, there is evidence before me that the surgery did not impede the ability of the applicant to return to work. Dr Navin had on 8 December 2016 reported that the applicant was able to move comfortably around the examination room without any evident distress, and that the applicant was emphatic that she had the capacity and desire to return to work. Dr Navin then considered that the applicant was fit to return to work on a graduated basis.
I have considered whether any harmful consequences of the surgery on the applicant can be regarded as an injury for the purposes of the Act. I accept the assessment of Dr Labrom who on 28 July 2009 reported that the effects of the 2008 work injury had ceased. I have also accepted the assessment of Dr Steadman that the surgery was performed on the applicant was done for the reason of "persistent degenerative disease" and not for a "work related injury”.
I have a number of reasons for why I accept the assessment of Dr Steadman that the surgery that was performed on the applicant was unrelated to the 2008 work injury. Dr Leong had given his opinion, which was not challenged, that the effects of the 2008 workplace injury had ceased prior to the surgeries. Prior to the 2008 workplace incident the applicant had constant back pain which can be attributed to the car accident. Mr Hardcastle stated that the facet block injection at L5-S1 had given the applicant only two days of pain relief. Before that workplace incident there was radiological evidence in the form of a CT scan taken in 2007 which recorded a disc protrusion at the L4-L5 level and a disc bulge at the L5-S1 level. Also, before that workplace incident there was a recommendation from Mr Hardcastle who, on 27 February 2018, had stated that he considered that the applicant would need to have an assessment to have spinal fusion from L4-S1 given the progressive nature of her symptoms. The need of the applicant to have back surgery was therefore recognised before the 2008 fall incident.
I therefore find that the surgery that was performed on the applicant cannot be regarded as having been performed for the purpose of treatment of the 2008 workplace injury for the purposes of subparagraph 6(1)(f)(ii) of the Act. In making this finding I have relied upon the assessment of Dr Steadman that the surgery was unrelated to the 2008 work injury. There is no cogent evidence before me that the surgery was medical treatment for the 2008 work injury.
Dr Campbell in his reports of 13 September 2017 and 16 May 2018 opined that the workplace incident on 10 June 2008 has been a contributing factor to the condition of the applicant. In his report of 16 May 2018, Dr Campbell remarked that he considered that 70% of any present impairment was attributable to the "computer stumble incident pre-existing back condition". Dr Campbell considered that as a result of the surgery and the development of left foot drop, the applicant would not be able to return to work. Dr Campbell reported that this was due to “chronic pain and reduced mobility". During the cross examination of Dr Campbell, the previous medical history of the applicant was put to Dr Campbell. During his cross-examination Dr Campbell revised his opinion by stating that there should instead be a 30%/70% apportionment of the applicant’s symptoms as between the "computer cable stumble" incident and the applicant's pre-existing condition. Dr Campbell then remarked that the need for the appellant to undergo surgery on her spine should be apportioned 70%/30% as against the underlying condition and the computer cable incident. Dr Campbell was asked why he had attributed 30% of the applicant’s present condition to the work incident; he answered that the applicant had been undertaking full-time duties up until the time of the work injury and that this was why he stated that there has to be a “a fair bit of weight" attributed to the work injury. However, the applicant did not cease work after the 2008 work incident but only after her surgery in 2012.
As I earlier mentioned, the applicant contended that she was unable to work full-time following the 2008 fall injury, a fact upon which Dr Campbell’s attribution of 30% of the applicant’s symptoms to the work-related injury was based.[88] However, this is not consistent with the evidence of the applicant in her statement where she stated that: “Prior to my surgery, I had maintained my full-time workload, albeit utilising flexible working arrangements. Despite my pain, my career was progressing well and, at the time of the surgery, I had just completed 3 months as an acting commissioner”.[89]
[88] Applicant’s reply to the respondent’s submissions dated 22 November 2019, at [12].
[89] Exhibit F, at [42].
In the circumstances I have concluded that Dr Campbell had not been informed of the employment history of the applicant and had been under the mistaken assumption that the applicant had ceased full-time work after the 2008 work incident. I accordingly do not accept the opinion of Dr Campbell that 30% of the impairment of the applicant should be attributed to the 2008 work incident because he has assumed that the applicant was not able to work full-time after that incident. It is apparent from the evidence before me that the applicant had ceased work only after her surgery in 2012. The applicant’s husband had also confirmed that the applicant had continued to work after the 2008 workplace incident.
