Ferris and Comcare (Compensation) - [2020] AATA 1218

Ferris and Comcare (Compensation) [2020] AATA 1218 (7 May 2020)
Division:GENERAL DIVISION
File Number(s): 2019/0864; 2019/4844
Re:Gail Ferris
APPLICANT

AndComcare
RESPONDENT

Decision
Tribunal:Member W Frost
Date:7 May 2020
Place:Canberra

The Tribunal affirms the decisions under review pursuant to subsection 43(1)(a) of the Administrative Appeals Tribunal Act 1975.
............................................................
Member W Frost
Catchwords
WORKERS’ COMPENSATION – whether the applicant suffered an injury pursuant to section 5A of the Safety, Rehabilitation and Compensation Act 1988 – whether that injury gave rise to permanent impairment under the Safety, Rehabilitation and Compensation Act – degree of permanent impairment under the Comcare Guide - healed fracture of the sacrum – permanent impairment does not meet 10% threshold – decision under review affirmed
WORKERS’ COMPENSATION – whether the applicant suffered an injury pursuant to section 5A of the Safety, Rehabilitation and Compensation Act 1988 – medical expenses – incapacity for work – whether Comcare is presently liable to pay compensation – no present liability – decision under review affirmed
Legislation
Administrative Appeals Tribunal Act 1975 ss 43
Safety, Rehabilitation and Compensation Act 1988 ss 4, 5A, 14, 16, 21A, 24, 27, 28, 62, 64
Cases
Canute and Comcare [2006] HCA 47
Solman and Comcare [2018] AATA 6
Secondary Materials
Comcare, Guide to the Assessment of the Degree of Permanent Impairment (Edition 2.1, 2011)
REASONS FOR DECISION
Member W Frost
7 May 2020
INTRODUCTION

