David O'Connell and Comcare
[2012] AATA 532
[2012] AATA 532
Division GENERAL ADMINISTRATIVE DIVISION File Numbers
2011/2534, 2536, 2537 & 2539
Re
David O'Connell
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal Mr S. Webb, Member
Date 13 August 2012 Place Canberra
The reviewable decisions in applications 2011/2534, 2536 and 2539 are affirmed.
The reviewable decision in application 2011/2537 is set aside and in place thereof the Tribunal decides that the degree of Mr O'Connell's permanent impairment resulting from his psychological injury is 25 percent.
The matter is remitted to Comcare to determine the amount of compensation that is payable.
The parties have 14 days in which to file submissions in respect of orders for costs, with liberty to apply to be heard orally.
......................[sgd].........................................
Mr S. Webb, Member
WORKERS COMPENSATION – accepted right upper limb injury – permanent impairment – assessment of functional loss – requirement for one major and two minor criteria for a 10 percent assessment not satisfied – decision affirmed
WORKERS COMPENSATION - accepted psychological injury - post traumatic stress disorder – previously permanent impairment 10 percent – additional compensation claimed – degree of impairment – incremental criteria - need for some supervision and direction in activities of daily living – impairment of psychosocial functioning – supervision and direction – decision set aside
WORKERS COMPENSATION – low back injury claim – injury said to arise from therapeutic treatment in respect of a right upper limb injury – imprecise evidence as to onset of symptoms – not established that frank or aggravation injury occurred – decision affirmed
Safety, Rehabilitation and Compensation Act 1988, ss 4, 5A, 14, 24, 67
Abrahams v Comcare [2006] FCA 1829
Australian Postal Corporation v Sellick [2008] FCA 236
Re Brice and Comcare [2007] AATA 1476
Canute v Comcare [2006] HCA 4
Comcare v Emery (1993) 32 ALD 147
Re Dean and Military Rehabilitation and Compensation Commission [2010] AATA 388
Re Emery and Comcare (1992) 15 AAR 477
Frosch v Comcare [2004] FCA 1642
Re Kermode and Military Rehabilitation and Compensation Commission [2012] AATA 188
Re Sat and Comcare [2004] AATA 334
Sellick v Australian Postal Corporation [2009] FCAFC 146REASONS FOR DECISION
Mr S. Webb, Member
13 August 2012
David O’Connell was injured in his employment by the Australian Federal Police. Comcare accepted liability for a right arm injury and a psychological injury – post traumatic stress disorder. Mr O’Connell claimed and was paid compensation for a 10 percent permanent impairment in respect of his PTSD injury. Later, Mr O’Connell claimed additional permanent impairment compensation in respect of this injury, as well as compensation for permanent impairments resulting from his right arm injury and an alleged injury to his lower back. These claims were denied by primary determination and on reconsideration by Comcare. Mr O’Connell applied for review.
At the outset of the hearing I was informed that Mr O’Connell did not intend pressing his claim for permanent impairment compensation in respect of a lower back injury. Having reviewed the evidence, this is an appropriate concession that can readily be accepted. Mr O’Connell’s concession means that the reviewable decision in application 2011/2536 will be affirmed insofar as it addresses compensation for permanent impairment resulting from his claimed lower back injury.
In reference to this back injury claim, which Mr O’Connell relies on as a claim for threshold liability under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (the Act), I was informed that Comcare did not intend pressing any issue relating to notice under s 53 at this late stage. As will appear, even though the Tribunal is not bound by any concession made by a party and the parties have not been fully heard on this point, it is not necessary to address issues relating to s 53 in any detail as Mr O’Connell’s back injury claim is determined on other grounds. Thus, even though Mr O’Connell asserts that he injured his lower back several years ago while undertaking exercise during a rehabilitation program and he gave no notice and made no claim until lodging the claim for permanent impairment compensation on 23 July 2010, it is not necessary for me to go any further with this point.
The issues remaining to be decided, therefore, are
(a)whether Mr O’Connell is entitled to:
(i)compensation for permanent impairment resulting from his right arm injury;
(ii)additional compensation for permanent impairment resulting from his PTSD injury; and
(b)whether Comcare is liable for an injury to Mr O’Connell’s lower back.
Right Arm
The parties informed me that there is no dispute that Mr O’Connell suffers from an impairment resulting from his right arm injury and that the impairment is permanent. This is consistent with the evidence and I accept the concessions made. Furthermore, it is agreed that the degree of the impairment is to be assessed using Table 9.14 of the 2nd edition of the Guide to the Assessment of the Degree of Permanent Impairment prepared by Comcare and approved by the Minister under s 28 (the Comcare Guide). This, too, is consistent with the present evidence and can be accepted. The only issue is whether the permanent impairment resulting from Mr O’Connell’s right arm injury satisfies the criteria applying to the 10 percent level of assessment.
Mr O’Connell says that he satisfies the assessment criteria at the 10 percent level of impairment under Table 9.14. He asserts that he is right-hand dominant and suffers a moderate loss of digital dexterity as a result of his accepted injury. Furthermore, he maintains that he suffers moderate limitations on the use of his right upper limb for personal care and is impaired to the extent that he cannot write more than half an A4 page without resting, and he dresses slowly without assistance.
In Mr O’Connell’s submission these impairments constitute a 10 percent whole person impairment and the decision under review should be set aside.
At the 10 percent level of impairment in the dominant upper limb, Table 9.14 requires that one major criterion and at least two minor criteria are satisfied. The major criteria are
“Moderate loss of digital dexterity” and “Moderate limitations in use of extremity for personal care”. The minor criteria are “Rests after writing half an A4 page”, “Cannot lift more than 10 kilograms”, “Cannot do up shoelaces”, “Cannot join paperclip” and “Dresses slowly unassisted”. The instructions to Table 9.14 provide that:
Where possible, the major criteria should be assessed on the basis of neurological examination of motor strength, co-ordination and dexterity. Where possible, functional activities should be assessed by observation of the specified activities.
Dr Davis, a consultant surgeon, reported that Mr O’Connell had “a full range of movement of all joints of [sic] shoulder, elbow, wrist, fingers and thumb” in his right upper limb[1], but concluded that Mr O’Connell “demonstrated a moderate loss of digital dexterity with a moderate limitation in the use of [the right upper] extremity for personal care as well as had to rest after writing half an A4 page”, justifying a 10 percent assessment under Table 9.14[2]. When examined on these points, Dr Davis explained that he tested digital dexterity by asking Mr O’Connell to pick up a small object, some kind of pin he thought, from the desk; and Mr O’Connell experienced some difficulty doing this. Under cross-examination, Dr Davis conceded that he did not conduct any other testing in respect of major criteria and he did not observe Mr O’Connell undertaking any other functional activities, but rather relied on what Mr O’Connell told him about difficulty shaving and doing his hair. Dr Davis said that “I didn’t ask him specifically about doing and undoing buttons but he did mention as far as doing laces up, and that sort of thing. And that, in my view, covered impairment of personal care”[3].
[1] Exhibit A2, 16 November 2011 report, page 4.
[2] Ibid, page 8.
[3] Transcript, 2 May 2012, page 42.
