Doorbar and Comcare (Compensation)

Doorbar and Comcare (Compensation) [2019] AATA 4003 (2 October 2019)
Division: GENERAL DIVISION
File Numbers: 2017/1521 & 2017/7422
Re:Janine Doorbar
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Damien Cremean, Senior Member
Date:2 October 2019
Place:Melbourne

In application 2017/1521, the Tribunal sets aside the decision under review and in substitution decides that the Applicant is entitled to compensation for medical treatment and incapacity under sections 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act) for ‘lateral epicondylitis (right)’ arising out of or in the course of her employment.
In application 2017/7422, the Tribunal sets aside the decision under review and in substitution decides that the Applicant is entitled to compensation under section 14 of the SRC Act for chronic regional pain syndrome.
Further, the Respondent shall pay the Applicant’s costs and disbursements in respect of both applications under section 67 of the SRC Act.
[sgd]........................................................................
Damien Cremean, Senior Member
Catchwords
WORKERS’ COMPENSATION - lateral epicondylitis – chronic regional pain syndrome – Department of Defence - repetitive keyboard and mouse activity – tennis elbow – compensation for injury – compensation for medical expenses – compensation for injuries resulting in incapacity – decision set aside
Legislation
Safety, Rehabilitation and Compensation Act 1988
Cases
Re Cross and Comcare [2018] AATA 52
Telstra Corporation Ltd v Hannaford (2006) 141 FCR 253
REASONS FOR DECISION
Damien Cremean, Senior Member
2 October 2019
INTRODUCTION