The Applicant, Gail Ferris, fell in 2011 at her workplace, the then Department of Education, Employment and Workplace Relations (Department).
In 2011, Comcare accepted liability in respect of Ms Ferris’ Workers’ Compensation Claim, for ‘fracture of sacrum & coccyx (coccyx only)’, under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act).
In 2018, following an application from Ms Ferris, Comcare declined liability to pay compensation for permanent impairment and non-economic loss in relation to her condition, pursuant to sections 24 and 27 of the SRC Act. Ms Ferris applied to the Tribunal for review of Comcare’s decision.
In 2019, Comcare determined that Ms Ferris was entitled to compensation under section 16 of the SRC Act for her claimed ‘fracture of sacrum & coccyx’ and for time off work in the form of incapacity payments under section 21A of the SRC Act. By way of a reconsideration ‘on its own motion’ under subsection 62(1) of the SRC Act, Comcare found that Ms Ferris was only entitled to compensation up to 18 July 2019, not 1 December 2019 as previously determined. That is, Comcare found it had no present liability to pay Ms Ferris compensation for her injury. Ms Ferris also applied to the Tribunal for review of this decision.
The Tribunal has considered three sets of documents filed in this proceeding on 5 April, 7 May and 12 September 2019, pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (AAT Act),[1] together with the following additional documents:
(a)Applicant’s Statement of Facts, Issues and Contentions filed 20 December 2019;[2]
(b)Statement of Ms Ferris filed 6 May 2019;[3]
(c)Witness Statement of Mr Gavan Brookman, Ms Ferris’ son, filed 10 May 2019;[4]
(d)Comcare’s Statement of Issues, Facts and Contentions dated 14 November 2019;[5]
(e)Medical Report of Dr Mohamad Mourad dated 18 July 2018;[6]
(f)Supplementary Medical Report of Dr Mourad dated 13 September 2019;[7]
(g)Further Supplementary Medical Report of Dr Mourad dated 21 February 2020;[8] and
(h)Extracts of documents produced under summons filed 19 November 2019.[9]
[1] Being Exhibits R5, R6 and R7, respectively.
[2] Exhibit A1.
[3] Exhibit A2.
[4] Exhibit A3.
[5] Exhibit R1.
[6] Exhibit R2, also contained in Exhibit R5.
[7] Exhibit R3.
[8] Exhibit R4.
[9] Exhibit R8.
ISSUES
The issues for the Tribunal to decide in relation to Ms Ferris’ permanent impairment claim are:
(a)whether Ms Ferris suffered an ‘injury’ pursuant to the SRC Act;
(b)if so, whether that injury gave rise to a permanent impairment under the SRC Act; and
(c)if the injury resulted in a permanent impairment, the degree of that permanent impairment and non-economic loss pursuant to sections 24 and 27 of the SRC Act. For an amount of compensation to be payable to Ms Ferris for permanent impairment and non-economic loss, the degree of her whole person impairment assessed under the Guide to the Assessment of the Degree of Permanent Impairment (Guide)[10] must be at least 10%.
[10] Guide to the Assessment of the Degree of Permanent Impairment, Edition 2.1, 2011.
The issues for the Tribunal to decide in relation to Ms Ferris’ claim for present liability are:
(a)whether, on and from 18 July 2019, Ms Ferris suffered an injury pursuant to the SRC Act; and
(b)if so, whether that injury resulted in any incapacity for work and medical treatment under sections 16 and 21A of the SRC Act.
BACKGROUND
On 28 March 2011, while at her place of employment at the Department, Ms Ferris’ chair slid out from under her and she fell.[11] The Incident Report completed by Ms Ferris on the day of this accident contained the following details:
Was bending down to pick up something and the chair went out from underneath me. I fell back, hit my head on the table behind me then also on the leg of the table. I landed quite hard on my coxic [sic] which is in a bit of pain.
[11] Exhibit R5, T3, pages 13-14.
On 31 March 2011, three days after her fall, Ms Ferris had an x-ray of her lumbosacral spine. The accompanying radiologist’s report stated that:[12]
Focal step in the lower sacrum, with slightly angulated distal/lower sacrum angulated anteriorly, consistent with an acute fracture.
The vertebral column is otherwise reasonably well preserved. There is mild degenerative disc disease at the L2/3 level. No associated alignment abnormality.
SI joints are normal allowing for some minor sclerosis around the right SI joints.
The bony pelvis is otherwise intact.
CONCLUSON: Acute fracture of the lower sacrum. This is only minimally angulated. [emphasis added]
[12] Exhibit R5, T4, page 15.
On 28 April 2011, Ms Ferris completed a Claim for Workers’ Compensation in relation to a ‘fractured tailbone/sacrum’.[13]
[13] Exhibit R5, T5, pages 17-32.
On 31 May 2011, Comcare accepted liability in respect of Ms Ferris’ workers’ compensation claim, for ‘fracture of sacrum & coccyx (coccyx only)’, under section 14 of the SRC Act.[14] The Department did not dispute that Ms Ferris’ injury occurred as claimed.[15]
[14] Exhibit R5, T7, page 37.
[15] ibid., at page 40.
On 1 July 2011, Ms Ferris had a CT (or computed tomography) scan of her sacrum. The radiologist reported as follows:[16]
FINDINGS: Focal cortical irregularity at the sacrococcygeal junction with associated sclerosis consistent with a previously healed fracture. The coccyx remnant has a normal angulation which is physiological. No associated soft tissue swelling or fracture line visualised.
Bony pelvis is otherwise intact. Allowing for some minimal degenerative change of the SI joints no focal abnormality demonstrated.
Moderate to marked facet joint arthropathy of the L5/S1 level noted without extraforaminal narrowing. No disc protrusion at this level. Formal lumbar spine has not been performed.
COMMENT: Healed fracture at the sacrococcygeal junction. No evidence of non-union or soft tissue swelling. No cause for pain identified. Moderate facet joint arthropathy at the L5/S1 level. [emphasis added]
[16] Exhibit R5, T8, page 43.
On 1 March 2012, Ms Ferris consulted Dr Bookallil, General Practitioner, in relation to a separate fall not the subject of the reviewable decisions before the Tribunal. The consultation notes recorded:[17]