Associate Professor Barnsley, a consultant rheumatologist, reported that Mr O’Connell “had a full and painless range of movement in the fingers, thumbs, wrists, elbows and shoulders”, although there was “some pain reproduction on vigorous handgrip”[4]. With regard to assessment of the degree of impairment in Mr O’Connell’s dominant right upper limb, Associate Professor Barnsley reported a 0 percent assessment under Table 9.14, noting that:
… he has no limitations in the use of the extremity for personal care but does have minor loss of digital dexterity. However, I would stress that when I observed him he had no problems with digital dexterity. I observed him write half an A4 page without problems. He indicated that he could lift at least 20kg. He had no problems joining and unjoining paperclips.[5]
[4] T311 folio 652.
[5] T311 folio 654.
The evidence of Mr O’Connell when examined in chief on this point is that he could write a full A4 page, but he would have difficulty writing a second one[6]. This is consistent with the evidence of his partner, Sheryl Gardiner[7].
[6] Transcript, 1 May 2012, page 26.
[7] Exhibit A3, page 3.
On balance, the evidence does not establish that Mr O’Connell’s dominant upper limb impairment satisfies the criteria applying at the 10 percent level. I am not satisfied that he suffers from a moderate loss of digital dexterity – experiencing some difficulty picking up a pin of some kind from a desk does not properly establish an impairment of that degree. To my mind, this is more consistent with Associate Professor Barnsley’s assessment of a minor loss of digital dexterity. There is no compelling or sufficient evidence to establish that Mr O’Connell experiences moderate limitations in use of his right upper limb for personal care. Dr Davis’ assessment on this point is not robust or supported by observation or clinical findings. Associate Professor Barnsley’s evidence is preferred – his assessment is supported by and consistent with his clinical findings and observations.
On the present evidence, it is not clear whether Mr O’Connell’s dominant upper limb impairment meets the criteria applying at the 0 percent or five percent levels. Associate Professor Barnsley’s assessment is a 0 percent whole person impairment, which I accept, although if it is accepted that Mr O’Connell experiences difficulties tying shoelaces, as Dr Davis implies, then he may have a five percent whole person impairment.
In either case, Mr O’Connell does not qualify for permanent impairment compensation in respect of his right upper limb and the decision under review in application 2011/2539 must be affirmed.
PTSD
There is no issue that Mr O’Connell’s PTSD injury has resulted in a permanent impairment and that he was paid compensation for a whole person impairment of 10 percent under Table 5.1 of the Guide.
Mr O’Connell asserts that he satisfies the assessment criteria for a 25 percent whole person impairment under Table 5.1. He says he needs some supervision and direction in activities of daily living that he obtains from Ms Gardiner, Mr Goch, his treating psychologist, and Dr Saboisky, his treating psychiatrist from 1995. Mr O’Connell asserts that he suffers from each of the specified impairment criteria set out at the 25 percent level.
Comcare says that Mr O’Connell does not satisfy the assessment criteria at either the 20 percent or 25 percent levels under Table 5.1 because he does not need some supervision and direction in activities of daily living. In Comcare’s submission, encouragement by a partner to undertake activities of daily living, such as showering, scheduling activities or socialising, is simply a response to poor motivation that is not consistent with a need for some supervision and direction in activities of daily living. Comcare says that relying on Ms Gardiner to run the household does not rise to the level of any supervision and direction whatsoever in respect of Mr O’Connell’s performance of activities of daily living. Comcare says that Mr O’Connell’s poor motivation may have a number of causes, day to day, that cannot simply be attributed to his PTSD injury.
In Comcare’s submission, there is no compelling evidence that Mr Goch or Dr Saboisky provide any direction to Mr O’Connell in respect of activities of daily living, or that this is required or needed. Comcare asserts that obtaining psychological or psychiatric treatment should not be misconstrued as a need for supervision and direction in relation to activities of daily living. Mr Goch, Comcare says, does not expressly refer to providing Mr O’Connell with direction in respect of those activities and, for reasons that are not clear, he was not expressly asked to report on this point by those representing Mr O’Connell. In Comcare’s submission significant weight should be given to Dr Saboisky’s evidence that Mr O’Connell does not need supervision and direction in relation to activities of daily living, as those terms are used in the Comcare Guide.
Comcare asserts that Mr O’Connell is able to undertake the activities of daily living without supervision or direction. Comcare points to the fact that Mr O’Connell drives Ms Gardiner to work in the morning and he picks her up at night, noting that Ms Gardiner works long hours, commonly from 7.30am to 6.00pm, often working later and on weekends, during which Mr O’Connell is alone. Comcare says that Mr O’Connell lived by himself prior to meeting Ms Gardiner without needing supervision or direction with activities of daily living; a messy house does not prove the contrary. He did so again for a two-week period in 2010, during a period of difficulty between he and Ms Gardiner, and he drove himself to Coffs Harbour to care for his sister for a month without apparent difficulty.
In Comcare’s submission these facts demonstrate that Mr O’Connell does not require any amount of supervision and direction in activities of daily living. It follows, so the argument goes, that he cannot satisfy the criteria applying at the 20 percent or 25 percent levels of whole person impairment under Table 5.1.
There is some force to these submissions, but the conclusion contended for is not the preferable conclusion on the present evidence.
The degree of Mr O’Connell’s psychological impairment is to be determined by applying Chapter 5 of the Comcare Guide. As can be seen from the Introduction to that Chapter, regard must be had to the Principles of Assessment and to the definitions set out in the Glossary. In order to qualify for an additional amount of permanent impairment compensation in respect of his PTSD injury, under s 25(4) it must be shown that the degree of Mr O’Connell’s impairment has increased by at least 10 percent. As the previous assessment (and award of compensation) was at the 10 percent level of impairment, it follows that, for further compensation to be payable, the degree of his impairment must at least meet the criteria applying at the 20 percent level in Table 5.1.
While Mr O’Connell’s case sharply focuses attention on the criteria applying at the 20 and 25 percent levels, it is important to consider the relativity of criteria at different levels in Table 5.1 when assessing the degree of permanent impairment in a case such as this. This is also necessary, in order to properly address the submissions of the parties.
Table 5.1 sets out a graded scale of degrees of impairment that are measured by whole person impairment percentages. As can be seen, the degree of impairment increases incrementally in relation to specific criteria which appear at more than one level. The specific criteria applying at the five percent and 10 percent levels are the same, but the incremental difference is the number of specific criteria that must be met. The same methodology applies to the criteria applying at the 15, 20 and 25 percent levels, to the 30 and 40 percent levels, and to the 50 and 60 percent levels. When grouped in this way, Table 5.1 appears as follows:
% WPI
Description of Level of Impairment
0
Reactions to stressors of daily living without loss of personal or social efficiency; and
· Capable of performing Activities of Daily Living without supervision or assistance.
5
Despite the presence of one of the following employee is capable of performing Activities of Daily Living without supervision or assistance:
· reactions to stressors of daily living with minor loss of personal or social efficiency;
· lack of conscience directed behaviour without harm to community or self;
· minor distortions of thinking.
10
Despite the presence of more than one of the following employee is capable of performing Activities of Daily Living without supervision or assistance:
· reactions to stressors of daily living with minor loss of personal or social efficiency;
· lack of conscience directed behaviour without harm to community or self;
· minor distortions of thinking.
15
Any one of the following accompanied by a need for some supervision and direction in Activities of Daily Living:
· reactions to stressors of daily living which cause modification to daily living patterns;
· marked disturbances in thinking;
· definite disturbance in behaviour.