The Applicant is Ms Janine Doorbar and she has lodged two applications with the Tribunal.
In application 2017/1521 the Applicant seeks review of a decision made on 24 February 2017. This decision affirmed a determination made on 6 December 2016 that she has no present entitlement to compensation for medical treatment and incapacity under sections 16 and 19 of the Safety Rehabilitation and Compensation Act 1988 (Cth) (‘SRC Act’) for ‘lateral epicondylitis (right)’.
In application 2017/7422 the Applicant seeks review of a decision made on 14 November 2017; which affirmed a determination made on 25 September 2017 that she is not entitled to compensation under section 14 of the SRC Act for chronic regional pain syndrome.
LEGISLATION
Section 14(1) of the SRC Act provides:
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.
Sections 16 (1) and (3) of the SRC Act provide:
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 that medical treatment.
…
3 For the purposes of subsection (1), the cost of medical treatment shall, in a case where the treatment involves the supply, replacement or repair of property used by the employee, be deemed to include any fees or charges paid or payable by the employee to a legally qualified medical practitioner or dentist or other qualified person for a consultation, examination, prescription or other service reasonably required in connection with that supply, replacement or repair.
Section 19 of the SRC Act as far as material provides:
1     This section applies to an employee who is incapacitated for work as a result of an injury, other than an employee to whom section 20, 21, 21A or 22 applies.
2     Subject to this Part, Comcare is liable to pay to the employee in respect of the injury, for each week that is a maximum rate compensation week during which the employee is incapacitated, an amount of compensation worked out using the formula:
NWE - AE
where:
AE is the greater of the following amounts:
(a)the amount per week (if any) that the employee is able to earn in suitable employment;
(b)the amount per week (if any) that the employee earns from any employment (including self‑employment) that is undertaken by the employee during that week.
NWE is the amount of the employee’s normal weekly earnings.
2A     For the purposes of subsection (2), a week is a maximum rate compensation week, in relation to an employee to whom this section applies, if:
(a)it is a week during which the employee’s incapacity prevents the employee working the employee’s normal weekly hours because the employee is unable to work or unable to work at the level at which the employee worked before the injury; and
(b)the total number of hours that the employee has been prevented from working, or working at that level, during that incapacity, in that week and in all previous weeks, if any, to which paragraph (a) applies, does not exceed 45 times the employee’s normal weekly hours.
…
HEARING
The hearing of both applications took place over three days, on 26, 27 and 28 February 2019.
The Applicant was represented at the hearing by Mr M Carey of Counsel, instructed by Arnold Thomas & Becker Lawyers.
The Respondent was represented by Mr W Thomas of Counsel instructed by Comcare’s in-house legal team.
At the hearing the Applicant gave affirmed evidence, in person. She confirmed the contents of her Witness Statement of 18 June 2018 as being true and correct.
The Applicant called the following medical witnesses:
(a)Dr Roderick Towie, general practitioner, who gave sworn evidence in person;
(b)Dr Daniel Lewis, consultant rheumatologist, who gave affirmed evidence by telephone;
(c)Dr Sarah Leer, general practitioner, who gave affirmed evidence by telephone; and
(d)Dr Alexander Stockman, consultant rheumatologist, who gave sworn evidence in person.
The Respondent called Dr Tony Kostos, consultant rheumatologist, who gave sworn evidence in person.
There was also evidence in the documents lodged by the Respondent under section 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (the T-documents) from a Dr Grant Ramage who unfortunately had passed away before being able to give evidence before the Tribunal. The handwritten notes of Dr Stockman were also received into evidence.
Following the hearing both the Applicant and the Respondent lodged Submissions and, the Applicant lodged Submissions in Reply.
CONTENTIONS
Applicant
The Applicant contends that the decisions in both applications should be set aside.
The Applicant argues the Tribunal should find on the evidence, and a decision substituted, that under section 14 of the SRC Act the Applicant suffered incapacity and/or impairment as a result of an injury which arose out of or in the course of her employment, and to which her employment contributed to, to a significant degree. That injury is variously described as ‘lateral epicondylitis (right)’ (‘the injury’).
The Applicant also argues the Tribunal should find on the evidence, and a decision substituted, that from 6 December 2016, the Applicant has been incapacitated for work and undertook medical treatment in respect of the injury entitling her to compensation under the Act. Accordingly, she contended that medical costs and treatment expenses be paid under section 16 of the SRC Act, and that there should be weekly payments in respect of incapacity caused by the injury under section 19 of the SRC Act.
Further the Applicant argues that the Respondent should be required to pay the Applicant’s costs and disbursements under section 67 of the SRC Act.
Respondent
The Respondent contends that the decisions in both proceedings should be affirmed.
The Respondent argues that, on the evidence, the Applicant’s employment did not contribute to the injury suffered by her to a significant degree, but that other, non-work factors are involved.
The Respondent considers that the issues to be determined in application 2017/1521 include whether, on the evidence, the Applicant’s lateral epicondylitis was ever compensable under section 14 of the Act; and, if ever it was, whether she continued to suffer from that condition as at 6 December 2016; and, if so, whether she has a present entitlement to compensation for reasonable medical treatment and incapacity for work as at that date.
The Respondent considers that the issues to be determined in application 2017/7422 include whether the Applicant on the evidence is entitled to compensation under section 14 of the Act for a chronic regional pain syndrome; which in turn includes determining whether she has suffered an injury under section 5A of the Act (namely, a ‘disease’); but if satisfying at all the definition in section 5A, whether the Applicant’s chronic regional pain syndrome was contributed to, to a significant degree, by her employment so as to satisfy the definition of ‘disease’ in section 5B of the SRC Act.
EVIDENCE
In what follows I set out a summary of the evidence of each of the witnesses.
Ms Janine Doorbar
The Applicant, as I have noted, in sworn evidence confirmed her Witness Statement of 18 June 2018
In that Statement, the Applicant said that she is seeking review of Comcare’s decision of 6 December 2016 to stop her payments of compensation benefits for lateral epicondylitis and chronic pain syndrome.
The Applicant says she started work with the Department of Defence in about August 2002 when about 37 years of age. She had previously worked for Australia Post.
A large part of her role with the Department of Defence involved repetitive keyboard and mouse activity. This was different to her previous work.
The Applicant gave evidence that in about 2010 or 2011 she had pain in her right forearm and she noticed small bumps in the forearm muscles and a stinging pain there. She was told by her GP that she was suffering tennis elbow and needed to rest. So she took some time off work and the pain settled down and she was able to continue working. From time to time however, she would get an ache in her forearm.
In August or September 2012 she again experienced pain in her right forearm and this pain lasted longer and was more severe than before. At this time she was doing a lot of computer work and she noticed the pain was worst when she was using the computer mouse over a long period.
The Applicant says she had a problem with prolonged use of the mouse because she had to use her right hand and arm outstretched. She says she noticed some swelling in the elbow when she had experienced pain.
Initially, she took anti-inflammatory tablets. But on one particular day she felt a sharp pain in the right elbow region when opening a heavy glass door.
The Applicant saw Dr Sarah Leer, and had an ultrasound. She was advised she had Lateral Epicondylitis and a tear in the tendon of the right forearm.
After that, the Applicant says she followed up with Dr Rod Towie. He referred her to Dr Daniel Lewis, rheumatologist, who she saw in November 2012. She was given an autologous blood/plasma enriched injection into her elbow which, while painful, improved her condition over the following weeks.
