Dufty and Comcare
[2008] AATA 1011
•10 November 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 1011
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A 200500118, 2007/3277
GENERAL ADMINISTRATIVE DIVISION ) Re DONNA DUFTY Applicant
And
COMCARE
Respondent
DECISION
Tribunal J.W. Constance, Senior Member
Dr P. Wilkins MBE, Member
Date 10 November 2008
Place Canberra
Decision Application A2005/118
1. The reviewable decision of Comcare made 3 May 2005 denying liability to compensate Ms Dufty for medical expenses and incapacity arising after 16 December 2004 and claimed to arise from an injury sustained by her on 22 November 2002 is affirmed.
Application 2007/3277
2. The decision of Comcare made 12 June 2007 denying liability to compensate Ms Dufty for injuries suffered by her on 22 November 2002 is set aside. In substitution therefore it is decided that pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) Comcare is liable to compensate Ms Dufty in respect of the following injuries:
1) cervical and cervicodorsal myalgia;
2) chronic adjustment disorder with anxiety and depression;
3) headaches.
3. In relation to Application 2007/3277, the parties have liberty to apply within 14 days in relation to costs. Should such an application not be made, Comcare shall pay the costs of the proceedings incurred by Ms Dufty.
..........[Signed].......................................
J.W. Constance, Senior Member
CATCHWORDS
COMPENSATION – decision to cease payment of compensation - whether Applicant had ceased to suffer effects of accepted injury – whether circumstances giving rise to injury have changed - decision affirmed.
COMPENSATION – whether ‘injuries’ contributed to in a ‘material degree’ by employment – injuries contributed to in a material degree by employment – decision set aside and substituted.
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 14
Commonwealth of Australia v Borg (1994) 20 AAR 299
REASONS FOR DECISION
INTRODUCTION
4.On 22 November 2002 Ms Dufty was injured when she slipped and fell as she was walking through a shopping centre during her lunch hour. Comcare accepted liability to compensate her in respect of the following injuries:
·neck sprain
·sprain of shoulder and upper arm (right)
·contusions of wrists and hands, except fingers
·ankle sprain (bilateral)
·sprain of other specified sites of hip and thigh (right).
5.On 3 May 2005 Comcare affirmed an earlier determination that as at 7 January 2005 it was not liable to pay compensation for medical expenses and/or incapacity arising from the accident. The reason for this decision was that at that time Ms Dufty did not suffer from the effects of the compensable injuries. .
6.In August 2006 Ms Dufty claimed to have suffered the following conditions arising from the previously accepted injuries:
·cervical and cervicodorsal myalgia;
·lumbar injury;
·chronic adjustment disorder with elements of anxiety and depression;
·headaches.
Comcare denied liability to compensate her in respect of these conditions.
7.Ms Dufty is seeking a review of each of these decisions.
8.For the reasons which follow the decision that Ms Dufty has ceased to suffer the effects of the previously accepted injuries will be affirmed. The decision rejecting liability to compensate Ms Dufty for any of the additional injuries claimed will be set aside and a decision that Comcare is liable to compensate Ms Dufty in respect of the myalgia, the adjustment disorder and the headaches will be substituted.
THE ISSUES
9.In reaching the conclusions we have outlined, the following issues required determination:
1)has Ms Dufty suffered the effects of the accepted injuries at any time between 7 January 2005 and the date of this decision;
2)is Comcare liable to compensate Ms Dufty in respect of the injuries claimed by her in August 2006?
MS DUFTY’S ARGUMENT
10.In relation to the previously accepted injuries Ms Dufty argued that her condition had not changed at the time Comcare decided to cease liability to compensate her and that she continues to suffer the effects of those injuries.
11.In relation to additional injuries claimed it was argued that Ms Dufty suffered an injury (other than a disease) arising out of, or in the course of, her employment as it was reasonable to conclude that when she fell she suffered a change in her pathological state. We take this argument to relate to the lumbar injury. Further, it was argued that as she was asymptomatic before the fall and became symptomatic immediately afterwards, there has been an aggravation of an ailment, namely an underlying degenerative condition in her spine. It was put that in Ms Dufty's case there has been an acceleration of the underlying condition.[1]
[1] In section 4 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) “aggravation” is defined to include “acceleration”.
