Farrer and Comcare (Compensation)
[2015] AATA 691
•10 September 2015
Farrer and Comcare (Compensation) [2015] AATA 691 (10 September 2015)
Division
GENERAL DIVISION
File Number
2015/1929
Re
Kate Farrer
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal Deputy President P E Hack SC
Date 10 September 2015 Place Brisbane The decision under review is affirmed.
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Deputy President P E Hack SC
CATCHWORDS
COMPENSATION – whether respondent liable for applicant’s neuropathy or chronic neuropathic pain – does applicant suffer from claimed condition – whether claimed condition was contributed to, to a significant degree, by employment – absence of reliable diagnosis – absence of reliable evidence pointing to necessary connection between symptoms and employment – reasoning of specialist practitioners sound – reasoning of general practitioners absent or unconvincing – evidence fails to demonstrate connection – decision under review affirmed.
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 4, 5A, 5B, 14
REASONS FOR DECISION
Deputy President P E Hack SC
10 September 2015
Introduction
The applicant, Mrs Kate Farrer, commenced employment in an administrative/clerical role in the Department of Defence in early 2007. She says that from about June 2008 she commenced experiencing pain in her back. The pain gradually increased over the ensuing years. Mrs Farrer says that the pain is attributable to the nature and conditions of her employment by the Commonwealth.
In February 2013 Mrs Farrer made a claim to the respondent, Comcare, for compensation for a condition she described as “neuropathy or chronic neuropathic pain”. Her claim was rejected. She seeks a review of Comcare’s reviewable decision.
Background
Mrs Farrer was born in 1971 and is now aged 44 years. Prior to 2007 Mrs Farrer served in the Royal Australian Air Force. Medical records from that service demonstrate that Mrs Farrer had no history of back pain prior to her employment in the Department of Defence.[1] Comcare does not suggest otherwise.
[1] Exhibit 3, pages 1 – 34.
The nature of Mrs Farrer’s duties were described by her supervisor as being
… of a sedentary nature involving predominantly extensive computer work and sitting in meetings.[2]
On the history given by Mrs Farrer to Dr David Douglas, a consultant occupational physician,[3] she first experienced back pain, particularly in the region of the left sacroiliac joint, in about June 2008. She was treated with physiotherapy and anti-inflammatory medication and continued full-time work. The pain persisted. During August 2011 she had a desmoid tumour surgically excised from the left sacral region against the possibility it was occasioning the continuing pain, however, the pain persisted after she recovered from the surgery.
[2] Exhibit 3, page 35.
[3] Exhibit 2, page 181.
In late 2011 Mrs Farrer developed pain in the back of her left thigh. She took extended leave towards the end of 2011 and returned to work in January 2012. In that year, from around August 2012, Mrs Farrer developed a distinct limp with pain extending down the back of her left leg into her toes. She took extended leave in December 2012 and returned to work in January 2013. The back and leg pain continued and Mrs Farrer reduced her hours of work to 20 hours per week.[4]
[4] Exhibit 2, pages 86 – 87.
In November 2012 Mrs Farrer saw Dr Scott Masters, a general practitioner with post-graduate qualifications in musculoskeletal medicine. He apparently treated her with injections for the pain but without success.
Mrs Farrer lodged her claim for compensation in February 2013 supported by a report from her general practitioner, Dr Leisa Andrews, describing Mrs Farrer’s condition as neuropathic pain. On 7 May 2013, Comcare determined that it was not liable to pay compensation to Mrs Farrer although its delegate was satisfied that Mrs Farrer suffered from an ailment, as that term is used in the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act), neuropathic pain to the lower back. That decision was affirmed on reconsideration on 31 October 2013.
On 27 December 2013, Mrs Farrer lodged an application in the Tribunal (2013/6989) to review the decision of 31 October 2013. Following a hearing in November 2014 the Tribunal, differently constituted, decided on 18 December 2014 to set aside the reviewable decision of 31 October 2013 and remitted the case to Comcare for re-consideration.[5] No directions or recommendations were made by the Tribunal.[6]
[5] See [2014] AATA 943.
[6] See s 43(1)(c)(ii), Administrative Appeals Tribunal Act 1975 (Cth).
Thereafter, on 5 March 2015, Comcare made the decision in issue in these proceedings; its delegate affirmed the earlier decision. These proceedings were then commenced.
The legislative scheme
By virtue of s 14 of the SRC Act, Comcare is liable to pay compensation in accordance with the Act in respect of an “injury” suffered by an employee if the injury results in death, incapacity for work, or impairment. Mrs Farrer is undoubtedly an employee and her condition has, at least, resulted in incapacity for work; the question is whether it amounts to an injury. That term is defined in s 5A(1) of the SRC Act as meaning:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee's employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee's employment.
The term “disease” is defined by s 5B(1) of the SRC Act as meaning:
(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.