20
Any two of the following accompanied by a need for some supervision and direction in Activities of Daily Living:
· reactions to stressors of daily living which cause modification of daily living patterns;
· marked disturbance in thinking;
· definite disturbance in behaviour.
25
All of the following accompanied by a need for some supervision and direction in Activities of Daily Living:
· reactions to stressors of daily living which cause modification of daily living patterns;
· marked disturbance in thinking;
· definite disturbance in behaviour.
30
Any one of the following accompanied by a need for supervision and direction in Activities of Daily Living:
· hospital discharges who require daily medication or regular therapy to avoid remission;
· loss of self-control and /or inability to learn from experience causing considerable damage to self or community.
40
More than one of the following accompanied by a need for supervision and direction in Activities of Daily Living:
· hospital discharges who require daily medication or regular therapy to avoid remission;
· loss of self-control and /or inability to learn from experience causing considerable damage to self or community.
50
One of the following:
· severe disturbances in thinking and/or behaviour entailing potential or actual harm to self and/or others;
· need for supervision and direction in a confined environment.
60
Both of the following:
· severe disturbances in thinking and/or behaviour entailing potential or actual harm to self and/or others;
· need for supervision and direction in a confined environment.
90
Very severe disturbance in all aspects of thinking and behaviour requiring constant supervision and care in a confined environment, and assistance with all aspects of Activities of Daily Living.
The assessment criteria applying between five and 40 percent (5 and 10 percent; 15, 20 and 25 percent; and 30 and 40 percent) differ in their content in two important ways – each level contains specific psychiatric criteria (set out in dot points), but is preconditioned by a criterion relating to the performance of activities of daily living. Preconditioning criteria relating to the performance of activities of daily living increase according to a hierarchy of need for assistance, supervision and direction – at the five and 10 percent level, the criterion is that the employee is capable of performing activities of daily living without supervision or assistance; at the 15, 20 and 25 percent level, the criterion is a need for some supervision and direction in activities of daily living; and at the 30 and 40 percent level, the criterion is a need for supervision and direction in activities of daily living.
The difference between capability to perform activities of daily living without supervision or assistance, and a need for some supervision and direction in those activities is presently in issue. The words “need for some supervision and direction in the activities of daily living” contain several important concepts, as follows
(a)there must be a ‘need’, that is, something necessary that is lacking, wanting or required, whether or not it is fulfilled[8];
(b)the subject of need is comprised of two conjunctive measures of impairment[9] – supervision and direction -
(iii)by definition, ‘supervision’ is the immediate presence of a ‘suitable person’ who is responsible, in whole or in part, for the care of the employee and who is capable of responsibly caring for the employee in an appropriate way;
(iv)by definition, ‘direction’ is the provision of direction to the employee by a ‘suitably qualified person’ who is responsible, in whole or in part, for the care of the employee and who has the necessary experience and skills to provide appropriate direction to the employee;
(c)the amount or degree of supervision and direction needed is conveyed in the word ‘some’, meaning “any amount at all, even the very minimum”[10], “putting matters of de minimus to one side”[11];
(d)the need for supervision and direction relates to the performance of ‘activities of daily living’ as set out in Figure 5-A, being defined in the Glossary to mean ‘those activities the employee needs to perform in order to function in a non-specific environment (that is, to live)’, but this does not require all, or most, or any particular one of the listed activities to be adversely affected[12]; and
(e)the employee’s performance of activities of daily living is to be measured by reference to primary biological and psychosocial function[13].
[8] Re Dean and Military Rehabilitation and Compensation Commission [2010] AATA 388 at [71].
[9] Comcare v Emery (1993) 32 ALD 147 at 150.
[10] Re Emery and Comcare (1992) 15 AAR 477 at 479.
[11] Comcare v Emery (1993) 32 ALD 147 at 150.
[12] Re Kermode and Military Rehabilitation and Compensation Commission [2012] AATA 188 at [100].
[13] Comcare v Emery (1993) 32 ALD 147 at 151.
Even with a generous construction, the activities of daily living set out in Figure 5-A, as defined, are restrictive. The listed activities are confined to primary biological and psychosocial functions as a standard measure against which the degree of impairment is to be assessed.
The conception of biological and psychosocial function as a measure of performance of activities of daily living is clearly expressed in the Principles of Assessment and the Glossary to the Comcare Guide. But this is not easy to apply. By definition, the activities of daily living are activities a person needs to perform in order to function in a non-specific environment – “that is, to live”. But a person may be able to live without being able to perform one or more, or even all of the activities of daily living listed in Figure 5-A. It is important to note that the employee’s capability to perform those activities is to be measured by primary biological and psychosocial function in order to assess the level of impairment. This formulation takes its meaning from the “whole person” conception that underlies the impairment assessment methodology throughout the Comcare Guide – “The degree of impairment is assessed by reference to the impact of that loss on the normal efficient functioning of the whole person”[14] where “The extent of each impairment is expressed as a percentage value of the functional capacity of a normal healthy person”[15].
[14] Guide to the Assessment of the Degree of Permanent Impairment, 2nd Edition, 2005, page 11.
[15] Ibid, page 16.
A person with an impairment resulting from a psychiatric disorder, who reacts adversely to stresses of daily life and endures marked distortions of thinking as well as definite disturbances in behaviour may, nonetheless, still be biologically capable of performing activities of daily living. But a person’s biological capability to perform activities of daily living, to hear or speak, or to move or exercise in various ways, or to experience touch, or to travel in a car, or to engage in sexual activity for example, is unlikely to provide a meaningful measure of psychosocial function. But psychological impairment cannot properly be assessed on the basis of primary biological functioning alone. More is required when construing this part of Table 5.1 and Chapter 5 of the Comcare Guide - it is also necessary to assess the person’s capability to perform activities of daily living on the basis of primary psychosocial function in order to properly determine the level of impairment.
The concept of primary psychosocial function is not explained in the Comcare Guide. Nevertheless, when the Principles of Assessment are considered, psychosocial function can be understood to mean the psychological and social functioning of the whole person in the performance of activities of daily living. The word ‘primary’ conditions this meaning. While open to a number of interpretations, when the ordinary meaning of the word in common usage is considered[16], ‘primary’ in this context simply refers to first order functions that are basic to other aspects of biological or psychosocial function.
[16] See Oxford English Dictionary, Online Edition, 2012, for example.
Thus, for example, in relation to hearing: the primary psychosocial function of hearing may be described in terms of a person’s ability to communicate using their auditory faculty, receiving information aurally, through spoken language for example. If this ability is reduced by a psychiatric disorder, where spoken words may be heard but without comprehension for example, it may well be that the person’s primary psychosocial function of communication by hearing is impaired, even though the person may be biologically able to hear. Similarly, the primary psychosocial function of reading and writing may be described in terms of communication using written language, receiving or conveying information in writing. If a person’s ability to do these things is adversely affected by a psychiatric disorder, impeding the communication of information, it may be that his or her primary psychosocial function of communication by reading or writing is impaired, even though the person may still have some capability to read and write. A person’s tactile sense may be biologically intact even though the person’s sensory function may be impaired on the basis of primary psychosocial function if the person is prevented from touching other people or certain objects as the result of a psychiatric disorder. Similarly, a person’s sexual function may be impaired if the person’s ability to participate in desired sexual activity is reduced by a psychiatric disorder, even though, physically, there is no impediment to sexual function. These are matters of fact and degree to be determined in the particular circumstances.