The Applicant resumed a graduated return to work program in late 2012. But she only lasted a week or so due to pain in her right arm when she was doing keyboard work.
The Applicant commenced another return to work program in 2013/14, gradually increasing her hours. This continued for a few months, until she was told to transfer to Victoria Barracks but this did not seem to eventuate. She had previously experienced problems with a person (‘AR’) who was a supervisor there; and this caused the Applicant much anxiety.
In 2014 the Applicant commenced duties in the Land Sustainment Management Directorate. She had difficulties settling in and was still experiencing right arm pain together with abdominal and back pain.
At first the Applicant was working reduced hours but the hours of work gradually increased. She was performing repetitive keyboarding and mouse work and was still suffering pain in her arm, abdomen and back.
The Applicant considers that her back pain was relieved by rest. But she then underwent laparoscopic surgery to relieve adhesions and unresolved epiploic appendagitis, which seemed to account for her abdominal pain.
On 11 July 2016 the Applicant commenced a new role in the Land Systems Division Headquarters, at Victoria Barracks. Two days later she was informed that AR may be commencing work there and her anxiety levels increased.
After being away from work for six or seven weeks, the Applicant went to see Dr T Kostos. After the Respondent saw his report, she says, her compensation payments ceased. She said he seemed to be saying all my problems are psychological.
The Applicant then saw Dr Lewis in response to the report of Dr Kostos. She had a further ultrasound in January 2017, which confirmed she continued to have mild lateral epicondylitis. This was the injury which had been accepted by the Respondent as compensable.
In March 2017, the Applicant commenced work as a Logistics Assurance Officer. In this job she has been able to work full time because the work was varied and not causing her any increased pain. She says she has been far more productive when doing this job, with much less repetitive keyboard work. The reason, she says, is because she does not have a lot of pain to deal with. She regarded this new job as her best job since her injury.
In her oral evidence, the Applicant again said that the duties she was performing at work after receiving notice of the 6 December 2016 decision were quite different to those she had been performing earlier. The Applicant was now using a vertical mouse. In trying it out she thought to herself wow, this is so good.
Earlier, from 2006 until 2012, it seems the Applicant was doing a lot of scrolling with the original mouse using her index and middle fingers on her right hand. Sometimes she would also be performing higher duties when someone was absent.
The Applicant said that it was when she was doing the more repetitive duties that she would notice pain come on.
After going through the heavy door at work (see paragraph 31), which leads out towards the toilet, her pain worsened and it was then that she saw Dr Leer.
In reference to her difficulties with AR, the Applicant said she felt excluded by meetings taking place without her.
The Applicant said she had been entitled to benefits since September 2012 when she developed the injury for which she took time off work. She received various treatments particularly from Dr Towie who had been her GP for 20 years, and from Dr Lewis who she last saw in October 2016.
Under cross-examination the Applicant agreed she had submitted a claim form in September 2012 in which was stated, though not in her handwriting, that she suffered bilateral epicondylitis and that she had stated on the form that she became injured on approximately 29 August 2012. She agreed she had answered on the form that she had had similar symptoms and that in 2010 or 2011 she had been treated by a Dr Popescu, who had told her she was suffering tennis elbow. In another answer in that claim form she said she had been Working at my usual desk when she noticed her injury.
Under cross-examination she also agreed that in March 2011, or on some date prior to 2011, that in the course of moving house she had fallen down stairs. But she said I fell on my left-hand side and did not seek medical attention.
The Applicant agreed she had seen a Mr Ian Kelman, a consultant orthopaedic surgeon, in February 2013 about her right arm condition and that he had recorded in his notes Ms Doorbar states that she began to experience discomfort in the extensor muscles of her right forearm in 2008/2009. She agreed, therefore, that possibly she might have experienced symptoms as early as 2008 or 2009. She said she was unsure about whether she had mentioned to Dr Leer this prior incident but then she said she thought she had. She agreed, however, that she had not told Dr Leer about the heavy glass door incident. She did think she had told the physiotherapist at the clinic; although she had not reported it to her manager at her workplace.
The Applicant agreed that for a number of years she had suffered anxiety (which she agreed at one point was considerable stress and anxiety) due to work issues including as a result of treatment she had received from her supervisor and manager including AR. She said she is very passionate about her work but she thought she was being targeted by her supervisor and manager. She agreed that on 13 May 2013, and again on 11 June 2013, she saw Dr Towie about anxiety, particularly concerning her work and her supervisor. At another point, the Applicant agreed that in 2014 she was also definitely suffering stress and anxiety due to not being given meaningful work, that is, work in line with her position description.
The Applicant agreed she attended a psychologist, Ms Joanna Young, upon referral by Dr Towie, over several sessions and that the psychologist’s notes state extremely severe anxiety, moderate stress, mild depressive symptoms in the context of chronic workplace problems, including workplace injury.
The Applicant agreed, particularly with reference to Dr Peter Farnbach, that she was feeling a strong physical response to the anxiety she was suffering including palpitations, chest pains and shortness of breath. She also agreed, however, that Dr Farnbach said he did not have enough information at his disposal at that point to assess her as suffering chronic pain disorder.
The Applicant also agreed that she liked doing the more varied duties at Laverton than the repetitive duties at Victoria Barracks. She also agreed she found the work more satisfying but maintained this was because of my arm and was not a matter of the work she was doing as such.
Dr R Towie
Dr Towie, general practitioner, confirmed the contents of his reports dated 17 and 24 October 2016, which he prepared in response to a report from Dr Kostos.
In his former report, Dr Towie said that the Applicant had been a patient of his for 15 years; and that in 2012 she had reported right arm pain which he diagnosed as epicondylitis and common extensor tendon tear. He said he regarded a diagnosis of chronic pain syndrome proffered by Dr Kostos as being without merit. Dr Towie referred to the various specialists who had expressed a similar view to him, with the exception being Dr Kostos. Dr Towie referred to the Applicant’s injuries as work related.
In his oral evidence, Dr Towie said he had no doubt about the epicondylitis as a persistent problem. It was, in his view, a work related syndrome which transitioned to chronic pain syndrome. However, clinically in his view the Applicant was still suffering mild epicondylitis. He said he considered that the clinical condition of epicondylitis can co-exist with chronic pain. He also said that lateral epicondylitis is renowned for being difficult to treat and it is a condition which can be long and debilitating.
Under cross-examination, Dr Towie agreed he did not have the specialist expertise of a rheumatologist. Where his opinion and that of a rheumatologist might differ on a specialist matter he would defer to the opinion of the latter but not necessarily in every instance. He agreed that Dr Lewis and the late Dr Ramage were both of the view that the Applicant was no longer suffering lateral epicondylitis. He agreed also that he had advocated quite strongly on behalf of the Applicant for her to have her claim accepted. He also agreed that, in expressing his views, he had confused chronic with complex when speaking of the Applicant’s pain syndrome, and that chronic regional pain syndrome was a correct diagnosis.
Dr Towie agreed that the Applicant spoke to him about the nature of her work and that she felt it was mindless and repetitive and that she had issues with her supervisor. This would have been in about April 2016. He agreed that she was stressed and anxious at work and that this would tend to exacerbate her physical symptoms, including her condition of lateral epicondylitis; but they would lessen if she was happy at work.
Dr D Lewis