Finally, “ailment” is defined in s 4 of the SRC Act as meaning:
any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
The critical issue in the present case is the connection between Mrs Farrer’s condition, which is undoubtedly an ailment, and her employment: did it arise out of or in the course of her employment (if it was an injury simpliciter) or was it contributed to, to a significant degree, by that employment (if it was a disease).
The medical evidence
The case presented by Comcare suggests that two issues arise for determination:
(a)does Mrs Farrer suffer from the claimed conditions, neuropathy and chronic neuropathic pain; and
(b)if so, has the claimed condition been contributed to, to a significant degree, by her employment.
As it seems to me, the first issue is not as narrow as Comcare suggests although I need not reach a concluded view on the matter. Mrs Farrer has identified symptoms that point to the existence of a physical disorder. I am not convinced that the absence of a reliable diagnosis, in and of itself, would be fatal to her claim if otherwise the issue of causation was satisfied. But the absence of a reliable diagnosis does highlight the difficulty in demonstrating the necessary connection between Mrs Farrer’s condition and her employment.
I accept, as Comcare submits, that there is no reliable diagnosis of Mrs Farrer’s condition. Dr John Cameron, a consultant neurologist, was unable to offer a diagnosis.[7] The symptoms, he thought, suggested left-sided sciatica with predominant S1 nerve disturbance. Nerve conduction tests and blood studies were normal. In his oral evidence in the earlier hearing, Dr Cameron referred to the absence of “underlying identifiable pathology”.[8]
[7] Exhibit 1, page 91.
[8] Exhibit 4, page 50.
Dr Douglas concluded that Mrs Farrer’s physical symptoms were most probably due to an ongoing muscle tension state contributed to by psychogenic factors. Dr Masters used the expression “occupational overuse syndrome”, however, as Dr Douglas pointed out, it is impossible to comprehend how sitting in a chair, even a poorly adjusted one, could amount to “overuse”. Dr Masters did not proffer any particular diagnosis; he described Mrs Farrer’s condition as “persistent somatic lumbarscaral pain”.[9] Similarly, Dr Leisa Andrews, Mrs Farrer’s general practitioner, described her condition as chronic neuropathic pain. But, as Dr Cameron said, neuropathic pain describes the symptoms, it gives no insight into the cause of the disturbance.
[9] Exhibit 2, page 169.
Ultimately the problem for Mrs Farrer is not the absence of a precise diagnosis, it is the absence of any reliable evidence pointing to the necessary connection between her collection of symptoms, however described, and her employment. The specialist practitioners who have examined her, Dr Cameron and Dr Douglas, each rejected any connection for reasons that appear quite sound. Dr Cameron, whilst accepting the existence of a severe pain disturbance, would have expected a significant improvement in Mrs Farrer’s disorder once she stopped work (as she did in October 2013) had there been such a connection. The absence of that improvement led him to conclude that her employment did not cause, or play any significant part in, the development of the pain disorder.[10] Dr Douglas concluded that the condition developed spontaneously and was not one caused or even aggravated by her work.[11]
[10] Exhibit 1, page 92.
[11] Exhibit 2, page 190.
The only support for the presence of a causal relationship comes from two general practitioners whose reasoning is absent or unconvincing. Dr Masters considered that prolonged postures at work could be associated with “pain states” which he thought “could be one explanation” for the pain.[12] He described prolonged postures as a “possible trigger” for the pain and noted that it was “possible” that sedentary office employment would cause the symptoms, but he then elevated those possibilities to a probability that work significantly contributed to or aggravated the condition. His reasoning is, with respect, entirely absent. Mr Farrer, who represented Mrs Farrer at the hearing, pointed to various publications that suggested that the maintenance of constrained or awkward positions might cause occupational overuse syndrome but there is no evidence that Mrs Farrer was required to maintain a constrained or awkward position. Common sense suggests that in her employment setting she relieved any pain or discomfort by altering her posture. That is the conventional and learned response of humankind.
[12] Exhibit 2, page 169.
Dr Andrews expressed the opinion that it was probable that the sedentary nature of Mrs Farrer’s employment “significantly aggravated and worsened her condition”,[13] but again there is absent any reasoning for that conclusion.
[13] Exhibit 2, page 164.
I prefer the view of Dr Cameron and Dr Douglas. They are better qualified and their conclusions are more logical and better explained. Whilst I accept Mrs Farrer is genuinely convinced that a connection exists between her pain condition and her employment the evidence does not demonstrate that connection. Employment may have been an occasion for Mrs Farrar’s pain; I am not satisfied that it was the cause of it.
It follows that Comcare’s decision was correct and ought be affirmed.
I certify that the preceding 19 (nineteen) paragraphs are a true copy of the reasons for the decision herein of Deputy President Hack SC
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Associate
Dated 10 September 2015
Date of hearing 2 September 2015 Advocate for the Applicant Mr D Farrer Counsel for the Respondent Ms E Ford Solicitors for the Respondent Sparke Helmore
Key Legal Topics
Areas of Law
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Employment Law
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Administrative Law
Legal Concepts
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Causation
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Statutory Construction
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Appeal
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Remedies
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