[17] Exhibit R8, pages 36-37.
Fall at work on Tuesday
slipped while cleaner was washing floor
landed left buttocks
feels ok – a bit stiff, no new pain
oe no buttocks bruising
tender on left buttocks, but equivalent tenderness on right buttocks
good spinal flexion
imp – tenderness from old injury, not new fall
working 6 and 7 hour days
needs commcare [sic] report done. Sent to Dr K Watson, but I haven’t seen request. Gail will have it photocopied and left for me to complete.
Tired at work
starting and finishing later, but doing same hours
gets up at 530 – habit, so would prefer to start and finish earlier
imp – this is not a WC issue, but preferred hours need to be negotiated with boss
On 5 March 2012, Dr Bookallil wrote to Comcare following its request in January 2012 for a medical report regarding Ms Ferris to assist in its management of her claim for the 2011 injury.[18] This report relevantly stated that an x-ray ‘showed an acute fracture of the lower sacrum’; a CT of Ms Ferris’ lower spine ‘showed the fracture had healed’; initial pain and tenderness over the sacrum had resolved and is now ‘present to both the left and right of the sacrum’, but ‘is not explained by the fracture’ and ‘weight loss may help’.[19]
[18] Exhibit R5, T13, pages 55-60.
[19] Exhibit R5, T12, pages 53-54.
On 6 March 2012, Ms Ferris had a CT scan of her lumbar spine. The radiologist reported:[20]
[20] Exhibit R5, T14, page 61.
Lumbar alignment is normal.
At L1/2, no disc protrusion or nerve root impingement is seen.
At L2/3, there is narrowing of the disc space, a mild disc bulge and early facet OA [osteoarthritis] with very early canal stenosis. No nerve root impingement.
At L3/4, there is minimal disc bulge and early facet OA. No canal stenosis or nerve root impingement.
At L4/5, there is mild disc bulge and a small left paracentral disc protrusion indenting the thecal sac and impinging upon the left L5 nerve root. There is early facet OA.
At L5/S1, there is a narrowing of the disc space and a mild disc bulge but no definite disc protrusion seen. Marked facet OA is noted. There is no nerve root impingement
CONCLUSION:
Small left paracentral disc protrusion at L4/5.
Mild disc bulges as described.
Early canal stenosis at L2/3.
Marked facet OA at L5/S1.
On 15 May 2012, Dr Marcus Navin, Occupational Physician, assessed Ms Ferris’ capability to undertake a rehabilitation program pursuant to section 36 of the SRC Act. Dr Navin’s report dated 17 May 2012,[21] relevantly stated that:
Ms Ferris has a degree of hypersensitivity of her gluteal muscle trigger points. The trigger points are not overly active but they are reasonably tender may account for her pain experience.
Ms Ferris also has a sense of entitlement. She has not been provided with sufficient understanding of the circumstances following her recovery from her significant injury. She can be advised by her treaters as to the importance of emotional control in terms of her attachment to these multiple symptoms.
…
Ms Ferris has, as noted above, mild muscle symptomatology in the absence of any skeletal abnormality. A radiology report provided to me by Ms Ferris reveals no abnormality. Ms Ferris, as indicated above, would appear to have an anxiety based over-attachment to her symptoms. I would be confident, with abolition of the tender points by an appropriate stretching program and desensitising program, that these symptoms would abolish and therefore her awareness of hr pain will diminish.
…
It is my opinion that Ms Ferris has the residual and end stage consequences arising from a fall upon her sacrum. She has some reduced healing simply as a consequence of her age. Indeed the x-rays of her spine, recently conducted, show no more than the normal ageing process. There is no evidence that her tenderness is related to abnormalities elsewhere in her spine or pelvis.
…
Ms Ferris would indicate that she is affected by being in a seated position. However by her own report, this would not be persistent to a degree in making her incapable of being at work. She reports being able to sit for up to three hours attending to the requirements of her position. Therefore I would deem that she is fully capable of being at work fulltime.
[21] Exhibit R5, T15, pages 63-67.
On 8 June 2012, Ms Ferris ceased employment at the Department following a voluntary redundancy.[22]
[22] Exhibit R5, T17, pages 69-72.
On 1 September 2012, Ms Ferris underwent an MRI (or magnetic resonance imaging) of her lumbar spine and sacrum.[23] Dr Malcolm Thomson, Radiologist, reported:
CONCLUSION: Lower lumbar spondylosis comprising chiefly facet joint osteoarthritis. Probable healing bilateral sacral fractures, more prominent on the left than the right, but without significant bony displacement. No current coccygeal abnormality demonstrated. [emphasis added]
[23] Exhibit R5, T18, pages 73-74.
On 3 September 2012, Dr Bookallil discussed the MRI results with Dr Thomson. Dr Bookallil’s consultation notes recorded:[24]
MRI - ?healing sacral fractures
spoke to Malcolm Thomson
He went back to previous CT scan from March 2012 and couldn’t see any sacral fractures then
He thinks ?stress fractures of the sacrum
+ reasonable facet joint osteoarthropathy ?causing symptoms
plan – discuss with other senior dr for advice
probably needs referral to orthopaedics
[24] Exhibit R8, pages 42-43.
On 6 September 2012, Dr David McNicol, Consultant Orthopaedic Surgeon, assessed Ms Ferris at Comcare’s request for the purpose of obtaining his opinion regarding the management of ‘Ms Ferris’ claim for the fracture of sacrum and coccyx’.[25] In his report dated 18 September 2012 (detailed further below in these reasons), Dr McNicol diagnosed a ‘Healed fracture of the distal sacrum’.[26]
[25] Exhibit R5, T19.1, pages 85-90.
[26] Exhibit R5, T19, pages 75-84.