I also do not accept the assessment of Dr Campbell in 2018 that the applicant was then unable to return to work. This is because earlier, in 2016, Dr Navin had reported that the applicant was emphatic that she had the capacity and desire to return to work. Dr Campbell did not question the conclusion of Dr Navin who relied upon the statement of the applicant that she was able to return to work. I give great weight to this assessment of Dr Navin as it is supported by the statement of the applicant who was willing to go to work. Dr Navin had also assessed that the applicant was also able to move comfortably around the room.
I do not draw any adverse finding against the applicant having regard to the differences in presentation between her presentation to Dr Steadman and her presentation as recorded on the video surveillance. Dr Steadman, in giving evidence, quite properly agreed that the functional capacity of the applicant as viewed on the video surveillance is partially dependent upon how effective the medication that the applicant was taking at the relevant time so that, if she was on a lot of medication, that could help her manage her symptoms. Dr Steadman also agreed that the functional capacity of the applicant was also dependent upon how effective the spinal cord stimulator was, in conjunction with the medication that she was taking. There was no evidence before the Tribunal as to what specific medication, if any, the applicant was taking when she was under video surveillance.
Psychiatric Condition
In its closing written submissions, the respondent submitted:[90]
Some other features of the applicant’s submissions are also worthy of initial comment. These submissions are silent on an continuing entitlement to benefits in respect of the applicant’s earlier psychiatric claim. The respondent will not proceed on the assumption that this portion of the claim has been abandoned and make full submissions on this issue…
[90] Submissions on behalf of the respondent dated 15 November 2019, at [14].
In her reply to the respondent’s submissions, the applicant stated: “To clarify, the Applicant withdraws her appeal regarding her psychiatric injury”.[91] This is in contrast to the submissions of the applicant prior to the hearing that the respondent is liable to pay compensation to the applicant in respect of (all of) the applicant’s claimed injuries.[92]
[91] Applicant’s reply to the respondent’s submissions dated 22 November 2019, at [7].
[92] Applicant’s Statement of Facts, Issues and Contentions dated 12 July 2018, pp. 6-7.
In respect of these submissions, I make the following observations.
First, the decision under review in this application concerns four injuries in respect of which the respondent had previously accepted liability to pay compensation to the applicant under the Act. Those four injuries are listed in the first paragraph of the determination of 8 March 2017. The respondent, in that decision, decided that, from that date, it was no longer liable to pay compensation to the applicant in respect of those four injuries. The function of this Tribunal in conducting a hearing de novo extends to reviewing the entire reviewable decision of the respondent.[93]
[93] See for example: Smedley and Repatration Commission (1988) 16 ALD 574 (Administrative Appeals Tribunal); Cranswick and Repatriation Commission (1988) 15 ALD 459 at 468; Commonwealth of Australia v Ford (1985) 9 ALD 433 (Federal Court of Australia); Scheuler and Australian National Railways Commission (1988) 14 ALD 518 (Administrative Appeals Tribunal).
Secondly, the applicant called Dr Leong, Consultant Psychiatrist to give evidence at the hearing. As I earlier mentioned, the applicant did not avail herself of the opportunity to cross-examine Dr Shaikh.
Thirdly, the applicant did not dispute the closing submissions of the respondent in respect of the psychiatric condition of the applicant.
The applicant no longer appears to assert that the Tribunal should decide that she continues to suffer from a compensable psychiatric condition.
Notwithstanding that the applicant appears to be attempting to discontinue her claim in respect of the psychiatric condition, I consider that the applicant’s psychiatric claim is nevertheless properly within the jurisdiction of the Tribunal in this application and must be addressed in this decision. The psychiatric condition of the applicant was considered alongside with her physical conditions in a single determination made by the respondent on 8 March 2017. At the hearing, the Tribunal heard evidence from a number of expert witnesses for both parties, including two well-respected psychiatrists who gave evidence as to the applicant’s psychiatric condition. I therefore do not consider it is appropriate in the circumstances, after the hearing of the application, to exercise the discretion under subsection 25(4A) of the Administrative Appeals Tribunal Act 1975 (Cth) to limit the scope of the review to only the physical conditions. I take the applicant’s ‘withdrawal’ of the psychiatric claim to be an indication that the applicant does not contest the submissions or evidence put forward by the respondent in respect of that claim. I will therefore proceed to consider the psychiatric condition of the applicant having regard to the evidence before me.
In considering the psychiatric symptoms of the applicant, there are two workplace events of significance. The first incident was on 10 June 2008 when the applicant was injured at work (the 2008 fall). The second incident was the termination of her employment in 2014 (the psychiatric (termination) injury).