Evidence of Ms Dufty
12.Ms Dufty told us that prior to her fall in 2002 she felt very happy with her physical condition and was training for events in the ACT Swimming Masters competition. She was training three times per week, she was walking daily and doing weights training. At the time of the accident she held four Masters swimming records and felt fit and strong. She denied suffering any ongoing pain in her back or her neck in the months leading up to the accident.
13.When she fell Ms Dufty put her hands back to break her fall. She landed on her hands (with her arms outstretched backwards) and on her right buttock. She remained on the floor for a few minutes and then was able to walk back to her workplace, approximately 150 meters away. The same day she consulted her general practitioner, Dr Paek. She had the following two days off work. Later she had further time off work because of the pain she was suffering. She took part in a graduated return to work program. She says that she tried very hard to return to full-time work as soon as possible and that by August 2003 her condition was improving, but not as quickly as she would have liked. She agreed that there was considerable improvement in her condition in 2003.
14.Ms Dufty says that since her fall she has suffered continuing episodes of pain where her neck joins her shoulder on the right side. She described the pain as a “dull ache” which worsens if she turns her head too far to the right as in swimming. The intensity of the pain varies but she is only pain free after taking medication. She takes medication for pain during the week when working. She tries to avoid taking medication during week-ends, depending on the level of pain she experiences.
15.Ms Dufty also described to us the pain she suffers in the back of her right shoulder. She described the site of the pain as a number of “trigger points”. She feels this pain whenever she turns or tilts her head and it worsens as the pain in her neck worsens. She suffers a “dull pain” which is worsened by turning her head.
16.Since the accident Ms Dufty has continued to suffer pain in her right buttock. She described this pain as “quite severe”, although it varies in intensity.
17.Ms Dufty says that she has suffered an increase in the severity and frequency of headaches since the accident. Prior to the accident she suffered headaches a couple of times per year and a migraine headache once per year. Ms Dufty agreed that during 2003, when the symptoms arising from the fall improved, the headaches became less severe.
18.Since the accident headaches have occurred about twice per week and continue until Ms Dufty takes medication or receives physiotherapy. Migraines occur every 4-6 weeks for which she takes aspirin. She suffered migraines more frequently immediately after the accident.
19.By way of treatment for these conditions Ms Dufty has received acupuncture and hydrotherapy and continues to have monthly physiotherapy to her neck and right hip. She takes medication for pain relief. The pain becomes worse when Ms Dufty is feeling stressed and she believes that her ability to control pain has been affected.
20.Ms Dufty had suffered episodes of back and neck pain prior to November 2002. In her Claim for Compensation form,[2] she disclosed “back pain requiring physio – 1980” and “neck pain requiring physio 1985”. Ms Dufty had experienced pain in her left buttock, which she described as sciatica, in about 1999.
[2] Ex.A11.
Evidence of Dr Griffith
21.Ms Dufty was assessed by Dr Griffith, Consultant Surgeon, in January 2004 at the request of her solicitors. He provided a number of reports[3] and gave evidence. Dr Griffith has a special interest in the treatment of chronic spinal pain.
[3] Exs A2-A7 inclusive.
22.Dr Griffith diagnosed Ms Dufty as having suffered hyperextension injuries to her wrists which had resolved and contusive injury to the muscles of her upper limbs, shoulder girdles and cervico dorsal spine which had largely resolved. However in his opinion she continued to suffer persistent myalgia (muscle pain) in the cervical, cervico-dorsal and lumbar regions as a result of her fall. He said that this pain was a symptom of the injury. Also she was suffering chronic adjustment disorder with elements of depression and anxiety as a consequence of her ongoing pain.
23.Dr Griffith reassessed Ms Dufty in March 2008. In his report of 31 March 2008 he stated:
“… whilst the soft tissue injuries would be considered as having resolved within months in the absence of further physical aggravation, their effects, particularly in the form of abnormal reflex arcs resulting in myalgia and regional muscle spasm may indeed persist for years … I remain of the opinion that the prognosis of psychological sequelae should be good if adequately treated – something which has been done and which has produced marked relief of symptoms.” [4]
[4] Ex.A6.