On 31 October 2012, Ms Ferris submitted to Comcare a Claim for Permanent and Non-Economic Loss in relation to a ‘fractured coccyx’ and ‘ongoing pain caused by sacral coccygeal disruption’.[27] In August 2013, Comcare made a determination declining liability for this claim because it found that ‘a healed fracture of the sacrum [as diagnosed by Dr McNicol] attracts 5% whole person impairment’, but not the requisite 10% under the Guide in order to receive compensation.[28] On the evidence before the Tribunal, it does not appear that Ms Ferris requested a reconsideration by Comcare of its 2013 determination; Ms Ferris’ claim for permanent impairment and non-economic loss the subject of this proceeding was made in 2018.
[27] Exhibit R5, T21, pages 93-102.
[28] Exhibit R5, T23, pages 105-106.
On 14 October 2013, Ms Ferris attended an appointment with Dr Bookallil and discussed Comcare’s determination declining her claim for permanent impairment and non-economic loss due to her injury. The associated medical records state that Ms Ferris ‘didn’t get Comcare payout. probably gets to 10% impairment on psychiatric condition’.[29] Dr Bookallil also drafted a letter, that was unsigned, but relevantly stated that Ms Ferris:[30]
suffered a fractured coccyx in 2011 at work. She has chronic pain from fracture. In terms of the permanent impairment claim, Gail would not qualify as 10% impaired on the basis of her coccyx fracture. However, she would qualify as 10% impaired in relation to her psychological condition. [emphasis added]
[29] Exhibit R8, page 58.
[30] Exhibit R9.
On 28 April 2016, Ms Ferris underwent a CT scan and x-ray of her lumbosacral spine. The radiologist reported:[31]
L5/S1: Grade 1 anterolisthesis of L5 on S1 (5mm) related to severe degenerative change of the L5/S1 facet joints with hypertrophic change. A broad annular disc bulge also noted…
No focal bony abnormality through the sacrum. No evidence of nonunion of the sacrococcygeal fracture line.
Comment:
Multilevel spondylosis. The patient is focally tender over the site of previous fracture with no evidence of non-union or focal bony cause for symptoms demonstrated. [emphasis added]
[31] Exhibit R8, pages 178-179.
On 2 May 2016, Ms Ferris was assessed by Dr Nicholas Tsai, Orthopaedic Surgeon, who reported that:[32]
The pain over the coccyx is actually only quite mild.
CT scan of her lumbar spine and coccyx shows a healed coccygeal fracture. She also has quite marked L5/S1 facet arthritis.
I think Gail’s main issue is L5/S1 facet arthritis. However we do need to rule out sacroiliac joint pain as well. I have therefore asked for her to have a Spect CT which will cover her lumbar spine, sacroiliac joint and also to some degree the coccyx. [emphasis added]
[32] Exhibit R5, T33, page 135.
On 6 May 2016, following Dr Tsai’s referral, Ms Ferris had a bone scan of her lumbosacral spine and the radiologist reported:[33]
severe inflammatory arthropathy of the L5/S1 facet joints bilaterally, which exhibit intense increased activity at this time. there is no scan evidence of active sacroiliitis.
There are features of right greater trochanteric bursitis/enthesitis. [emphasis added]
[33] Exhibit R8, pages 185-186.
On 23 May 2016, Dr Tsai reviewed Ms Ferris in relation to her lumbar spine and opined that the CT scan confirmed ‘L5/S1 facet arthritis’.[34]
[34] Exhibit R5, T34, page 137.
On 16 January 2017, Comcare made a determination that declined liability under section 14 of the SRC Act to pay compensation for Ms Ferris’ claim for depression.[35]
[35] Exhibit R7, ST1, page 232.
On 9 February 2018, Ms Ferris made a compensation claim with Comcare for permanent impairment and non-economic loss in relation to her physical condition, which she stated to be ‘Coccyx and Sacrum’, however in the same claim form, Dr Afifah Tahir, General Practitioner, characterised this condition as ‘chronic pain in lower back after fracture of coccyx and sacrum’.[36]
[36] Exhibit R5, T44, pages 179-195.
On 6 July 2018, Dr Mohamad Mourad, Orthopaedic Surgeon, assessed Ms Ferris at Comcare’s request.[37] Dr Mourad’s report dated 18 July 2018[38] (which is detailed further below in these reasons) concluded that ‘Ms Ferris’ workplace-related sacrococcygeal fracture has united and is no longer the cause of her current signs and symptoms’[39] and ‘I do not consider Ms Ferris suffers from a permanent impairment as a result of her workplace-related condition’.[40]
[37] Exhibit R5, T46.1, pages 213-220.
[38] Exhibit R5, T46, pages 203-212.
[39] ibid., page 209.
[40] ibid., page 211.
On 8 July 2018, Dr Tahir provided a medical report to Comcare, following its request in May 2018, which relevantly stated that:[41]
Gail has constant lower back pain due to nerve impingement at sacro coccygeal junction that started after she fell off the chair at work. At that stage she had bilateral sacral fractures and [sic] excruciating nerve pain. Pain never subsided and is constant since the latest CT scan showed obliteration of nerve exit foramina which are highly likely due to malunion of fracture healing.
[41] Exhibit R5, T45, page 197; T45.1, pages 199-202.
On 28 August 2018, Comcare made a determination declining liability to pay compensation to Ms Ferris for permanent impairment and non-economic loss in relation to her condition pursuant to sections 24 and 27 of the SRC Act.[42]
[42] Exhibit R5, T49, pages 229-230.
On 18 December 2018, following Ms Ferris’ request for reconsideration of its determination, Comcare affirmed the decision declining liability to pay compensation for permanent impairment and non-economic loss under sections 24 and 27 of the SRC Act.[43] Comcare concluded that the evidence supports a finding that ‘the compensable condition of fracture of sacrum and coccyx has healed, requires no further medical treatment, and does not result in a PI [permanent impairment]’.[44]
[43] Exhibit R5, T1.1, pages 7-10.
[44] ibid., page 8.
On 5 February 2019, Comcare determined that Ms Ferris was entitled to compensation in respect of medical expenses under section 16 of the SRC Act for her claimed ‘fracture of sacrum & coccyx’. Comcare accepted liability to pay reasonable expenses up to 1 December 2019 for general practitioner consultations and ‘one session of pain management’ treatment.[45]
[45] Exhibit R6, T3, pages 19-20.