Dr Lewis, a consultant rheumatologist for about 30 years, confirmed the contents of his reports dated 23 April 2018 and 31 January 2019.
In his report of 23 April 2018, Dr Lewis diagnoses the Applicant as having pain and dysfunction of the right forearm due to a regional pain syndrome, which has developed following a soft tissue injury to the right common extensor origin. He says that in his opinion her condition is as a consequence of her employment with the Department of Defence. He says her condition is stable but she will require ongoing pain management with a focus on biopsychosocial considerations.
In his later report of 31 January 2019, Dr Lewis says there are no current clinical signs consistent with a diagnosis of lateral epicondylitis. However, he says that she suffers from a chronic regional pain syndrome. He says he considers she developed [this] following a now resolved soft tissue injury to the right elbow region. He said he regards the pain syndrome as being materially related to her employment with the Department of defence[sic]. He notes the Applicant is currently working full time and that her prognosis is excellent
In his oral evidence Dr Lewis explained, as regards pain syndrome, that the scientific community has come to recognise that pain can exist without an injury. And how, in the Applicant’s case, pain at the right elbow had come to spread to other parts of her arm which in turn could become painful as a result of simple things like movement and palpation.
Under cross-examination Dr Lewis said that in the case of the Applicant it was a matter of the Applicant’s report of regional pain syndrome and what she may have reported at the time was due to acute inflammation at that time. He said she would not have developed a regional pain syndrome had there not been an initiating acute injury. He said that how an individual experiences pain is significantly influenced by all the factors that affect brain psychology. Hence, pain is amplified by stress and emotional factors.
Dr S Leer
Dr Leer, general practitioner, gave evidence concerning reports and correspondence from her regarding the Applicant’s right arm condition.
In a letter dated 13 November 2012, addressed to the ‘Comcare Delegate’, Dr Leer wrote that she was first consulted by the Applicant on 11 September 2012 for the condition claimed - which included a two week history of right sided elbow pains which had been aggravated by her use of her computer mouse with her arm in an outstretched position. She noted that the Applicant said she was not able to move closer to the mouse because her chair would not allow it. Dr Leer noted also that the Applicant had been diagnosed a year earlier with right sided tennis elbow.
In her letter Dr Leer diagnosed the Applicant’s condition as right sided tennis elbow with pain in lateral epicondyle at rest and on passive as well as active and resisted movements. Dr Leer recorded that an ultrasound showed a partial thickness tear in the common extensor tendon on right side. Repetative [sic] actions of the forearm provoke this condition she wrote. Dr Leer also wrote that she was unaware of any non employment related provoking factors.
In evidence Dr Leer agreed that that letter/report reflected her opinions at the time of preparing it.
Under cross-examination, Dr Leer agreed that the Applicant had complained to her about her ergonomic set up at her work station. She agreed that the Applicant made no mention to her of an episode when she was pulling or pushing a door. She agreed also and commented that the Applicant was complaining of pain disproportionate to the suspected diagnosis.
Dr T Kostos
Dr Kostos, consultant rheumatologist practising in the field of musculoskeletal medicine, gave oral evidence in which he confirmed he had completed reports dated 30 June 2016, 17 August 2016 and 14 January 2019. Dr Kostos confirmed their contents as true and correct.
In the report dated 14 January 2019 (2019 report), Dr Kostos provided his diagnosis as a chronic regional pain syndrome with no evidence of right lateral epicondylitis. He wrote that her condition relates to psychological and social factors with the role of inherent personality traits, previous life experiences, attitudes and beliefs and the adaptability to cope with stress and anxiety becoming increasingly appreciated.
Dr Kostos wrote in his 2019 report that chronic regional pain syndromes do not result from physical work. He indicated that he considered that a number of factors, all non-work related, would have led to her syndrome. He also said there is no causal relationship between chronic regional pain syndrome and right lateral epicondylitis. Dr Kostos further opined that the ultrasound report of 12 January 2017 did not show active lateral epicondylitis, and he disagreed with the radiologist’s comments. Finally, he wrote that the Applicant does not suffer from a condition that has been significantly contributed to by the physical aspects of her employment.
Dr Kostos, also in his 2019 report, expressed disagreement with Dr Towie, who he said did not carefully examine the Applicant’s right elbow. He also expressed disagreement with Dr Stockman, who he said had not accurately described the site of the Applicant’s pain. However, Dr Kostos agreed with Dr Stockman in his view that the Applicant suffers a chronic regional pain syndrome which he said is prone to periods of exacerbation at times of stress.
In his oral evidence Dr Kostos said he had been in specialist medical practice for 33 years. He agreed with a description that the Applicant’s chronic regional pain syndrome refers to her pain amplification state involving most of her right shoulder girdle and right upper limb.
Under cross-examination Dr Kostos agreed he had used the words web administrator to describe the Applicant’s work position, and that he got this from the position description provided by Comcare; but he said he thought that was how her position should be described considering her duties. He agreed that Dr Lewis is a competent rheumatologist who is reasonably expert in his field. If Dr Lewis had diagnosed right lateral epicondylitis he said he would accept that. He acknowledged that the Applicant was saying that he had not carried out an adequate examination of her elbow, but he disagreed with this particularly since it was in black and white in his report.