24.In response to a request that he give his opinion as to the relationship between Ms Dufty’s injuries and her condition in March 2008 Dr Griffith replied:
The degenerative disease seen at multiple levels is of constitutional origin at a basic level. However, it is likely that the fall caused accelerated degenerative change in the cervical region. There is minor aggravation of disc pathology in the lumbosacral region, with a six year gap between the films of 2002 and the films of March 2008 revealing little progression in the level of degeneration, but additional changes referable to L4-5 – more consistent with natural aging processes than with specific trauma. Your client’s current condition is one of chronic pain, and slowly progressing degenerative disease which is primarily idiopathic rather than of post-traumatic origin.[5]
[5] Ex.A6
25.When he gave evidence Dr Griffith explained that the ongoing pain experienced by Ms Dufty was a result of muscle spasm and a subsequent sensitization of the nerve cells which in turn increased her perception of pain. Such pain does not respond readily to ordinary analgesics. In his opinion chronic pain (i.e. experienced for longer than 3 months) is likely to cause sleep disturbance and a psychological condition such as has been experienced by Ms Dufty.
26.In his report of 15 March 2007 [6] (written after he had considered a report from Dr Stevenson to which we shall refer later) Dr Griffith stated:
I largely concur with Dr Stevenson’s assessment, that she has not suffered significant structural injury as a result of the index accident, but that her depression was almost certainly potentiating her pain. I agree with him that soft tissue injuries should have long resolved as it is now more than four years since the index injury.
In relation to Dr Stevenson’s assessment, his conclusions appear to be reasonable. There is no doubt that the depression potentiates pain, a vicious cycle being set up where on element potentiates the other, on an indefinite basis. Effective treatment of depression is of critical importance in resolving any chronic pain state, in addition to sensible use of analgesics and anti-inflammatories. I concur with Dr Stevenson in regard to the use [of] passive physical methods of treatment such as physiotherapy, massage, etc: if they have not been effective in three months in producing sustained progressive relief, they will never achieve cure (as opposed to transient relief).[7]
[6] Ex.A5.
[7] Ex.A5.
MRI Scans
27.In his report of 31 March 2008 Dr Griffith commented upon MRI scans of Ms Dufty’s pelvis and cervical spine carried out in March 2008. These scans confirmed prominent degenerative disc disease at L5/S1 and L4-5 and multilevel degenerative change in the cervical spine. In the opinion of Dr Griffith the results of these scans were entirely consistent with Ms Dufty’s complaints and his clinical findings.
Evidence of Dr Knox
28.Dr Knox, Consultant Psychiatrist, examined Ms Dufty at the request of her solicitors. He assessed her in April 2004 and again in July 2006. Dr Knox provided two reports.[8]
[8] Exs A 16, A 22.
29.After the 2004 examination Dr Knox diagnosed Ms Dufty as suffering from chronic Adjustment Disorder with mixed anxiety and depressed mood to which the injury and consequent pain resulting from the fall had materially contributed.[9] After he assessed Ms Dufty in 2006, Dr Knox reported:
In my first report I commented on the likely effects of Ms Dufty's grief concerning the illness and death of her mother. I believe she has now worked through this matter and her condition now entirely reflects the effects of the fall. [10]
[9] Ex A 16.
[10] Ex A 22.
30.When he gave evidence Dr Knox said that as Ms Dufty had been asymptomatic before the fall and has suffered symptoms continuously since he has concluded that the fall was “a very significant event”. He also said that it is not unusual for pain to be experienced without there being an identifiable physical disability. This is explained by the pain centre in the brain learning to experience pain. As to treatment Dr Knox was of the view that it was reasonable for Ms Dufty to continue with daily anti-depressant medication. He believes her condition is “broadly stable.”
Report of Dr Akkerman, Consultant Psychiatrist
31.Dr Akkerman assessed Ms Dufty in October 2006 at the request of Comcare. His report of 27 October 2006[11] was relied on by Ms Dufty.
[11] Ex.A23.
32.In his opinion at that time Ms Dufty was suffering from an Adjustment Disorder with Anxious and Depressed Mood caused by the pain related to the fall in 2002. He agreed with Dr Knox that Ms Dufty should be treated with Fluxetine but noted that she had stopped this medication which, in his opinion, led to a deterioration in her condition. He assessed the severity of her condition as fairly mild.
33.In a second report dated 11 May 2007,[12] Dr Akkermann indicated that he had reviewed reports by Professor Nade and Dr Stevenson expressing their opinions that the effects of the fall had resolved. Dr Akkerman stated that his opinion expressed in his first report relied solely on the history and symptomatology reported to him by Ms Dufty. He stated that “if there is medical consensus that there is no medical explanation related to the fall of October [sic] 2002 to explain her physical symptoms, then it is not tenable for me to conclude that her condition is secondary to her physical pain. She does suffer from a mild Adjustment Disorder but this Adjustment Disorder is not related to her pain. In my opinion, her condition has a constitutional basis and is not in any way related to the fall in October 2002.”