On 13 February 2019, Comcare determined that Ms Ferris was entitled to compensation for time off work in the form of incapacity payments under section 21A of the SRC Act from 31 January to 1 December 2019.[46]
[46] Exhibit R6, T4, pages 21-22.
On 16 February 2019, Ms Ferris applied to the Tribunal for review of Comcare’s decision of 18 December 2018 declining liability to pay compensation for permanent impairment and non-economic loss under sections 24 and 27 of the SRC Act.[47] Ms Ferris stated in her application to the Tribunal that:
After my injury in 2011 Comcare asked to attend on [sic] of their Doctors and I wish to appeal his decision. He only saw me for 35 minutes and based on that he did not rate me under their guidelines. I took all my medical information which he did not even look at, my Daughter-in-Law Wendy (who I give authority to on all my medical information) was not allowed in. Once my appointment was finished I actually rang Comcare and the lady there said the Doctor was back doing my report. Her comment was he is just copying and pasting from your report in 2012 and for me to return to my doctor which I did do, I can bring that report on my interview.
[47] Exhibit R5, T1, pages 1-5.
On 19 July 2019, by way of a reconsideration ‘on its own motion’ under subsection 62(1) of the SRC Act, and based on Dr Mourad’s specialist opinion, Comcare varied its determinations made on 5 and 13 February 2019 and found that Ms Ferris was only entitled to compensation for medical expenses and incapacity under sections 16 and 21A of the SRC Act up to 18 July 2019, not 1 December 2019 as it had previously determined in February 2019.[48] That is, Comcare found that it had no present liability to pay Ms Ferris compensation under the SRC Act.
[48] Exhibit R6, T1.1, pages 13-15.
On 12 August 2019, Ms Ferris applied to the Tribunal for review of Comcare’s decision of 19 July 2019 varying its earlier determinations of 5 and 13 February 2019 in relation to the period of compensation payable to Ms Ferris for medical expenses and incapacity payments for her condition under sections 16 and 21A of the SRC Act.[49] Ms Ferris in her application to the Tribunal relevantly stated as follows:
From his [Dr Mourad’s] report Comcare decided to reduce the hours they would pay me. It was a separate incident and yet Comcare again changed the Determination and deducted my pay. They just do what they want, they keep changing Determinations to suit themselves always hindering the applicant.
Another incident of changing Determinations was the last letter I received from Comcare, Now they have decided not to pay any more medical expenses or my wages
…
I feel very let down I have done everything they have asked and more, back to drs getting reports and changing certificates as requested by Comcare. They have caused me so much stress, my anxiety levels are very high, I very rarely leave the house by myself as I am afraid of falling. Since my accident I have continual pain (stabbing pain across my bottom which hinders my walking as when it happens my knees and legs jerk and gives me ore pain and am afraid of falling). I am unable to walk long distances, sit or stand for long period of time as the pain is unbearable. My legs just don’t work properly any more and because if tat I had a Venus Ulsar for 8 months (which meant my right leg was covered from tow to knee in double compression bandages) this hindered my life so much, was unable and still am unable to do many things. Also feeling that anything my drs say doesn’t count or matter its only what Dr Morad has stated and Comcare believe his report yet I have been treated my drs for years. And know Dr Morad was copy and pasting from a previous report, again I was told by a staff member this was happening. Every aspect of my life has been damaged by this accident. [errors in original]
LEGISLATIVE INSTRUMENTS
[49] Exhibit R6, T1, pages 1-12.
The SRC Act
Subsection 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.
Section 4 of the SRC Act defines ‘impairment’ to mean:
the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function.
Section 4 of the SRC Act also defines ‘permanent’ to mean ‘likely to continue indefinitely’.
‘Injury’ is defined in subsection 5A(1) of the SRC Act relevantly to mean:
(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...
Section 16 of the SRC Act sets out when compensation is payable in respect of medical expenses, relevantly as follows:
(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 21A of the SRC Act sets out how compensation is payable for injuries resulting in incapacity if the employee is in receipt of a superannuation pension and lump sum benefit.
Section 24 of the SRC Act sets out when compensation is payable for injuries resulting in permanent impairment, relevantly as follows:
(1) Where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury.
(2) For the purpose of determining whether an impairment is permanent, Comcare shall have regard to:
(a) the duration of the impairment;
(b) the likelihood of improvement in the employee’s condition;
(c) whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; and
(d) any other relevant matters.
(3) Subject to this section, the amount of compensation payable to the employee is such amount, as is assessed by Comcare under subsection (4), being an amount not exceeding the maximum amount at the date of the assessment.
(4) The amount assessed by Comcare shall be an amount that is the same percentage of the maximum amount as the percentage determined by Comcare under subsection (5).
(5) Comcare shall determine the degree of permanent impairment of the employee resulting from an injury under the provisions of the approved Guide.
(6) The degree of permanent impairment shall be expressed as a percentage.
(7) Subject to section 25, if:
(a) the employee has a permanent impairment other than a hearing loss; and
(b) Comcare determines that the degree of permanent impairment is less than 10%;
an amount of compensation is not payable to the employee under this section.
…
(9) For the purposes of this section, the maximum amount is $80,000.[50]