Referring to the ultrasound report of 12 January 2017, Dr Kostos said he considered the radiologist was incorrect. He said radiologists are trained to report films; they are not trained in diagnosis or in physiology. Dr Kostos agreed he was not trained in psychiatry or to make psychiatric diagnoses.
Dr A Stockman
Dr Stockman, consultant rheumatologist, gave evidence in which he confirmed his reports dated 24 May 2018 and 12 February 2019.
In the first of these reports (May 2018), Dr Stockman diagnosed the Applicant’s condition as: right later [sic] epicondylitis. He wrote there is referred pain in the right shoulder and neck consistent with regional pain syndrome. He also wrote there appear to be significant psychological sequelae of the injury. Her psychological state is likely to exacerbate the pain in the elbow. He wrote that both conditions (right lateral epicondylitis and chronic regional pain syndrome) are entirely related to the employment with the Department of Defense [sic] and also that there are likely to be periods of exacerbation and remission. Nonetheless, he said in his view the Applicant was fit to continue with current duties on full time basis. He also made it clear he was unaware of any unrelated or pre-existing conditions.
In the later report (February 2019), Dr Stockman wrote that his diagnosis, having seen the Applicant again, was right lateral epicondylitis (pain in the elbow with radiation to the forearm). He also said that there was likely to be some anxiety and depression because of her condition. He said he considered her lateral epicondylitis and chronic pain syndrome can be related to her employment in the Department of Defence between 2010 and 2016.
Dr Stockman gave evidence that he had been a consultant rheumatologist since 1979 that is for 40 years. When he was asked about the opinion expressed by Dr Kostos, Dr Stockman said that he had the view that the Applicant had continuing epicondylitis and that this was confirmed by the ultrasound. He said in that regard he valued the work that ultrasounds do. He said he saw a relationship between the Applicant’s condition and her work dealing with files and lifting things and repetitive work. He added that he took into account also a history concerning the work station that she was using. He said he was more in support of Dr Lewis as opposed to Dr Kostos regarding lateral epicondylitis giving rise to chronic regional pain syndrome.
Under cross-examination, Dr Stockman agreed he had said the Applicant had given him a history of right lateral epicondylitis and that he had said that this occurred during the course of her employment with the Department of Defence but he said this was something said by him because that’s probably what she told me. He then referred to his notes, which were received into evidence.
Dr Stockman agreed that lateral epicondylitis is a condition which, over a long period of time, can flare up and go down intermittently. He did not think he would be confident expressing an opinion about anxiety but that he could express an opinion about the effect of anxiety on a rheumatic condition. In that regard, he agreed that the Applicant’s psychological state contributed to the symptoms she was experiencing and for which he was assessing her; and he also agreed that that contribution was significant. However, Counsel was prepared to leave this as contributed. Dr Stockman agreed that the more proximal pain from the elbow up [radiating around the Applicant’s body] is not consistent with lateral epicondylitis.
In re–examination Dr Stockman agreed that pains (radial pains going down the extensor aspect and lateral aspect of the elbow) are consistent with right lateral epicondylitis and that these pains can coexist with right lateral epicondylitis.
CONSIDERATION
Applicant’s evidence
I accept the evidence of Ms Doorbar in its entirety. At no point did I think that she was fabricating her evidence or exaggerating it. Accordingly, I am satisfied I should accept what she said as a witness of truth.
Right lateral epicondylitis
Under s 5A of the Act an injury is defined as:
(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
(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
Under Section 5B of the Act a disease is defined as:
(1) In this Act:
disease means:
(a)an ailment suffered by an employee; or
(b)an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.
(2) In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:
(a)the duration of the employment;
(b)the nature of, and particular tasks involved in, the employment;
(c)any predisposition of the employee to the ailment or aggravation;
(d)any activities of the employee not related to the employment;
(e)any other matters affecting the employee’s health.
This subsection does not limit the matters that may be taken into account.
(3) In this Act:
significant degree means a degree that is substantially more than material.
Under Section 4 of the Act an ailment is defined as:
any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
As I have noted, the Respondent argues, in the first instance, that the Applicant’s employment did not contribute to her condition but that other factors that were non-employment related did so. In particular, the Respondent makes reference to early reports by her of tennis elbow among other conditions. Reference is made also to the Reports of Dr Ramage and to the notes of Dr Stockman. Specifically, it is said that Ms Doorbar had experienced symptoms of lateral epicondylitis before her claimed injury in September 2012. Mention is made of her having attended Dr Popescu in 2010 or 2011 who had diagnosed her with right lateral epicondylitis. It is said that the evidence suggests she had experienced symptoms of that condition prior to 2010, in about 2008 or 2009.
It does not seem to be in doubt, from the Respondent’s perspective, that the Applicant has suffered lateral epicondylitis. But what is raised as the issue is whether that condition was ever a compensable condition under s 14 of the Act.
I find, firstly, that the Applicant has indeed suffered right lateral epicondylitis. I consider I may rely upon the evidence of Drs Towie, Lear and Stockman in particular on this. I found their evidence persuasive and accordingly I make a finding to that effect.