[12] Ex.A24.
Report of Mr Berg, Physiotherapist
34.In December 2002 Mr Berg reported to Dr Paek that Ms Dufty had “irritated her old back and neck injuries with the impact of the fall”, but that he did not think that she had done any permanent damage.[13]
[13] Ex.A1.
Report of Dr Paek, General Practitioner
35.On 3 June 2003 Dr Paek reported on Ms Dufty's injuries to Comcare. At that time he did not consider that there would be any permanent damage.[14] In a report of 11 August 2004,[15] he stated that at that time Ms Dufty had cervical spine strain and right shoulder strain which had been precipitated by the fall. He stated that “Ms Dufty has not completely recovered to her pre injury physical condition because her capacity to recover is hampered by her age and the vagueness between what aggravates her condition to what is a normal activity.’ In his view at that time it was imperative that Ms Dufty continue with her physical rehabilitation program for another twelve months. Dr Paek also stated that prior to the fall Ms Dufty did not have any relevant conditions.
[14] Ex.A14.
[15] Ex.A19.
Reports of Ms Howell, Physiotherapist
36.A number of reports by Ms Howell are in evidence. She provided hydrotherapy and a supervised gym program for Ms Dufty, beginning in May 2003. In her latest report, dated 18 September 2003,[16] she stated that Ms Dufty was still suffering the effects of her fall and that her recovery had been slowed by factors unrelated to the fall.
[16] Ex.A17.
COMCARE’S ARGUMENT
37.Comcare accepted that Ms Dufty was continuing to suffer pain as described by her when she gave evidence. However it was argued that the injuries suffered in the fall had resolved within several months and that the symptoms from which Ms Dufty now suffers are a result of her underlying degenerative spinal condition. Comcare claims that Ms Dufty's condition improved substantially in 2003, indicating that at that time her injuries had resolved or were in the process of resolving.
Evidence of Professor Nade
38.Ms Dufty was interviewed and examined by Professor Nade, Orthopaedic Surgeon. This took place in September 2004 at the request of Comcare. He provided a report dated 30 September 2004 [17] and gave evidence.
[17] Ex.R13, T63.
39.Professor Nade made relevant diagnoses of possible cervical spondylosis and possible lumbar spondylosis. In his opinion the effects of any injuries sustained in the fall would have resolved within 3-6 months of the fall and he found no evidence of any of the compensable conditions at the time of the examination. It was his view that it was unlikely that the fall made Ms Dufty’s degenerative condition worse. He did find a slight restriction in the range of neck movement which in his opinion was more likely to be a result of cervical spondylosis than the effects of the fall.
Evidence of Dr Stevenson
40.Dr Stevenson, Consultant Physician, assessed Ms Dufty in September 2006. The assessment was at the request of the Solicitors for Comcare. He provided a report of 5 October 2006[18] and gave evidence.
[18] Ex.R4.
41.In the opinion of Dr Stevenson the injuries Comcare has accepted as compensable resolved within approximately three months of the fall. In his view Ms Dufty’s reports of ongoing pain are of “fairly non-specific” pain in the neck and mechanical back pain in the sacroiliac region. He is of the opinion that the interruption of Ms Dufty’s pattern of exercise (particularly swimming), depression and other factors unrelated to the fall are the reason for her pain. In his view there is no physical pathology preventing Ms Dufty returning to swimming to increase her level of fitness and he advised her to do so.[19] He said also that excessive passive manipulation (which includes physiotherapy) may increase her perception of pain.
[19] Ex.R4, p.6.
42.Counsel for Comcare put to Dr Stevenson that Ms Dufty had suffered pain in her neck, back and right buttock before she fell in 2002. Dr Stevenson said that these episodes strengthened his opinion.
Evidence of Dr McGill
43.Dr McGill assessed Ms Dufty in October 2007 and reported on his assessment on 15 October 2007;[20] he gave evidence. Dr McGill is a Consultant Rheumatologist.
[20] Ex.R14.