[50] The ‘maximum amount’ payable under subsection 24(9) of the SRC Act from 1 July 2019 is $192,717.77. Accordingly, the current amount of compensation for a degree of impairment of 10% under section 24 is $19,271.77. This excludes compensation for non-economic loss under section 27 of the SRC Act. Refer to: accessed on 20 April 2020.
Section 27 of the SRC Act provides for Comcare’s liability to pay additional compensation for ‘non-economic loss’ suffered by an employee as a result of an injury resulting in permanent impairment pursuant to section 24 of the SRC Act. Under section 4 of the SRC Act, ‘non-economic loss’ means ‘loss or damage of a non‑economic kind suffered by the employee (including pain and suffering, a loss of expectation of life or a loss of the amenities or enjoyment of life) as a result of that injury or impairment and of which the employee is aware’.
The ‘approved Guide’ referred to in section 24 of the SRC Act for the purposes of assessing the degree of a person’s permanent impairment is defined in section 4 to mean ‘the document, prepared by Comcare in accordance with section 28 under the title “Guide to the Assessment of the Degree of Permanent Impairment”, that has been approved by the Minister and is for the time being in force’ and ‘if an instrument varying the document has been approved by the Minister–that document as so varied’.
Section 28 of the SRC Act provides legislative authority for the Guide and for the Tribunal to be bound by the provisions of the Guide, and is set out relevantly as follows:
(1) Comcare may, from time to time, prepare a written document, to be called the “Guide to the Assessment of the Degree of Permanent Impairment”, setting out:
(a) criteria by reference to which the degree of the permanent impairment of an employee resulting from an injury shall be determined;
(b) criteria by reference to which the degree of non‑economic loss suffered by an employee as a result of an injury or impairment shall be determined; and
(c) methods by which the degree of permanent impairment and the degree of non‑economic loss, as determined under those criteria, shall be expressed as a percentage.
(2) Comcare may, from time to time, by instrument in writing, vary or revoke the approved Guide.
(3) A Guide prepared under subsection (1), and a variation or revocation under subsection (2) of such a Guide, must be approved by the Minister.
(3A) A Guide prepared under subsection (1), and a variation or revocation under subsection (2) of such a Guide, is a legislative instrument made by the Minister on the day on which the Guide, or variation or revocation, is approved by the Minister.
(4) Where Comcare, a licensee or the Administrative Appeals Tribunal is required to assess or re‑assess, or review the assessment or re‑assessment of, the degree of permanent impairment of an employee resulting from an injury, or the degree of non‑economic loss suffered by an employee, the provisions of the approved Guide are binding on Comcare, the licensee or the Administrative Appeals Tribunal, as the case may be, in the carrying out of that assessment, re‑assessment or review, and the assessment, re‑assessment or review shall be made under the relevant provisions of the approved Guide.
(5) The percentage of permanent impairment or non‑economic loss suffered by an employee as a result of an injury ascertained under the methods referred to in paragraph (1)(c) may be 0%.
(6) In preparing criteria for the purposes of paragraphs (1)(a) and (b), or in varying those criteria, Comcare shall have regard to medical opinion concerning the nature and effect (including possible effect) of the injury and the extent (if any) to which impairment resulting from the injury, or non‑economic loss resulting from the injury or impairment, may reasonably be capable of being reduced or removed.
Subsection 62(1)(a) of the SRC Act provides that Comcare may, on its own motion, ‘reconsider a determination made by it’.
Finally, subsection 64(1)(a) of the SRC provides that an application to the Tribunal for review of a reviewable decision made under section 62 of the SRC Act may be made by ‘the claimant’, here being Ms Ferris.
The Comcare Guide
The relevant Comcare Guide, being the document prepared by Comcare and approved by the Minister pursuant to section 28 of the SRC Act, is the Guide to the Assessment of the Degree of Permanent Impairment, Edition 2.1, 2011, which took effect from 1 December 2011 in relation to claims received by the ‘relevant authority’ (here, Comcare) under sections 24, 25 or 27 of the SRC Act.
The Guide refers to subsection 24(5) of the SRC Act which, as set out above, provides for the determination of ‘the degree of permanent impairment of the employee’ resulting from an injury, being the employee as a whole person. In this regard, the Guide notes that the ‘whole person impairment’ concept ‘provides for compensation for the permanent impairment of any body part, system or function to the extent to which it permanently impairs the employee as a whole person’.
It is further noted that Part 1, Division 1 of the Guide, dealing with the assessment of the degree of an employee’s permanent impairment resulting from an injury, is ‘based on the concept of whole person impairment which is drawn from the American Medical Association’s Guides to the Evaluation of Permanent Impairment 5th edition 2001’. To this end, Division 1 of the Guide ‘assembles into groups, according to body system, detailed descriptions of impairments’, which are expressed as a percentage value of ‘the whole, normal, healthy person’. As a result, a percentage value can be assigned to an employee’s impairment by reference to the relevant description in the Guide, noting that there is no discretion to attribute a percentage value not specified in the relevant impairment table. For an amount of compensation to be payable to Ms Ferris for permanent impairment and non-economic loss, the degree of her whole person impairment assessed under the Guide must be at least 10%.
Table 9.18 of the Guide regarding fractures of the pelvis, including fractures of the sacrum and of the coccyx, assigns a percentage degree of whole person impairment for such fractures as follows (emphasis added):[51]
[51] Guide at page 167.