Turning to the particular circumstances of Mr O’Connell’s case, the evidence of Mr Goch, Ms Gardiner and Mr O’Connell is that his communication is impaired and he lacks motivation in many aspects of life, including in relation to social or recreational activity, sexual activity and aspects of personal care or hygiene. Ms Gardiner says that[17]
[17] Exhibit A3 pages 2-5.
… I now often have to remind and encourage him to shower and shave…
… David is becoming more and more reclusive and is not motivated to or interested in going out and socialising…
… he can generally not be bothered going out and he is also paranoid that people are watching him or that he might see someone he knew from the police…
… David is very suspicious and untrusting of people he does not know and this restricts his ability to meet and interact with new friends.
David also has difficulties listening to people and hence engaging in meaningful conversations and discussions. During conversations, he often gets distracted and does not listen and is easily confused… he often does not understand simple things I am talking about and I am required to re-explain things numerous times [sic] simplify what I am talking about.
…
If I ask him to do something like pay a bill, I always have to remind him numerous times to do it and I often end up having to do it myself. This is because he forgets and becomes distracted and it simply does not happen.
…
… he only manages by me constantly reminding him and insisting that he does the tasks referred to above.
I am required to read through all of the incoming mail… The reason for this is that David cannot concentrate on the letters and gets very stressed if he receives any letters from Comcare, Comsuper, his solicitors or anything that reminds him of the AFP.
… David cannot fill out forms himself because of his difficulty concentrating and he gets easily stressed by this.
…
I try to get David to exercise regularly…
…
… I am aware that he has a very disrupted sleep…
…our love life is virtually non-existent and we are rarely intimate. This is due to a combination of a lack of motivation on David’s part combined with frustration on my part…
… Whilst we were apart [for 2 weeks], David became even more depressed and did not do anything I am aware of, including, personal hygiene and grooming.
…
I would describe David’s current mental state as being very fragile. He becomes teary easily and is clearly stressed. I worry when I am not with him that he might do something to end his suffering…
Ms Gardiner’s statement was not prepared or tendered before Mr O’Connell gave his oral evidence. Comcare asserts that it may be tainted by convenience and should be given little weight, but these matters were not put squarely to Ms Gardiner. It appears to me that Ms Gardiner was a truthful and straightforward witness. Her evidence is largely consistent with Mr Goch’s report in respect of Mr O’Connell’s functioning in activities of daily living[18], and I accept it. Ms Gardiner’s evidence provides an important insight into Mr O’Connell’s psychosocial behaviour and functioning from a domestic care perspective. It also suggests that Mr O’Connell may require some supervision and direction in aspects of communication, personal hygiene and social activities.
[18] Exhibit A4, pages 8-10.
Mr Goch was not called to give oral evidence. The hearing was adjourned in order for a detailed report to be obtained from him by those representing Mr O’Connell. Why this was not done prior to the hearing, early in the proceedings, is a mystery. Mr Goch has been Mr O’Connell’s treating psychologist over many years, treating him on a weekly basis. The importance of his evidence could, one might expect, have readily been anticipated. In these circumstances, it is astounding that the briefing letter to Mr Goch[19] failed to address one of the central issues in dispute, concerning Mr O’Connell’s need for direction in activities of daily living. Why this was not rectified prior to the resumption of the hearing has not been explained. This failure or omission, whether it was deliberate or in error, does not assist Mr O’Connell’s case, and it does not assist the Tribunal.
[19] Exhibit A4.
In the circumstances, in any event, Mr Goch’s evidence is helpful and it is not necessary to delay the proceedings further in order to clarify the point or to take oral evidence from him. It is desirable to set out parts of Mr Goch’s evidence, even though it is somewhat lengthy. Mr Goch reported that:
… Mr O’Connell is experiencing a moderate level of symptoms severity on a scale of Mild-Moderate-Severe, however, this has a severe impact on his social and occupational functioning and causes him severe distress…
…
…Mr O’Connell… maintains only a basic capacity for activities of daily living. This is largely a result of his emotional reactivity to reminders of his experiences in the AFP…
In terms of daily living Mr O’Connell presents as holding significant impairment compared to his previous functioning, I believe as a function of his PTSD. He requires significant direction (usually by his current partner) and has a requirement for support while completing even basic tasks (eg. painting furniture). Mr O’Connell described difficulty maintaining his motor vehicle. Where before he was able to complete tasks relatively easily, he struggles with problem solving, inherent difficulties and physical aspects of such tasks. He reported completing this type of task only as a matter of extreme necessity and requiring significantly longer and regular breaks to complete them.
In terms of his social functioning Mr O’Connell is isolated and withdrawn. He describes a preference to keep to himself rather than to socialise with others. This is despite the conflict this causes within the relationship. Again Mr O’Connell reported attending social engagements as a matter of perceived necessity and at a cost to his level of distress.
Mr O’Connell reported no significant recreational activities. It has taken several years to engender motivation to read the newspaper and complete the enclosed puzzles. The goal of this activity has been to provide distraction from negative thoughts and reinforcement of his normal cognitive functioning…
Mr O’Connell describes difficulty managing his finances, tending to squander his resources and struggle to meet his commitments. He is easily overwhelmed cognitively. He currently demonstrates a concrete thinking style in contrast to his previous, more flexible problem solving style (cf. his problem solving of criminal activity…), Mr O’Connell has become overly reliant on others for assisting his thinking and decision-making. Without support he is paralysed in processing information and decision-making due to his hypervigilance to threat. That is, his anxiety prevents him from comprehending basic written information (such as correspondence relating to his compensation claim) increasing his fear of an error or further difficulties so that these situations become directly threatening to Mr O’Connell. In addition Mr O’Connell demonstrates deficiencies in attention, persistence and a low frustration tolerance (cf. above engagement in home based tasks). He is emotionally reactive, easily becoming hurt, angry or anxious and is confused by choices or criteria.[20]
[20] Exhibit A4, pages 3-5; see also T320 folio 674.
On this evidence, it appears to me that Mr O’Connell requires some supervision and direction in communication and perhaps aspects of social and recreational activity. This is largely consistent with Ms Gardiner’s evidence.
It is necessary to consider the psychiatric evidence. While Dr Knox, Dr Saboisky and Dr Zsadanyi agree on many relevant points, in respect of Mr O’Connell’s psychological presentation and aspects of his psychosocial functioning for example, the key point of different between them, and the matter that lies at the heart of this application, concerns the interpretation of the Comcare Guide and the phrase “need for some supervision and direction in activities of daily living” in Table 5.1.
Dr Knox assessed Mr O’Connell as meeting the criteria for a 25 percent whole person impairment. Dr Knox took into account a number of psychosocial issues relating to mood, motivation, concentration, attention, energy and adaption. The Doctor interpreted “some supervision and direction” to include encouragement, advice and coping strategies, including and perhaps especially in a treatment context – “direction and supervision are inherent to consultation with a psychologist or a psychiatrist”. In his view, ‘need’ in the context of Table 5.1 refers to something that would improve an injured person’s ability to function. Adopting these interpretations, Dr Knox reported that he had no difficulty applying Table 5.1 and determining that Mr O’Connell needs some supervision and direction in activities of daily living.