The mere fact that the Applicant suffered from that condition some years before her claim does not, in my view, prevent me finding she suffered it again at the time her claim was made or afterwards. There is no logical inconsistency involved in this.
I consider the Respondent is attributing to the Act in section 14, and in the definition of injury, an operation which is far too restrictive given the manifest objects of the Act. A condition shown to be suffered before a claim is made does not mean that the condition is not compensable at all at the time of the claim or afterwards. The latter does not follow from the former.
I am also concerned to learn that the Respondent is citing directly in support of its position the views of two medical professionals who did not give evidence. Dr Ramage is deceased and Dr Popescu was never called. The Respondent also cites the evidence of Dr Stockman in his notes; and he did give evidence. I have duly considered those notes.
Even so, I consider I should be at least wary about relying upon the opinions of medical professionals who have not given evidence and had their views tested. That is even though their opinions may appear in the T-documents. It extends as well to factual matters set out in those opinions. Because they have not been tested, I cannot say whether the factual matters they set out, such as when a person first complains of pain or discomfort, are correctly noted by them. Perhaps they were, but perhaps they were not. I simply do not know. This extends to Drs Young, Farnbach and Cohen, none of whom was called to give evidence. I would have thought the Respondent might consider calling at least one of them. I have noted their views but I note also that their views are untested.
Drs Stockman, Towie and Leer did give evidence, and were cross-examined; and I have confidence in being able to rely upon their views. Their evidence shows that there were times before the Applicant made a claim when she was reporting pain or discomfort. I do not conclude from this that her condition was therefore never compensable. As I have said above, the fact that she may have suffered the condition before, even long beforehand, does not mean she cannot have been suffering it when she lodged a claim.
Moreover, in my view the Respondent’s argument seems to overlook or to discount the extended meaning given to the notion of injury under the Act; particularly the notion of aggravation. A person may suffer a condition long before claiming, but suffer an aggravation of it, and thus an injury, at or about the time of lodging a claim.
If I accept that the Applicant did suffer her condition previously, even long before she lodged a claim, I am not, in my view, prevented from finding that it was compensable at the time when she claimed or afterwards. I might accept that, based on Dr Stockman’s notes or Dr Towie’s evidence. But this does not mean that, at the time of her claim, I should be satisfied that her condition was caused by non-employment related factors as the Respondent has submitted.
I therefore reject this argument by the Respondent. Nothing was said in evidence by Dr Kostos which would alter my view. His involvement has been a recent one and he was not examining her at any time before she claimed. Nor do I accept or agree that the weight of the medical evidence is in favour of a view that by 6 December 2016 her condition had resolved, as the Respondent contends. The medical evidence I cite or rely upon is plainly to the opposite effect. I cannot see how the Respondent can have any basis for its contention in light of the evidence of Drs Towie and Stockman. It should not go, without note, that the Respondent cites in support, the opinion of Dr Ramage, who is dead and whose views now cannot be tested.
There is a question, however, arising out of Dr Kostos’s opinion concerning whether the Applicant is still suffering right lateral epicondylitis. His view is plainly that she is not suffering that condition. On the other hand, Dr Stockman in evidence said that the Applicant does continue to suffer that condition and he regarded this as something supported by an ultrasound. Against this, Dr Kostos was dismissive of ultrasounds. Radiologists, he said, were not trained in diagnosis or in physiology.
I was somewhat surprised that Dr Kostos was so readily able to disregard an ultrasound result and a radiologist’s opinion. I would have thought radiologists, as medical practitioners at least, would have some training in both diagnosis and physiology. Nonetheless, I do not consider I am in a position to, or required to, make a finding about the general value of ultrasonography in either respect, without some further independent evidence on that subject.
It seems to follow from this, considering only the evidence of those two witnesses, Drs Kostos and Stockman, that I am not in a position to say whether either is correct about the present state of the Applicant’s right forearm condition. Each is a highly qualified consultant rheumatologist, and I am not able, on the evidence, to prefer one above the other if the only evidence I have before me is that given by them. Dr Stockman has been in specialist practice a little longer than Dr Kostos but I am not in a position to say that this means his opinion should therefore carry more weight. However, Dr Stockman, in contrast to Dr Kostos, seemed a little vague about some of his views and about some of the claims he was making about certain facts.
However, the evidence before me is not confined to the evidence only of Drs Kostos and Stockman. I also have the evidence of Dr Lewis who is also a consultant rheumatologist of respectable standing. His view was that there are no current clinical signs consistent with a diagnosis of lateral epicondylitis. His evidence on this point satisfies me that I should follow the evidence of Dr Kostos and find that the Applicant does not presently suffer from the condition, despite still suffering pain or discomfort from time to time.
I am, however, clear that at the time she made her claim the Applicant was suffering from right lateral epicondylitis. I make a finding of fact to that effect. I also find that she is not still suffering from the condition some four years or so later. Sometime between the time of her claim and the present, her condition has resolved.