% WPI Criteria (one required—
different conditions may be assessed separately)

0
Healed fracture:

·     without displacement or residual signs

·     of one or both rami with displacement but without residual signs

·     of ischium or ilium with displacement but without residual signs

·     of coccyx with displacement but without residual signs

·     of one pubic ramus with displacement, deformity and residual signs.

2 Healed fracture of ilium with displacement, deformity and residual signs.

5
Healed fracture of:

·     sacrum with displacement but without residual signs

·     symphysis pubis without separation and without residual signs

·     both pubic rami with displacement, deformity and residual signs.

Non-union of coccyx fracture.
Excision of coccyx.

10
Healed fracture of:

·     ischium with displacement of 2.5cm or more, deformity and residual signs

·     sacrum involving sacro-iliac joint.

15 Healed fracture of symphysis pubis with separation or displacement.

Evaluate in accordance with
Table 9.4 Fracture involving acetabulum.
CONTENTIONS
Ms Ferris

By way of opening submissions at the Tribunal hearing, Ms Ferris contended that she had sustained a ‘fracture of the coccyx and crushed sacrum’.[52]
[52] Transcript of Hearing, page 14.
It was submitted that two medical practitioners Ms Ferris wished to call to give evidence to the Tribunal were unavailable. However, Ms Ferris contended that Comcare previously had no issue with any medical certificates from her treating practitioners regarding her injury and that she had done everything asked of her by Comcare in relation to treatment and rehabilitation for her injury. In this regard, and in relation to those practitioners, Ms Ferris submitted that it was inappropriate for Comcare ‘to disregard their comments as the comments that they made leading up to the final decision, were all okay and all approved and there was no issues whatsoever’.[53]
[53] ibid., page 16.
Ms Ferris took fundamental issue with the assessment and report of Dr Mourad. Ms Ferris submitted that her appointment with Dr Mourad was insufficient, at ‘just over 15 minutes’,[54] to cover the required information to form an adequate assessment of her condition and there were ‘definitely things that were missed’.[55] Ms Ferris also took issue with Dr Mourad not allowing her daughter-in-law, Ms Brookman, to be present for the assessment, which made her uncomfortable and was unlike her other medical appointments. In relation to Dr Mourad’s assessment that other issues were causing her problems, Ms Ferris submitted that she was ‘already tackling’[56] her arthritis and weight issues, however her limited movement led to other issues such as anxiety and increased pain.
[54] ibid.
[55] ibid., page 15.
[56] ibid.
In relation to Ms Ferris’ incapacity, it was contended that she commenced work at a business owned by her son and daughter-in-law with a three-hour block of work in a one-week period, but the pain associated with walking up and down approximately 26 stairs was ‘too much’.[57]
[57] ibid., page 16.
It was submitted that before the injury in 2011, Ms Ferris was ‘very well respected’ in her job and ‘wasn’t slowing down work any time soon and she was extremely active’.[58] Ms Ferris at that time had six grandchildren and was ‘very active with them’ and ‘had lost the weight, walking between two and 5k’s, no problems, no restrictions’.[59]
[58] ibid.
[59] ibid., pages 16-17.
At the end of the two scheduled days’ hearings of Ms Ferris’ applications, the Tribunal gave the parties, at their request, leave to file written closing submissions. The following submissions were filed on behalf of Ms Ferris:
On the 28 March 2012 my mother in law Gail Ferris sustained a fracture of sacrum from a fall from her chair at her workplace of which was confirmed by Xray on the 31 March 2011 by Dr Bookallil.
Throughout the past 9 years I have seen my mother loose her independency, her confidence, right in front of my eyes due to this incident.
Throughout this whole process Gail has abided by any requests, rehabilitations, exercises, she worked n our family business when she was told she must find 20hours of work. Gail completed one day of 3 hours and was on bed rest for a day and a half, she has gone above and beyond the recommendations to get her back to having normality in her life.
When we cross examined Mourad regarding Dr David McNicol findings, he agreed that he is of the same qualification and expertise.
In his report dated 18 September 2012 in his subsequent progress/specialist management he noted that the sacral fracture had healed but that she had some facet joint arthopathy at the L5/S1 level. When asked Dr Mourad if an injury or trauma to the spine or area could cause this, he agreed that it could.
From Gails first scan 31 March 2011 which confirmed the fracture, another CT scan was conducted 16 March 2012 which identified early facet joint osteoarthritis which is consistent with post traumatic arthritis. Gail has consistent evidence with doctors about the symptoms that post traumatic arthritis in the affected area which lead to the third MRI scan 1 September 2012.
Dr McNicol noted in this same report from his medical experience that he believed the prognosis could be improved by appropriate intervention which could involve as a first step, a corticosteroid injection into sacrococcygeal junction under x-ray control, but is this was to fail and symptoms continue she would be a potential candidate for coccygeal excision.
My mothers claim for permanent impaired claim was denied by Comcare on 28 August 2019 following an assessment made by Dr Mourad on the 6 July 2018 and followed up with a medico-legal expert report 18 July 2018. Comcare base my mothers denial of permanent impairment on Dr Mourads assessment which when challenged in cross examination, Dr Mourad took the same approach he did in the initial assessment of Gail, which was short aggressive and dismissal. When questioned Dr Mourad explained that each assessment would take between an hour to an hour and half, when asked do all patients have that time he said yes. When questioned about Gails assessment he admitted that Gail didn’t have the appropriate time allocated to asses her. I also note that I was present for the appointment but was denied being present with Gail by Dr Mourad. This goes against what he stated in his report prepared for Comcare 18 July 2018 conducted on the 6 July 2018.
Dr Mourads summary and assessment his advice to Gail to do daily core strength exercises, when questioned if this recommendation was appropriate. When put to him that core exercises daily would in fact cause more pain to the area due to the ongoing restrictions Gail has, Dr Mourad was hesitant with his recommendation.
When questions by the counsel regarding the CT of the lumbar spine 16 March 2012 Dr Mourad gave evidence regarding the “disc bulging at the back and impinging on the canal” He said ‘The protrusion was ‘not likely’ caused by the fall. When questioned, he also admitted that this could be caused by a trauma.
Both Dr Siddiqui and Dr Mourad were of the view that Gails treatment was appropriate given her complaints and comorbidities. Please take into consideration the following treatments Gail under took due to her injury in March of 2011, Corticosteroid injections under CT guidance, physiotherapy, rehabilitation gym programs, pain management programs which lead to a further 6 cortisone injections, 2 anaesthetic injections, additional pain medication, lumbar surgery in 2015 which was radiofrequency neurotomy to 2 nerves. Then in July 2017 a further surgery percutaneous radiofrequency neurotomy to 6 more nerves.
No credible or recommend doctor or specialist would subject Gail to this type of invasive treatment if they weren’t of the impression it would relieve the issue from the incident that took place in 2011. The last only being 3 years ago.
Dr Mourad and Dr Siddiqui suggested that Gail were of the view that Gail could engage in an office role for up to 20 hours per week. As noted in the closing for comcare, Dr Siddiqui did change his opinion in relation to this due to Gails lack mobility and high level of pain and discomfort. When questioned Dr Siddiqui by myself I asked if though Gail wanted to go back to work and could this have factored into you encouraging Gail to work, to which he agreed. Gail was an extremely independent woman who worked in her field for over 17 years. She was very valued at her workplace and had many friends, she was a very highly sort after EA and had many years still left to work. 7 years she had lost her independence due to her injury and lives with constant pain.
She loved to travel, be around family, look after her very active grandchildren, she used to walk everyday and night and wasn’t restricted to distances due to her frame as consistently brought up by the counsel. Many times, the counsel attacked Gail on her BMI and morbid obesity putting all of her symptoms and ongoing issues on this. Gail openly admitted that her frame has been like this most of her life. However, this didn’t stop her from being active, outgoing and caused her no restrictions or pain. In the evidence pulled from her Winnunga file, she has never been treated for any concerns related to her weight or BMI.
The counsel requests that the tribunal should prefer Dr Mourads evidence in relation to the applicants capacity to return to work and permanently impaired case considering that Dr Mourad had the opportunity to assess the applicant during the appointment and thoroughly review medical records, pathology, imaging and all relevant reports.
Given that Dr Mourad admitted during cross examination that Gail didn’t in fact have the appropriate time allocated to have a full assessment, that Dr Mourad noted in his “treatment received” report dated 18^th July 2018 that Gail sustained a fracture of her coccyx and sacrum which showed in the xray ordered by Dr Wilson. Which he the retracted during the cross examination and claimed Gail only had a fracture at the sacrococcygeal.
Comcare have based their whole decision based on Dr Mourads assessment. They no longer trust and accept the professional opinion of Dr Nicols reports, Dr McKewen, Dr Speldewinde, Dr Tsai, Dr Tahir and Dr Saddiqqui.
Evidence was given by Dr McNicol on the 18 September 2012 where he noted in his subsequent progress that while the fracture had healed she (Gail) had some facet joint arthropathy at the L5/S1 level which was from the incident which is the ongoing concerns Gail has.
This injury has done more than affect my mother’s independence, but it has crippled her. It has taken away her ability to work until retirement, it has taken away her ability to travel with family, be active with her grandchildren.
I’m cant believe at how I have been treated, especially when I am in Chronic Pain every day.
This was due to the injury she sustained March 2011 [errors in original]
Comcare