Dr Saboisky did not agree, on the basis that the activities of daily living set out in Figure 5-A must be approached “as defined by Comcare”, where ‘direction’ is more than encouragement or the provision of advice or coping strategies, and ‘need’ is something that is necessary to enable a person to perform those specific activities. Dr Saboisky accepted that if encouragement, advice or coping strategies in a treatment context are considered to constitute ‘direction’ for the purposes of Table 5.1, then he would agree with Dr Knox that Mr O’Connell would meet this criterion at the 20 percent level of impairment.
Dr Saboisky’s evidence is that he has treated Mr O’Connell over many years, since 1995. From time to time he has provided support, encouragement, advice and coping strategies when treating Mr O’Connell. He provided examples relating to Mr O’Connell’s financial and gambling issues and his cognitive difficulties preparing documents and synthesizing information, when dealing with claims and other legal matters. But he did not consider this to fit the definition of ‘direction’. The medical records clearly support Dr Saboisky’s account. I note, for example, on 7 September 2004, Dr Saboisky reported to Comcare that “David needs support even to write the simplest letters or to help him negotiate such activities as house cleaning and organising his personal affairs”[21]. In the Doctor’s opinion, the level of Mr O’Connell’s impairment has not changed over many years, even though he was happier prior to his right arm injury and the onset of back pain. Dr Saboisky found no reason to alter his initial assessment several years ago of a 10 percent whole person impairment.
[21] T198 folio 423.
Dr Zsadanyi was not called to give evidence. He reported that “Mr O’Connell is significantly impaired by his PTSD symptoms and secondary depression”[22] – “There is a marked disturbance of thinking and of behaviours. Mr O’Connell presents as being extremely tangential in his thought form. He talks interchangeably between the past and the present. There are also disturbances in his behaviour as noted by his agitation”[23]. Nonetheless, in Dr Zsadanyi’s opinion, Mr O’Connell “does not require assistance or supervision”[24]. Dr Zsadanyi’s evidence on this point is not preferred as it is not consistent with the weight of the evidence, particularly that of Ms Gardiner, Mr Goch, Dr Knox and Dr Saboisky.
[22] T309 folio 640.
[23] T309 folio 642.
[24] Ibid.
To my mind, writing a simple letter involves the primary psychosocial functions of reading and writing. These are aspects of communication, as exemplified in Figure 5-A. If a person such as Mr O’Connell requires support to write the simplest letter, two relevant questions arise: why does he require support and what form does the support take – does it meet the test of supervision and direction? On Dr Saboisky’s evidence, the answer to the first question is that Mr O’Connell suffers from impaired cognitive processing functions, although this is at a higher level than the “primary biological or psychosocial function” to which the Comcare Guide refers in respect of activities of daily living. And, on the evidence of Dr Saboisky, Mr Goch and Ms Gardiner, the answer to the second question is that he may require guidance or instruction about how to approach writing a letter or completing a form, or assistance from someone else to process and complete the activity, or encouragement to initiate or undertake it.
I am reasonably satisfied that Mr O’Connell’s PTSD reduces his cognitive function to the extent that he requires instruction or guidance about how to approach the task of writing a simple letter and the immediate presence of someone, supporting him to actually initiate, perform or complete that task. The immediate presence of someone to assist him write a simple letter is, to my mind, consistent with ‘supervision’ as that term is used in Chapter 5 of the Comcare Guide. The word ‘direction’, given its ordinary meaning in common usage, may be construed to mean guidance or instruction on how to proceed or how to act[25]. This is what Mr O’Connell requires in respect of writing a letter or completing a form.
[25] Re Sat and Comcare [2004] AATA 334 at [28].
It follows and I am satisfied that Mr O’Connell requires some supervision and direction in this aspect of the activities of daily living, concerning communication.
These are all matters of degree. When determining whether an injured employee needs some supervision and direction in activities of daily living, it is necessary to assess the overall effect of the injury on the particular person as well as the character and content of the interaction that person has with others who are suitably qualified to provide direction in activities of daily living. For a person who is only mildly affected, encouragement to do something or not, or to do it differently may not meet the test of ‘some’ ‘direction’, whereas for a person who is badly affected, encouragement may well rise to a higher level of guidance and instruction, thereby meeting that test. Each case will turn on its own facts and must be assessed on its merits.
In Mr O’Connell’s case, the evidence of medical evidence clearly establishes that his injury has a significant effect on his life and his psychosocial function in respect to certain activities of daily living, communication for example. On 9 November 2010, Dr Zsadanyi, a consultant psychiatrist, reported that “Mr O’Connell has been suicidal in the past and required one admission to Hyson Green Hospital. He continues to remain severely depressed and withdrawn and at times neglecting his activities of daily living”[26].
[26] T309 folio 640.
I am reasonably satisfied that the treatment Mr O’Connell obtained from Dr Saboisky and for Mr Goch (although that is less clear) includes elements of encouragement, support, guidance, instruction and coping strategies in relation to aspects of primary psychosocial function involving communication and social and recreational activities, including gambling. These aspects of treatment have been necessary to address the level of PTSD symptoms Mr O’Connell suffers and the adverse effects of these symptoms on his ability to perform these activities of daily living. I am satisfied that in the present circumstances these forms of treatment are within the meaning of ‘direction’ for the purposes of Table 5.1.
In the course of the hearing, Comcare conceded that the phrase ‘suitably qualified person’ is not confined in its meaning to a person with specific technical qualifications, such as a doctor, a psychiatrist, a psychologist, or a social worker, but it may also, in some activities, include a person’s partner. This is plainly correct. The definition of a ‘suitably qualified person’ is simply “a person with the necessary experience and skills to provide appropriate direction to the employee”. I see no reason why a suitably experienced and skilled partner of an employee could not meet this description[27].
[27] See Re Brice and Comcare [2007] AATA 1476 at [117].
Even though there is little evidence concerning Ms Gardiner’s experience and skills, and she is not medically trained, it appears to me that her experience and skills in respect of Mr O’Connell’s self-care, personal hygiene, communication and social and recreational activities are sufficient to satisfy the defined meaning of a ‘suitably qualified person’ in Chapter 5 of the Comcare Guide. Furthermore, I am reasonably satisfied that Ms Gardiner is a ‘suitable person’, as defined, being a person who is immediately present and responsible for the care of her partner, Mr O’Connell. That is evident even though there are clear tensions in their relationship from time to time.
On the evidence of Mr Goch and Ms Gardiner, I am reasonably satisfied that Mr O’Connell needs some supervision and direction from Ms Gardiner in respect of aspects of self-care and personal hygiene, communication, and social and recreational activity. Whether or not her encouragement or nagging of Mr O’Connell is properly characterised as supervision and direction is beside the point of Mr O’Connell’s need. His need is clearly established by the evidence of Dr Knox and Mr Goch, and to a lesser extent Dr Saboisky, and I so find. This is not displaced by Mr O’Connell spending two weeks in a caravan, alone and away from Ms Gardiner on a country property; nor is it contra-indicated by Mr O’Connell driving himself, alone, to Coffs Harbour to visit his sister for 3 to 4 weeks, when she was recovering following a period of cancer treatment in hospital. There is no clear evidence how Mr O’Connell dealt with activities of daily living during either period. Ms Gardiner says that she spoke with Mr O’Connell on the telephone and that he became more depressed when he was staying by himself in the caravan; on her evidence, it appears that Mr O’Connell may have neglected his self-care and personal hygiene during this period. Dr Saboisky gave evidence that Mr O’Connell informed him that he had conversed with neighbours over a fence; but the content and circumstances of that conversation, if it occurred (and it was not put to Mr O’Connell) is not established. Mr O’Connell’s uncontroverted evidence concerning his visit to Coffs Harbour is that his sister obtained daily nursing and other care in respect of cooking and housekeeping. It appears that Mr O’Connell provided “moral support” and other family members may have been in attendance – the evidence establishes that he drove back to Canberra with another sister.