44.Dr McGill reported that “it is reasonable to conclude that she suffered bruising of the right buttock area and that she may have suffered a musculoligamentous strain of the low back/right buttock region and a minor musculoligamentous strain of the cervical spine region …”[21] When he gave evidence he said that a fall of the nature suffered by Ms Dufty was unlikely to cause structural injury. He had encouraged her to return to swimming.
[21] P.6.
45.Dr McGill is of the view that any injuries suffered by Ms Dufty in the fall may have increased her symptoms arising from pre-existing degenerative changes but the injuries would have resolved within approximately three months.[22] He is also of the opinion that that degenerative lumbar spinal disease is the cause of her right buttock discomfort. In relation to cervical and cervicodorsal myalgia he said that there is no condition other than probable cervical spondylosis in those regions.
[22] Ex.R14.
DETERMINATION OF THE ISSUES
46.In determining the issues we have accepted the evidence of Ms Dufty to which we have referred. We are satisfied that she was an honest witness who gave her evidence to the best of her recollection. We took into account also that a number of the medical practitioners who assessed her believed her to be an accurate historian.
Has Ms Dufty continued to suffer the effects of the accepted conditions at any time since 7 January 2005?
47.When reviewing a decision to cease payment of compensation for an injury in respect of which liability to compensate has been accepted previously it is necessary to decide whether one or more of the circumstances which gave rise to the initial liability have ceased to exist: Commonwealth of Australia v Borg (1994) 20 AAR 299 at 307.
48.We are persuaded that circumstances have changed and that Ms Dufty has not continued to suffer any effects of the several sprains and contusions which were occasioned when she fell in November 2002. In reaching this conclusion we have relied upon the evidence of Professor Nade, Dr Stevenson and Dr McGill. Each of these practitioners has considerable expertise and extensive experience in relevant areas of medicine. We had the advantage of hearing each of them give evidence. Each maintained his opinion when questioned in cross-examination.
49.We have taken into account also that there is an explanation for Ms Dufty’s continuing to experience symptoms other than their being a result of the accepted injuries. Professor Nade, Dr Stevenson and Dr McGill are of the opinion that these symptoms are explicable as being the result of degenerative spinal disease. The existence of this disease in the lumbar spine was confirmed by the Canberra Imaging report of 29 November 2002.[23] Their opinions are supported by the evidence that Ms Dufty suffered pain in her neck, back and right buttock prior to her fall.
[23] Ex.R6.
50.There is further support for the above view in the reports of Dr Paek, Ms Howell and Ms Trevenar which record that Ms Dufty showed considerable improvement during 2003. We have taken into account also the opinions of Dr Paek and Mr Berg, who were treating Ms Dufty in the period of 6-8 months immediately after the accident, that at that time they did not consider that she had suffered permanent damage. In giving evidence Dr Griffith also agreed that the accepted strain conditions were likely to have resolved by the time he examined Ms Dufty.
Is Comcare liable to compensate Ms Dufty in respect of the injuries claimed by her in August 2006?
51.“Injury” is defined in section 4 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) to mean:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee's employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), being an aggravation that arose out of, or in the course of, the employment;but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment.
“Disease” is defined to mean:
(a) any ailment suffered by an employee; or
(b) the aggravation of any such ailment;being an ailment or an aggravation that was contributed to in a material degree by the employee's employment by the Commonwealth or a licensed corporation.
Cervical and cervicodorsal myalgia
52.We are satisfied on the evidence of Dr Griffith that Ms Dufty has suffered an injury described as cervical and cervicodorsal myalgia and that the injury was contributed to in a material degree by her fall. This evidence is supported by the opinion of Dr Knox that depression exacerbates the experience of pain. For the reasons given later in these Reasons for Decision we are satisfied that Ms Dufty suffers depression as a result of the injuries sustained in the fall. We are satisfied on the balance of probabilities that as a result of the process described by Dr Griffith and the exacerbation of the pain of the initial injuries caused by the psychological injury, Ms Dufty is continuing to suffer myalgia.
53.We prefer the evidence referred to above to that of Dr McGill on this question as he bases his view on the conclusion that Ms Dufty is “likely” [24] to have some degenerative change in her cervical spine. However Dr McGill states that he has not seen any reports which confirm this view.
[24] Ex. R14.