I find that the applicant does not continue to suffer psychiatric symptoms as a result of the first incident on 10 June 2008 when she was injured at work. The applicant consulted Dr Leong for an opinion for the purpose of this application. Dr Leong in his report of 11 September 2017 has stated that, in his opinion, the applicant’s psychiatric condition as it relates to her work-related physical injury of 10 June 2008 was not contributing to a significant degree to her ongoing psychiatric symptoms and resulting work incapacity. I am satisfied that the opinion of Dr Leong was made after a careful consideration of the history of the applicant. The opinion of Dr Leong is consistent with the unchallenged opinion of Dr Shaikh who in his report of 28 February 2018 remarked that any psychiatric condition that was suffered in response to the 2008 fall event is likely to have resolved.
When Dr Leong was giving evidence, it was put to him by the applicant that the termination of the applicant in 2014 affected the psychological resilience of the applicant to deal with pain which flowed from the 2008 incident. However, when Dr Leong was cross-examined, he agreed that the history that he took from the applicant during their consultation in September 2017 did not refer to the termination of the applicant affecting her resilience to pain. I have accordingly concluded that there is no basis for me to find that the termination of the applicant affected the psychological resilience of the applicant to deal with pain which flowed from the 2008 fall incident.
I have considered the termination of the employment of the applicant in 2014. There have been two determinations which relate to the termination of the employment of the applicant. On 4 April 2014, a determination was made in relation to an adjustment reaction caused by a termination notice in June 2014. Under that determination the applicant was entitled to medical expenses until 15 April 2014 and for time away from work until 20 April 2014. The determination of 2 March 2015 relates to the secondary condition being an adjustment disorder arising from pain after the back surgery. The determination of 2 March 2015 also re-defined the acceptance of liability for an adjustment reaction caused by the termination in 2014 to be instead be an acceptance of liability for an aggravation of the earlier accepted adjustment reaction condition.
I certainly consider that the termination of the employment of the applicant in 2014 was a significant event in causing psychiatric symptoms to the applicant. In giving evidence, the applicant had agreed with the assessment of Dr Leong in his report dated 14 September 2017 concerning the effect of the purported termination of notice on the applicant:
She felt extremely betrayed and unsupported by her employer. Felt dejected and rejected and not wanted by the ATO where she’d worked and dedicated her life for more than 20 years following which she emotionally decompensated psychiatrically.
The notice of termination of employment of the applicant was given on 10 January 2014. On 14 January 2014 the applicant expressed dissatisfaction with the notice of termination. On 24 January 2014 the employer revoked the notice of termination of employment. Under cross-examination, the applicant had maintained that the revocation of the notice of termination had not dissipated her psychiatric symptoms. However, I consider that her psychiatric symptoms had certainly ceased by March 2016 when the applicant was assessed by Dr Jetnikoff.
In March 2016 the applicant had a psychiatric assessment when she attended the rooms of Dr Jetnikoff. Dr Jetnikoff wrote a comprehensive report dated 17 March 2016. In his report Dr Jetnikoff expressed his opinion that the applicant had no psychiatric disorder which was then active. Dr Jetnikoff provided cogent reasons as to why the applicant had no psychiatric disorder, he stated that the applicant had no significant symptoms of a psychiatric disorder and the physical injuries of the applicant had stabilised. Dr Jetnikoff stated that the applicant was euthymic in mood, positive about her return to work and enthusiastic about her recovery. Dr Jetnikoff provided his report after consultation with Dr Navin. The general practitioner of the applicant also considered that the applicant was fit to take part in a return to work program. I accept the conclusion of Dr Jetnikoff that the applicant did not have a psychiatric disorder when he examined her in 2016.
After Dr Jetnikoff had completed his assessment in 2016, the next significant event in the history of the applicant appears to be the decision of the respondent in March 2017 to cease paying compensation to the applicant in respect of the accepted injuries.
Dr Leong, in his report of 11 September 2017, has opined that the applicant had ongoing partial incapacity for work from a psychiatric perspective as a result of the termination of employment in January 2014. His report refers to the fact that the notice of termination of employment was revoked two weeks after the notice was issued. Dr Leong in giving evidence stated that he had not been advised of the decision by the respondent to cease making payments of compensation. Dr Leong in being cross-examined was asked whether he accepted the proposition that the respondent’s decision to withdraw her compensation benefits in early 2017 would be likely to have a similar effect upon her psychiatric health as the termination notice. Dr Leong remarked: “Yes, I think that would be a significant - I mean, first you’ve got termination of employment, and then subsequent termination of entitlements. And it’s this sort of the final nail in the coffin, so to speak… I believe that would be quite a significant issue”.