The present evidence does not establish that Mr O’Connell’s need for some supervision and direction in activities of daily living diminished or did not exist during these periods. And even if it did, it would not preclude his present claim. The test at this level is not for a constant, ongoing or continuing need for supervision and direction, it is simply for “some supervision and direction”; and the supervision and direction required does not have to relate to all or most or any particular one of the activities of daily living. Thus, if, as appears, Mr O’Connell did not require any amount of supervision and direction in respect of travel (driving his car, for example), it does not follow that cannot meet the test in respect of other activities of daily living, as he plainly does on the present evidence.
It follows and I am reasonably satisfied that Mr O’Connell satisfies the preconditioning criterion concerning activities of daily living at the 20 or 25 percent levels of impairment under Table 5.1.
Dr Saboisky, Dr Knox, Dr Zsadanyi and Mr Goch agree that Mr O’Connell has reactions to stressors of daily living which cause modification of daily living patterns and he has marked disturbances of thinking. I accept this evidence, and so find.
On the evidence of Dr Knox, Dr Zsadanyi and Mr Goch, Mr O’Connell also has definite disturbance in behaviour, indicated by his “very avoidant life and marked impairment of interpersonal capacities”[28]. Mr Goch reported that Mr O’Connell’s behaviour “revolves around his experience of, and attempts to manage his symptoms of psychological distress”[29] and suggested that “his reported level of suicide ideation and his assessed high risk of self harm”[30] are relevant considerations. Dr Saboisky did not agree. I prefer the evidence of Dr Knox, Dr Zsadanyi and Mr Goch on this point and find that Mr O’Connell suffers from definite disturbance in behaviour.
[28] Exhibit A5, report 7 December 2011, page 7.
[29] Exhibit A4, page 10.
[30] Ibid, page 8.
For these reasons I am satisfied that Mr O’Connell’s impairment satisfies the assessment criteria at the 25 percent level under Table 5.1. It follows that the decision under review in application 2011/2537 must be set aside. The matter will be remitted to Comcare to determine Mr O’Connell’s entitlements to compensation as result of this decision and in respect of non-economic loss under s 27.
The parties have not been heard as to orders for costs pursuant to s 67(8). Submissions on this point are to be filed within 14 days, with liberty to apply to be heard in person. If no submissions are received, Comcare will be ordered to pay Mr O’Connell’s reasonable costs in this application as agreed or taxed in accordance with Part 6.8 of the Tribunal’s Guide to the Workers’ Compensation Jurisdiction.
Lower Back
Mr O’Connell asserts that he injured his lower back when he inadvertently stepped into a hole while running during a rehabilitation program. Even though he cannot now recall precisely when this alleged injury occurred, he relies on evidence of Dr Brown, his treating general practitioner, Ms Gardiner and David Gunther, a personal trainer with Fun and Fitness, who provided the rehabilitation program.
There are some obvious difficulties with this claim.
For liability to arise against Comcare under s 14, it must be established that an injury as defined by s 5A has occurred. An injury for the purposes of the Act includes a physical injury arising out of, or in the course of Mr O’Connell’s employment, or a disease to which his employment contributed to a significant degree. Under s 6(1)(f) an injury is to be treated as arising out of or in the course of the employee’s employment if it was sustained while the employee was at a place for the purpose of undergoing a rehabilitation program provided under the Act.
Mr O’Connell’s evidence is that the injury occurred during an approved fitness rehabilitation program while he was jogging with Mr Gunther – he says that he stepped into a hole he had not seen and twisted his back, experiencing “pain in my right lower back. Very sharp pain which came up in a lump and I felt it in that – right in that part and down that [ right] leg” . He says that he reported the incident to Mr Gunther, who was jogging with a group ahead of Mr O’Connell at the time, and he consulted Dr Brown the next day. He maintains that he told Dr Brown that he was “in a lot of agony” and the Doctor issued a medical certificate and prescribed treatment, including hydrotherapy, physiotherapy, massage, hot and cold packs and cream.
The evidence of Mr Gunther is that he recalls Mr O’Connell talking about his back hurting after stepping into a hole – “he was participating with me, in a small group jog/walk along local fire-trails, somewhere around the Woden area. During the course of this run, I was informed by Mr O’Connell that he had stepped into a hole and strained his lower back”[31]. Mr Gunther did not witness the incident. He did not make a note of the incident or report it to Comcare as he thought that is was “a very minor incident and was not noteworthy”. Mr Gunther could not recall when the incident occurred.
[31] Exhibit A1, page 2.
The clinical notes kept by Fun and Fitness trainers in respect of Mr O’Connell’s program from 26 March 2003 to 24 May 2005 are in Exhibit R1. There is no reference in the notes to any back injury or to the onset of back pain. As can be seen, Mr O’Connell completed a pre-exercise screening questionnaire, in which he ticked “Back or muscular pain” – his right arm injury is noted in this document. Careful examination of the clinical notes reveals reference on 3 May 2004 to “psoas sore after run”. Mr Gunther explained that ‘psoas’ is a reference to the hip flexor muscle – “a large muscle through the front of the hip”[32]. On 7 May 2004 the notes record “still sore through hip flexor”. It appears that soreness continued on 14 May 2004 – “Still sore”, but the notes from 18 May suggest some improvement – “Much better through upper body. Hip better”. Notes from 25 May 2004 and 1 June 2004 refer to Mr O’Connell being tired; it appears that he was “not sleeping much” at this time. Thereafter, in the period from 1 June 2004 to 23 July 2004, the notes reveal that Mr O’Connell booked six semi-private pilates sessions (one of which he cancelled) and one walk up Mount Taylor. There are no notes from 24 July 2004 to 19 January 2005, when it appears probable that Comcare approved a further gym program for Mr O’Connell.
[32] Transcript, 2 May 2012, page 25.
The present evidence does not establish that the reduction in Mr O’Connell’s exercise activities from June 2004 was related to any problem with his right lower back or hip flexor.
The references to hip flexor soreness in the Fun and Fitness clinical notes are consistent with Dr Brown’s contemporaneous clinical notes. Dr Brown’s notes relevantly record –
04 May 2004 Has started running. R hip pain when jogging, & R S1 joint … hip flexor strain…
18 May 2004 Groin pain has settled
25 May 2004 Low back strain R leg pain →ankle
26 May 2004 X rays normal[33]
15 June 2004 Back pain comes and goes R been for months. No precipitants. ↑ ẃ rotation & flexion to R
[33] See radiological reports in Exhibit R3.
The Doctor’s subsequent notes refer, intermittently, to right sided low back pain and right leg pain. In her oral evidence, Dr Brown stated that she did not consider that the back strain she identified in May 2004 was related to an injury –
You know, there were a couple of things going on in May 2004. He did have groin strain, which I thought was probably from jogging and that he also did complain of low-back pain, which I didn’t attribute to anything at that stage.[34]
[34] Transcript, 1 May 2012, page 72.