Lumbar injury
54.We are satisfied that the x-rays performed in November 2002 (shortly after the accident) showed the existence of significant degenerative disease in the lumbar spine. In the view of Dr Griffith the scan in 2008 showed little progression in the disease but disclosed additional changes in the lumbar area which were more consistent with the ageing process than with specific trauma. Dr Griffith distinguished between the effects of the injury on the cervical spine and the lumbar spine.[25] He concurred with the assessment of Dr Stevenson who was of the opinion that factors other than the fall were causing the pain in the buttock.
[25] Ex.A6.
55.We have considered the opinion of Dr Griffith that Ms Dufty has continued to suffer myalgia in the lumbar region. However Dr Griffith did not explain the basis on which he came to this conclusion. Taking into account the opinions of Dr Stevenson, Dr McGill and Professor Nade we are not satisfied on the balance of probabilities that Ms Dufty suffered an injury to her lumbar region when she fell. The symptoms she suffers are equally explicable a being a result of her degenerative condition.
Adjustment Disorder with mixed anxiety and depressed mood
56.On the basis of the evidence of Dr Knox we are satisfied that Ms Dufty has suffered and continues to suffer chronic Adjustment Disorder with mixed anxiety and depressed mood. Further we are satisfied that this condition is an ailment which was contributed to in a material degree by her employment by the Corporation. Although we have decided that the effects of the accepted injuries had ceased by January 2005 we are persuaded by the opinion of Dr Knox that Ms Dufty’s psychiatric condition has been caused by the pain of her initial physical injuries followed by a process by which the pain centre of the brain learned to experience pain which continued after the physical cause of pain had resolved.
57.The only other evidence from a psychiatrist is the report of Dr Akkerman who initially agreed with the diagnosis of, and cause of, the condition suffered by Ms Dufty. We note that Dr Akkerman has changed his opinion as to the cause of the disorder based on his understanding that there was no medical evidence to relate her physical symptoms to the fall. This was not a correct assumption. We are satisfied that for a period of some months at least Ms Dufty did suffer from the effects of the physical injuries suffered by her. Comcare did not contend otherwise. On the basis of her evidence we are satisfied that the major symptom of the physical injuries suffered by Ms Dufty was the experiencing of pain
58.The conclusion we have reached is supported by the evidence of Dr Griffith that in early 2004 Ms Dufty suffered chronic Adjustment Disorder with elements of depression and anxiety as a consequence of her ongoing pain and related sleep disturbance.
Headaches
59. The evidence as to the cause of the headaches suffered by Ms Dufty is limited. Her evidence that the incidence and severity of headaches (including migraine type headaches) increased immediately after the fall was not challenged and we accept this evidence.
60. We also take into account the evidence of Dr Griffith who was of the opinion that the increased headaches suffered by Ms Dufty were a consequence of her injuries. In his opinion headaches are often associated with the experience of cervicobrachial pain.
61. Dr Knox also accepted that the increased headaches were caused by the fall as he assessed their effect under the Guide to the Assessment of the Degree of Permanent Impairment.[26]
62. On the basis of the above evidence we are satisfied on the balance of probabilities that Ms Dufty’s employment contributed in a material degree to her suffering of headaches.
DECISION
[26] Ex.A18, T52.
Application A2005/118
63.The reviewable decision of Comcare made 3 May 2005 denying liability to compensate Ms Dufty for medical expenses and incapacity arising after 16 December 2004 and claimed to arise from an injury sustained by her on 22 November 2002 is affirmed.
Application 2007/3277
64.The decision of Comcare made 12 June 2007 denying liability to compensate Ms Dufty for injuries suffered by her on 22 November 2002 is set aside. In substitution therefore it is decided that pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) Comcare is liable to compensate Ms Dufty in respect of the following injuries:
1)cervical and cervicodorsal myalgia;
2)chronic adjustment disorder with anxiety and depression;
3)headaches.
65.In relation to Application 2007/3277, the parties have liberty to apply within 14 days in relation to costs. Should such an application not be made, Comcare shall pay the costs of the proceedings incurred by Ms Dufty.
I certify that the 65 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J.W.Constance, Senior Member.
Signed: .........[Signed].............................................................................
Peter Horobin
AssociateDate of Hearing 1-2, 4 September 2008
Date of Decision 10 November 2008
Counsel for the Applicant David Richards
Solicitor for the Applicant Jonathon May
Slater & Gordon Inc. Garry Robb and Assoc.
Counsel for the Respondent Philip Walker
Solicitor for the Respondent Kate WatsonAustralian Government Solicitor