I do not accept the opinion of Dr Leong that any psychiatric symptoms that the applicant then experienced at the time of the examination in September 2017 were as a result of the termination of employment in January 2014. This is because prior to the applicant being notified of the termination of entitlements in early 2017, there is cogent evidence that the applicant did not have an active psychiatric condition. I have earlier mentioned that I accept the conclusion of Dr Jetnikoff who, in March 2016, reported that the applicant did not have an active psychiatric condition. If the applicant had developed psychiatric symptoms by 2017 it is plausible that the notification of the termination of entitlements would have caused those symptoms. There was certainly no evidence before the Tribunal of any other event at that time which would have caused psychiatric symptoms. Dr Leong stated that he did not disagree with Dr Shaikh’s expression of opinion regarding the likely effect of the termination of entitlements in early 2017 on the psychiatric health of the applicant. However, even if the decision of the respondent to cease payment of compensation entitlements has affected the mental health of the applicant to the extent she has suffered a psychiatric injury, compensation is not payable under the Act because such an injury did not arise from the employment of the applicant (the Act, section 5A), nor was it contributed to, to a significant degree, by that employment (the Act, section 5B).
I consider that compensation is not payable under the Act in respect of an injury which is a result of a determination by the respondent to cease payment of compensation. In Federal Broom Co Pty Ltd v Semlitch,[94] in a judgment relating to a claim under the Workers' Compensation Act 1926 (NSW), Windeyer J observed at 641 that:
When the Act speaks of "the employment" as a contributing factor it refers not to the fact of being employed, but to what the worker in fact does in his employment. The contributing factor must in my opinion be either some event or occurrence in the course of the employment or some characteristic of the work performed or the conditions in which it was performed.
These observations of Windeyer J have been applied in decisions of this Tribunal under the Act to guide consideration of whether a causative factor falls within the scope of the word “employment” for the purposes of the Act.[95] I therefore accept the submission of the respondent that any injury caused by the cessation of payment of compensation is not compensable under the Act as it is not within the scope of the “employment” of the applicant.
[94] (1964) 110 CLR 626 (High Court of Australia).
[95] See, for example: Taylor and Comcare [2017] AATA 1327 at [82] (Senior Member Toohey); Perkins and Comcare [2018] AATA 3010 (Deputy President Sosso).
I have earlier mentioned that the applicant had elected not to cross examine Dr Shaikh. This has the consequence that the opinion of Dr Shaikh that the applicant is no longer suffering from an earlier accepted psychiatric condition is unchallenged evidence. The opinion of Dr Shaikh is also consistent with the opinion of other specialists. In 2016, Dr Jetnikoff gave his opinion that the applicant was no longer suffering any active psychiatric disorder. Dr Shaikh, in his report of 28 February 2018, has stated that it is difficult to justify the presence of a psychiatric condition particularly as the applicant was not being treated for a psychiatric condition. I accept this assessment as there is no cogent evidence that the applicant is in fact being treated for a psychiatric condition. I also accept the evidence of Dr Shaikh that there are certainly inconsistencies in the presentation of the applicant who told Dr Shaikh in December 2017 that she had withdrawn from social arrangements. The assessment of Dr Shaikh that the video surveillance of the applicant in September 2017 suggested reasonable social engagements was unchallenged, other than to note it is in contrast to the explanation provided in response to Dr Shaikh by the applicant in her statement.[96] Dr Shaikh was not cross-examined, his opinion that there was a relationship between any psychological symptoms and her surgery was not challenged.
[96] Exhibit F, at [154].
The applicant has stated that her employment has again been terminated on 20 August 2019.[97] The reports of the psychiatric specialists were made prior to the notice of termination the applicant received on 20 August 2019 and there has as yet been no expert evidence, nor any contention, as to whether that notice of termination has affected the psychiatric symptoms of the applicant.
[97] Exhibit F, at [82].
I am of the opinion that there is no cogent evidence that the applicant continues to suffer from the earlier accepted psychiatric condition.
DECISION
I affirm the decision under review

191. I certify that the preceding 190 (One hundred and ninety) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr P McDermott RFD

…………………………………………..
Associate
Dated: 9 November 2020

Dates of Hearing: 2-4 September 2019

Final Submissions Received: 22 November 2019

Solicitor for the Applicant: Ms Jessica Hodge, Hall Payne Lawyers

Counsel for the Applicant: Mr Gerard O’Driscoll

Solicitor for the Respondent: Ms Francesca O’Reilly, Moray & Agnew Lawyers

Counsel for the Respondent: Mr Charles Clark

Dates of Hearing:	2-4 September 2019
Final Submissions Received:	22 November 2019
Solicitor for the Applicant:	Ms Jessica Hodge, Hall Payne Lawyers
Counsel for the Applicant:	Mr Gerard O’Driscoll
Solicitor for the Respondent:	Ms Francesca O’Reilly, Moray & Agnew Lawyers
Counsel for the Respondent:	Mr Charles Clark