It is quite clear, on Dr Brown’s evidence, that she did not associate the low-back pain she noted in May 2004 with Mr O’Connell’s later account of stepping into a hole and injuring his back. Her evidence is that if he had given a history of that kind at the time, in all likelihood she would have noted it. If he complained of a lump associated with low back pain, she would have examined it, and made notes. I have carefully examined Dr Brown’s clinical notes. The absence of notes of this kind suggests that these things did not occur in May 2004 or at any time during the fitness rehabilitation program. I prefer Dr Brown’s evidence on this point to that of Mr O’Connell. The Doctor’s 15 June 2004 clinical note indicates a history of intermittent back pain over a period of months, with no clear precipitating cause. This is compelling evidence that is not displaced by Dr Brown’s later opinions as to the causation of Mr O’Connell’s lower back pain in 2008.
Furthermore, if Mr O’Connell did sustain an injury in the circumstances he describes in May 2004, one would expect to find reference to it in contemporaneous communications with Comcare in respect of his (then) continuing fitness program. But no such references appear. Dr Brown’s report to Comcare on 16 June 2004 makes no reference to any low back pain or precipitating injury in the context of rehabilitative exercise, rather Dr Brown reports that the “gym programme is proving valuable in improving… his physical health”[35]. Dr Saboisky wrote to Comcare on 7 September 2004 and reported
The only thing that seems to attract any enthusiasm for him is his physical fitness, which has improved since he has had a personal trainer.[36]
On 1 February 2005, Dr Brown wrote to Comcare, urging reconsideration of a decision to cease funding Mr O’Connell’s sessions with a personal trainer and setting out the reasons to continue its support for this activity.
[35] T192 folio 413.
[36] T198 folio 423.
These matters weigh heavily against an injury to Mr O’Connell’s lower back occurring in the circumstances he asserts in May 2004 or at any time during the fitness rehabilitation program. The circumstances Mr Gunther recalls may have occurred, but it does not follow that Mr O’Connell sustained an injury to his lower back. The facts necessary to establish an injury are not made out.
The first reference I could find to the matters presently contended by Mr O’Connell is on 22 November 2007, on which date Dan Fasch, a treating physiotherapist, reported that Mr O’Connell presented for treatment of his right arm condition on 16 October 2007, noting that:
David has also reported chronic Right sided lumbar spine pain radiating intermittently into his lateral thigh and buttock. He states that this injury occurred whilst undertaking a return to work fitness program in 2005. I feel that this injury is consistent with sacroiliac joint and L4/5 facet dysfunction.[37]
A copy of this report was provided contemporaneously to Comcare.
[37] T242 folio 502.
It appears that Mr O’Connell may have raised these matters with Dr Brown. On 19 October 2007 Dr Brown noted “low back strain still present, may get physio to back…”[38]. Subsequently, on 23 January 2008, Dr Brown noted “low back strain exacerbated by digging recently…” and on 17 April 2008 “still complaining of right S1 joint strain, aches to bend… right S1 joint pain fpr [sic] 2 years”. On this date, Dr Brown wrote to Comcare and said:
I have recommended David O’Connel [sic] have an xray of low back and S1 joints and bone scan for investigation of right low back pain sustained during his rehabilitation therapy/exercise regimen in 2006. He has continued to have pain.[39]
Subsequently, on 14 May 2008, Dr Brown certified that Mr O’Connell was suffering from “low back strain right sided with referral pain to right hip” that was caused by “excessive exercise and running, sprained low back and hip, during rehab programme for return to work”[40].
[38] Exhibit R2, clinical note, 19 October 2007.
[39] T247 folio 508.
[40] T332 folio 786.
Dr Davis reported a diagnosis of a musculo-ligamentous injury to the lumbar spine[41], but changed this assessment in the course of giving oral evidence to that of a chronic pain syndrome[42]. This is consistent with Dr Mellick’s assessment, but Dr Mellick, a consultant neurologist, could not relate the pain symptomatology to “a spinal injury determined by the incident which occurred in 2006”[43]. On the history he obtained, Dr Macintosh, a consultant orthopaedic surgeon, thought that Mr O’Connell suffered an acute soft tissue injury in 2006, but this resolved and his present symptoms are attributable to degenerative processes in his spine, unrelated to trauma. I prefer the evidence of Dr Mellick and Dr Macintosh to that of Dr Davis.
[41] Exhibit A2, report dated 16 November 2011, page 6.
[42] Transcript, 2 May 2012, pages 39-40.
[43] Exhibit R5, report dated 28 September 2011, page 3.
I am satisfied that elements of the histories reported by these Doctors are not reliable. The present evidence does not establish that a musculo-ligamentous injury to Mr O’Connell’s lumbar spine occurred in 2006.
Mr O’Connell denies that he attributed his low back symptoms to an injury in 2006, as he cannot recall when it occurred. He asserts that Dr Brown “guessed” that he had injured his back during a rehabilitation program in 2006. Dr Brown staunchly denies this. Her evidence is that this was the history she was given by Mr O’Connell. I prefer Dr Brown’s evidence on this point; her note from 17 April 2008 lends support to her version of events. It appears that Mr O’Connell subsequently maintained that he sustained an injury to his lower back in 2006[44], although Dr Moulding appears to have advised him that the ‘injury’ may have occurred at an earlier time, in 2003 or 2004. The basis for Dr Moulding forming this opinion is not clear, although the implication is that he recognised that Mr O’Connell’s fitness program ceased in May 2005. Simply put, Mr O’Connell cannot recall when the incident and the alleged low back injury occurred.
[44] See T255 folio 516 and T312 folio 658, for example
Ms Gardiner’s evidence is that “on a date I am not longer sure of, David informed me that he injured his back whilst on a run with his personal trainer. David informed me that [sic] stepped into a hole he had not seen and twisted his back awkwardly”[45]. This evidence does not advance the matter.
[45] Exhibit A3, page 3.
In sum on this point, there is no reliable or probative evidence that Mr O’Connell consulted Dr Brown about an injury to his lower back in the circumstances he describes during the period in which he was participating in exercise-based rehabilitation programs with Mr Gunther at Fun and Fitness. The evidence does not establish, and I am not reasonably satisfied, that he sustained a low back injury in May 2004 or at any other time in that year. At the time, Dr Brown did not associate the right side sacroiliac joint pain with an injury and noted that it had been present for some months, with no precipitants. This contemporaneous record is not consistent with and it does not support Mr O’Connell’s account. The causal nexus between the sacroiliac joint symptoms Dr Brown recorded from 4 May 2004 and the incident Mr O’Connell and Mr Gunther recall in very imprecise terms is not established on the balance of probabilities, although it remains open as a possibility. But this is not enough to found liability against Comcare for an injury to Mr O’Connell’s lower back claimed in 2010. The contemporaneous evidence does not support the proposition that the right sacroiliac joint pain Dr Brown noted in 2004 was attributable to an injury. I so find.
It is not established that Mr O’Connell sustained an injury to his lower back in 2003, 2004 or 2005, and it is not established that the low back symptoms Dr Brown noted in 2004 are attributable to any activity Mr O’Connell was undertaking during the fitness rehabilitation program. Mr O’Connell could not have sustained a low back injury in the circumstances he describes after this time for the simple reason that he was not participating in a fitness program with Mr Gunther after May 2005. The present evidence does not establish that Mr O’Connell sustained a low back injury in 2006 or at any time thereafter in the circumstances he has described.