I am satisfied, that the “sometime” in the previous sentence was the time of her return to work in July 2017. By this time her condition of epicondylitis had resolved.
Therefore, I find that from the time of her claim and 1 July 2017 (the date of the Applicant’s return to work) the Applicant was suffering right lateral epicondylitis. I am satisfied and I make this principal finding on the basis of the Applicant’s own evidence and the evidence of the medical practitioners I have cited.
The relation of this finding to her employment is discussed below.
Chronic regional pain syndrome
The Applicant’s right lateral epicondylitis has been very painful from time-to-time. I accept the evidence that she has, as a result, also developed a condition referred to as chronic regional pain syndrome.
The experts agreed that the Applicant suffers from this condition. I refer in particular to the evidence of Dr Lewis in his report dated 31 January 2019. I refer also to the evidence of Dr Stockman, who in his report dated 24 May 2018 referred to pain in the Applicant’s neck and right shoulder as consistent with chronic regional pain syndrome.
I accept the experts’ evidence in light of the Applicant’s various presenting conditions.
Relation between the two conditions
Dr Kostos considers that the Applicant suffers from chronic regional pain syndrome but it is his view that this is a ‘stand-alone’ condition and not due to lateral epicondylitis. He indicates that it relates to various factors of a psychological kind, not including lateral epicondylitis. He referred to psychological and social factors and her adaptability to cope with stress and anxiety.
The Applicant agreed in evidence that for a number of years she had suffered anxiety or considerable stress and anxiety. Ms Young, psychologist, who was not called to give evidence, stated in her notes that the Applicant suffered extremely severe anxiety. Dr Towie also agreed that the Applicant was stressed and anxious.
I do not consider it was established before me in the evidence that a person who is stressed and/or anxious cannot develop chronic regional pain syndrome independently of such stress and anxiety. Dr Kostos did not seem to go as far as that in his evidence and that could be because the proposition is unmaintainable. Of course it must be possible, on any ordinary analysis, both for stressed persons and other persons alike, to develop chronic pain syndrome. It is by definition a pain syndrome and I am not satisfied that it is a pain syndrome suffered only by individuals who are anxious or stressed. I would need much stronger evidence than I have before me, to be satisfied that chronic pain syndrome arises only in persons who are anxious or stressed.
Having said that, I consider it is possible for a stressed or anxious person to develop chronic pain syndrome, because of their stress or anxiety. This is what Dr Kostos is saying in his evidence as I understand it: that the Applicant suffers the condition due to stress, anxiety etc.
However, I am not satisfied that his opinion in this regard is within his field of expertise. He agreed in cross-examination that he is not trained in psychiatry or to make psychiatric diagnoses. It seems to me that Dr Kostos really is advancing a psychological or psychiatric hypothesis which he lacks specialist training to advance.
Dr Stockman was far more restrained in this regard. He said he would not be confident expressing an opinion about anxiety, although he felt he could express an opinion about the effect of anxiety on a rheumatic condition.
This, I consider, is a reasonable position to adopt. Dr Stockman is not a psychiatrist and is not trained in making psychiatric diagnoses. I accept that both he and Dr Kostos are expert rheumatologists, but they are not psychiatrists. No psychiatric evidence was called by either the Applicant or, more importantly, by the Respondent. I would have thought that the Respondent should have called psychiatric evidence if wanting to establish the kind of analysis proffered by Dr Kostos. Merely having lodged psychological or psychiatric expressions of opinion where the authors are not called is not enough in my view.
I reject the notion that Dr Kostos is qualified to express some of the views he did express in his reports, particularly that of 14 January 2019. In that report he writes of the Applicant’s condition as if he were proffering a psychiatric diagnosis. He goes, in some depth, into what her condition relates to. He mentions, describing her whole person, previous life experiences, attitudes and beliefs. These are matters which range way beyond the legitimate scope of his expertise in musculoskeletal matters. I therefore reject his ‘psychological ’analysis.
I accept however that the Applicant, as she conceded, has for a number of years been an anxious person. But the connection between her being an anxious person and her having developed chronic pain syndrome is not in my view established, if I take the evidence of Dr Kostos out of the equation, as I do.
The question which then arises is whether there is any relation between lateral epicondylitis and chronic pain syndrome. Dr Kostos would say there is no connection between the two. But I am not confident of his testimony on this point, considering I have rejected his other views about chronic pain syndrome. Dr Towie was clear that the Applicant’s epicondylitis transitioned to chronic pain syndrome, a view which seems not unreasonable, given the length of time the Applicant has complained of symptoms. Then again, it was his view that she is still suffering mild epicondylitis and I have rejected this on reliance of the evidence of Dr Kostos, supported by that of Dr Lewis.
Referring again to the evidence of Dr Lewis, he said he considers the Applicant developed the pain syndrome following a now resolved right elbow injury. I regard this as a reasonable analysis. It is not, in my view, a case of an injury upon an injury, or an injury unrelated to an otherwise compensable injury. I consider it is something following on from an injury which is compensable and not separable from it but a sequel to it. I have made a finding that the Applicant does not continue to suffer epicondylitis now; but that, to my mind, does not mean she cannot now be suffering chronic pain syndrome. Because the former does not now exist, it does not follow that the latter does not exist either or that the former did not put in place the conditions which enabled the latter to be a sequel. They are both ailments but of different kinds, although the former - on the evidence - can ‘bring on’ the latter. Indeed, I take up the analysis of Dr Stockman and say that the pain syndrome is one of the psychological sequelae of her injury. I should add I do not consider that Dr Stockman, in saying that, was in any way proffering a psychiatric or psychological analysis.
I am satisfied on the evidence, in the sequence of events described by the Applicant and other witnesses, that I should accept the evidence of Dr Stockman and find that the Applicant’s chronic pain syndrome follows on from her right lateral epicondylitis. In light of my findings, it is unnecessary to make a finding whether the two can co-exist. But I note Dr Towie’s opinion that they can co-exist and this does not seem wrong in principle.
Relation to employment
I have said I accept the evidence of the Applicant in its entirety.
It follows that I accept she suffered her injury in the way she describes, that is, that her work caused or contributed to her injury in particular by a lot of computer work and that her pain was worst when using the computer mouse over a long period. This was no mere temporal connection.
The work with the mouse involved using her right hand while her arm was outstretched. That apparently may have resulted from a positioning of her workstation. From about 2006 until 2012 she was doing a lot of scrolling with the mouse using the fingers on her right hand.
Also, while at work in about September 2012, she had difficulty with a heavy glass door when pushing or pulling it and felt a sharp pain in her right elbow region and because of this, she considers, her pain worsened.
The pain was especially noticeable when she was doing the more repetitive duties with the mouse. After receiving notice of the Respondent’s decision on 6 December 2016, the Applicant was given a vertical mouse and immediately after trying it out thought wow, this is so good.
I consider it very clear that the Applicant’s injury, the right side lateral epicondylitis, was caused or contributed to by her work and by the repetitive nature of it over a lengthy period perhaps beginning in in about 2012 or a little earlier. This is made all the more apparent by her condition improving by her having suffered less pain when she would be given less repetitive keyboard work. I have already indicated that I reject the notion that the Applicant’s condition is not due to her employment because it was pre-existing. See Telstra Corporation Ltd v Hannaford (2006) 141 FCR 253. The evidence is merely suggestive of the possibility of this in my view, and goes no further. However, even a pre-existing condition can be compensable by reason of employment being an exacerbation or aggravation of the condition. If her condition was pre-existing, I am satisfied her workplace aggravated or exacerbated it, and caused or contributed to her injury in that way. As I say, there was no mere temporal connection between her epicondylitis and her work. The fact, if it be one (and it is not a fact found by me) that a person who has suffered epicondylitis is prone to suffering it again, is of no assistance in avoiding the provisions of the Act if the person’s workplace aggravates or exacerbates it.
There is nothing else in the evidence which would suggest her injury was caused in any other way. She had had a fall at home down stairs when moving house but she fell to her left side and did not seek medical attention.
In evidence the Applicant admitted that for several years she had suffered anxiety or considerable stress and anxiety. This seems to have been brought on by workplace conditions. Dr Kostos, I think, sought to make much of this factor in his evidence, and to quote the Applicant herself, seemed to be saying all my problems are psychological.
I have firmly rejected this aspect of the evidence of Dr Kostos, which was beyond his field of expertise.
In any event, it seems to me to be entirely possible, that someone anxious or stressed can still suffer a workplace injury in exactly the same way that the Applicant describes. I reject the notion advanced by the Respondent that the cause of the Applicant’s injury is non-employment related because for instance, she is an anxious or stressed person who may suffer pain from the injury more readily or who may suffer abatement of symptoms when relatively stress-free.
The Respondent offered no psychiatric evidence in support of such a view.
I would add my view that even persons who are anxious and who get easily upset by workplace conditions are within the purview of the Act. The Act does not compensate only those who are stress-free. Workplace stress is a feature of the modern workplace which is accommodated by the Act and does not displace compensation entitlements.
I am satisfied the Applicant’s work with the Department of Defence has caused or contributed to her injury. That is, that it arose out of or in the course of her employment.
Further, I am satisfied that as a result the Applicant did suffer incapacity and that her injury was caused by or contributed to, to a significant degree, by her employment. That is to say, as regards the degree of contribution, I am satisfied on the evidence that it was substantially more than material. The decision in Re Cross andComcare [2018] AATA 52 is not binding on me, and I have not found it useful for a number of sound reasons. There are a number of infelicities in the reasons of Cross. I find that the Applicant satisfies the requirements of both s 5A and 5B of the Act.
In this regard also I rely upon the evidence of Dr Stockman who, relying on what the Applicant told him, attributed her injury to her employment. I rely also upon the evidence of Dr Towie who is in a similar position and Dr Leer who said she was unaware of any non-employment related provoking factors. Dr Lewis is rather more specific in attributing the Applicant’s pain syndrome to her employment.
In that regard I would repeat that I have found that the Applicant’s regional pain syndrome follows on from her lateral epicondylitis. If the latter is employment caused, as I find, then so, too, is the former in my view.
OUTCOME
It follows that for the reasons I have given, the decisions in both proceedings must be set aside and appropriate substitute decisions made.
I shall accordingly also make orders under section 67 of the SRC Act with respect to costs and disbursements.

I certify that the preceding 140 (one hundred and forty) paragraphs are a true copy of the reasons for the decision herein of Damien Cremean, Senior Member

[sgd]........................................................................
Associate
Dated: 2 October 2019

Dates of hearing: 26-28 February 2019

Counsel for the Applicant: Mark Carey

Solicitors for the Applicant: Arnold Thomas & Becker Lawyers

Counsel for the Respondent: William Thomas

[2019] AATA 4003

2 October 2019

Key Legal Topics

Areas of Law

Employment Law

Statutory Interpretation

Legal Concepts

Causation

Statutory Construction

Remedies

Dates of hearing:	26-28 February 2019
Counsel for the Applicant:	Mark Carey
Solicitors for the Applicant:	Arnold Thomas & Becker Lawyers
Counsel for the Respondent:	William Thomas