Nevertheless, it is probable that Mr O’Connell suffered a minor groin or hip flexor strain as a result of jogging, as noted by Dr Brown on 4 May 2004, but on her evidence and the Fun and Fitness notes, this settled by 18 May 2004. Determining whether this strain constitutes an injury for the purposes of the Act is a matter of some difficulty.
It is necessary to determine the extent of the Tribunal’s present jurisdiction and whether the notice and claim may be construed in a manner that would encompass a right groin or hip flexor strain in May 2004. A broad, generous and practical interpretation is required when considering documents relating to notice and claim in respect of an injury[46].
[46] Abrahams v Comcare [2006] FCA 1829 at [18].
It appears that Mr O’Connell did not give notice of having suffered an injury during the fitness rehabilitation program conducted by Fun and Fitness at the time. As I have said, the first express reference to an injury of this kind appears to be the report of Mr Fasch in November 2007. This was served on Comcare. This document is sufficient to constitute notice of the alleged injury to his lower back, with symptoms of pain radiating into his lateral right thigh and buttock. To my mind, in is highly unlikely that Mr Fasch, a professional physiotherapist, would have confused or conflated pain radiating from the lower back into the buttock and the lateral thigh with hip flexor muscle or groin symptoms. It follows that this form of notice does not cover a right groin or hip flexor muscle strain in 2004.
Comcare did not raise any issue under s 53 at any stage, or presently in these proceedings. Even though the parties have not squarely been heard in respect to issues concerning s 53, it appears to me that Mr O’Connell’s failure to comply with s 53(1) may well have arisen from his confusion about whether or not Dr Brown had notified Comcare of the alleged injury to his lower back – his evidence is that she issued a medical certificate (but no such certificate has come to light). Even though there is clear prejudice to both parties, this may well constitute a reasonable excuse for the purposes of s 53(3). That being so, I accept Comcare’s concession concerning notice of an injury to Mr O’Connell’s lower back. But this does not assist in respect of a hip flexor muscle strain in May 2004.
Mr O’Connell did not lodge a claim for compensation in respect of this alleged injury until he lodged a claim for permanent impairment compensation on 23 July 2010 in respect of his accepted PTSD and right arm injuries[47]. As can be seen, in this claim form, Dr Brown included “Low back strain” in the box headed “Diagnosis of current condition” and “Chronic R arm and low back pain with repetitive activity” in respect of impairments, as well as “5-10% impairment from back and arm pain” when describing the extent of the impairments. Notably, no reference is made in the claim form to a right hip or groin injury.
[47] T303 folio 605.
To my mind, even though Mr O’Connell’s claim is very imprecise, Comcare had sufficient documents referring to an alleged low back injury, including the November 2007 report of Mr Fasch, to construe the claim as one referring to an incident, as described by Mr Fasch, Dr Brown and others, in the context of a fitness rehabilitation program. As can be seen, the primary determinations and reviewable decision Comcare made in responding to Mr O’Connell’s claim were directed to an alleged injury in 2006. There are two difficulties with this of present relevance. Firstly, the claim form is notably silent on the date on which the low back strain injury allegedly occurred and it cannot be construed as only applying to an alleged injury in 2006. Secondly, when determining Mr O’Connell’s claim in 2010, Comcare’s own records and the relevant materials it had been provided establish that Mr O’Connell’s fitness rehabilitation program operated from 2003 to 2005.
It follows that Comcare knew, or had good reason to know, that the circumstances in which the injury reported by Mr Fasch and Dr Brown was said to have occurred could not have occurred in 2006, and it should not have construed the claim form so narrowly. The claim in its terms, albeit vague, is sufficient to encompass an alleged injury to Mr O’Connell’s lower back in 2004 in the circumstances he describes. But this does not assist in respect of the right hip or groin strain in 2004.
The present circumstances distinguish this case from that of Sellick v Australian Postal Corporation[48] in which Mr Sellick claimed compensation in respect of a shoulder injury and the Tribunal fell into error determining that the shoulder injury had resolved, but Mr Sellick was entitled to compensation in respect of a back condition. In this case, the notice provided in the form of Mr Fasch’s report sets out the injury and its connection to Mr O’Connell’s employment, satisfying the test in Frosch v Comcare[49].
[48] [2008] FCA 236 and [2009] FCAFC 146.
[49] [2004] FCA 1642 at [8].
In Canute v Comcare[50], the High Court addressed the concept of ‘injury’ under the SRC Act in the following way -
First, the Act does not oblige Comcare to pay compensation in respect of an employee’s impairment; it is liable to pay compensation in respect of "the injury". Secondly, the term "injury" is not used in the Act in the sense of "workplace accident". The definition of “injury” is expressed in terms of the resultant effect of an incident or ailment upon the employee’s body. Thirdly, the term "injury" is not used in a global sense to describe the general condition of the employee following an incident.
[50][2006] HCA 47 at [10].
With this in mind, when construing the claim, it would be wrong to take an over-literal or binding view of the stated diagnosis[51]. Diagnoses may change over time. But there are limits to the generous and practical interpretation of medical diagnoses. In this case, it appears that Dr Brown’s diagnosis of low back strain may extend to include referred symptoms in Mr O’Connell’s right hip and leg that are said to have been caused by the incident he describes in the fitness rehabilitation program. But I struggle to see how it could extend to include symptoms in the right hip flexor muscle or the right groin in circumstances where the low back symptoms are clearly distinguished. In May 2004, Dr Brown considered Mr O’Connell’s right hip flexor or groin strain symptoms to be unrelated to intermittent symptoms in his right sacroiliac joint and lower back. She confirmed this difference, referring to the different parts of the body involved, in her oral evidence. Thus, it appears to me that Dr Brown’s reference to low back strain in Mr O’Connell’s claim form cannot properly be construed to mean a groin or hip flexor muscle strain that the Doctor clearly differentiated and which resolved over a period of weeks in May 2004. The evidence of Dr Davis, Dr Mellick and Dr Macintosh does not establish a sound basis for concluding that the hip flexor muscle strain in May 2004 was related in any material way to symptoms in Mr O’Connell’s lower back at that time or subsequently.
[51] Ibid at [21].
That being so, I am reasonably satisfied that Mr O’Connell’s right hip flexor strain injury on 4 May 2004 is not within the terms of notice and the claim for compensation in respect of a low back strain. It follows that it is not an injury that I have jurisdiction to consider in these proceedings.
If I am wrong on this point, I note that the evidence establishes that the right hip flexor muscle or right groin strain on 4 May 2004 arose from jogging during a fitness rehabilitation program. This would constitute an injury. The evidence clearly establishes that this injury resolved by 18 May 2004 and it was not related to the intermittent symptoms in Mr O’Connell’s lower back that had been present for a number of months and that did not arise from any precipitant, such as the jogging that gave rise to the right hip flexor strain.
The present evidence does not establish, on the balance of probabilities, that Mr O’Connell sustained a low back injury in the circumstances he describes. It follows that the decision under review in application 2011/2534 must be affirmed.
I certify that the preceding 89 (eighty-nine) paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member. ...........................[sgd]......................................
Associate
Dated 13 August 2012
Dates of hearing 1 to 3 May and 6 to 7 August 2012 Counsel for the Applicant Allan Anforth Solicitors for the Applicant Capital Lawyers Counsel for the Respondent Jane Godtschalk Solicitors for the Respondent Dibbs Barker
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