By way of its Statement of Facts, Issues and Contentions dated 14 November 2019,[60] Comcare contended that, on 28 March 2011, Ms Ferris suffered a ‘sacrococcygeal fracture’, but did not fracture her coccyx, contrary to Comcare’s previous description of Ms Ferris’ injury.[61]
[60] Exhibit R1.
[61] Ibid., page 6.
Ms Ferris’ sacrococcygeal fracture was an ‘injury’ pursuant to section 5A of the SRC Act, for which Comcare was liable to pay Ms Ferris compensation under that legislation.
Comcare submitted that, for compensation to be payable under sections 24 and 27 of the SRC Act for permanent impairment and non-economic loss, there must be an ‘injury’ as defined in section 5A of the SRC Act. The ‘injury’ for the purposes of those provisions of the SRC Act must be the injury for which liability was accepted and one which continues to meet the definition of an ‘injury’ set out in section 5A of the SRC Act.[62]
[62] ibid.
Comcare contended that Ms Ferris no longer suffers the accepted injury and did not suffer that ‘injury’ as at 18 July 2019. In this regard, Comcare submitted that Ms Ferris’ current symptoms are due to her degenerative lumbar spondylosis and anterolisthesis, exacerbated by her morbid obesity and venous congestion, which is unrelated to the workplace fall in March 2011. Additionally, there has been no claim made by Ms Ferris in relation to a lumbar spine condition.[63]
[63] ibid.
Comcare relied on the opinion of Dr Mourad, who it said had found that:
(a)Ms Ferris’ compensable condition was a fracture of the sacrum, which had united and healed;
(b)Ms Ferris’ pain symptoms are explained by her diagnosis of ‘lumbar spondylosis including degenerative L5/S1 anterolisthesis [and] morbid obesity’, which was not caused, or aggravated, by the fall on 28 March 2011; and
(c)The underlying pathology in Ms Ferris’ lumbar spine is constitutional, age related and degenerative and not post-traumatic arthropathy.[64]
[64] ibid.
As a result, Comcare contended, Ms Ferris no longer suffers the accepted injury and is not entitled to compensation under section 24 and 27 of the SRC Act for permanent impairment and non-economic loss.[65]
[65] ibid.
Additionally, Comcare submitted that because Ms Ferris no longer suffers the accepted injury she is not entitled to compensation under section 16 and 21A of the SRC Act as she has not suffered any incapacity for work as a result of any injury on or after 18 July 2019, and has not obtained medical treatment as a result of any injury on or after that date.
Accordingly, Comcare contended that the Tribunal should affirm the decisions under review that are the subject of the two-applications Ms Ferris made to the Tribunal.[66]
EVIDENCE
[66] ibid.
Letters of support
The Tribunal sets out, for completeness, the letters in support of Ms Ferris’ claim for compensation that her son, Gavan Brookman, and daughter-in-law, Wendy Brookman, provided to the Tribunal. Mr Brookman stated that: [67]
[67] Exhibit A3.
Before the accident, my mother was an independent woman with a strong work ethic who was able to support herself, she was regularly walking and getting fit and was very outgoing. She was actively involved in her children and grandchildren’s lives.
Since the accident, my mother lives in constant pain. Shae has had numerous procedures, none of which have given her any relief from her constant pain. Due to this pain, she is unable to walk very far and has:
·Sleep apnoea
·Anxiety/depressions
·Skin infections
·Unable to drive or sit down for long periods/travel
·Loss of independence
·Weigh gain/unable to exercise
·Quality of life diminished
As her son it upsets me that this once vibrant woman who was active and independent can’t even leave the house or be active in her grandchildren’s life, needs to rely on others to do normal everyday functions she was once able t do by herself, struggles financially because she can no longer work and whose overall health has deteriorated immensely. I feel useless as I have n way to ease the constant pain she lives with nor give her back the quality of life she once had. [errors in original]
Ms Brookman relevantly stated that:[68]
I have known Gail for over 25 years and have been in her life daily for the past 12 years. I have seen the steep decline in my mother in law since her accident in 2011, something that has not only changed her life but affected her family.
My mother was an extremely hands on person who was always active whether that be in the work force, with her grandchildren or in her garden. She took pride in her professional position which was extremely demanding role however she was always a sort after Executive Assistant. I mention these things because when I see her now, and how restricted, withdrawn and limited it breaks my heart.
I have been involved in this process the whole time and have been present at pretty much all of her doctor’s appointments, specialists, Rehabilitation sessions, return to work assessments, everything that we have been recommended and asked to complete. We have tried incorporating every aspect of Gail returning to work that Comcare suggested and we have also sort other support and suggestions on dealing with this ongoing injury to only have nothing help relieve it.
Family trips to the coast are a thing of the past as my mother can’t sit in one position for long periods of time, and when she has tried, it has ended in her being in so much pain that night and the following days. Walking on the beach is completely out due to the unlevel surface and the fear of falling. Walking for any longer that a few minutes is also out of the question, let alone any fast or faster paced movement. My mother lives alone and this is something that causes me huge anxiety as we constantly worry about her.
One of the hardest things to see is my mother loose her confidence and withdraw from the family. I know this accident makes her feel that she burdens the family because she cant do wat she use to do.
Her last specialist appointment that we went to was one recommended and made by Comcare to get a “final” assessment. This is by far one of the most awful reflections of what my other has to deal with on a daily basis. The 15mins that was given to my mother to access her and the report given was appalling. The fact she needs assistance when she first gets off the chair, when we go somewhere for any appointment, we need to check access, are there too man stars? Are there seats available? These are everyday things we need to think about. This accident has affected my mother permanently. Not just physically, but mentally. We would be extremely thankful if you could please consider investigating again her case and over rule the decision made by Comcare in 2018. [errors in original]
[68] Exhibit R6, T6, page 25.
Ms Ferris
Rather than filing a Statement of Facts, Issues and Contentions, Ms Ferris filed a statement in the proceeding, which stated relevantly as follows:[69]
[69] Exhibit A2.
On the 29 March 2011 While working in my fulltime position with DEEWR (Department of Employment, Education & Workplace Relations) at approximately 12noon on 29 March 2011 my chair I was sitting on at my desk slid out from underneath me as I leant down to pick up a pen that had dropped. As a result of the chair sliding out, I fell hard on the floor landing on my tailbone and with the amount of force and momentum I also hit my head on the table behind me. I instantly felt pain in my bottom and head. I sat at my desk and composed myself and tried to stay, but by 3pm the pain became increasingly unbearable, so I left and went home. Due to work place policies I was asked to complete all required forms for an incident report for a work place injury.
After visiting my Doctor and having the subsequent x-rays the diagnoses was a fractured coccyx/crushed sacrum.
On the 31st May 2011 Comcare accepted liability for the injury I sustained based on information provided. From the 31st of May 2011 I was on a graduated a “return to work” until leaving the Department in June 2012 due to not being able to fulfil my position I held for 10 years.
…
My income has been cut severely as the recommended specialist by Comcare Dr Mourads reports states that I can work 20hrs per week, which is impossible for me to do. If this was something possible, I would have already returned back to work in the position I was extremely experienced in and not accessed my super to live off.
Please take the time to read Dr Mourad report. Dr Mourad basically copied and pasted from Dr McNicols report. I rang Comcare after Morauds appointment (before even receiving the report) expressing my concerns about the whole appointment. My complaint was serious, and I felt he was extremely unprofessional. I was informed by a staff member Rachel who told he was in the office and was copying the other report and to contact my doctor as soon as possible, which I did.
…
Since my accident I have not had a full nights’ sleep as the pain wakes me several times during the night. Before my accident medication was only something I took when I became ill and each time was a short course of treatment, this was very rare. Now I take a mixture of medications just to try and get through the day without pain. Its debilitating anyway I look at it. I can’t get through the day with the pain (I have tired) but years of taking several tablets a day is awful. I continually get severe stabbing across my buttock which if it happens when Im standing can case me to be unbalanced which has caused me to nearly fall. I have pain constantly in both my legs which I do believe now is nerve damaged. Before my accident it was part of my daily routine to walk between 5-10km which I really enjoyed. I have been restricted and the walks I used to take I no longer can, which now I know has affected my legs I now suffer from Venus Ulsers and my right leg has been compression bandaged from toes to knee for the past 8 months needing to be redressed 3-4 times a week at its worse. Both my doctors have confirmed his.
What I would like to happen is to have my wage re-structured and backpaid. I also believe any compensation that is required be due payable. This injury has taken my career I worked so hard to get. It has kept me housebound as of my anxiety/depression and the fear of falling again which has deeply affected my confidence. Its very disheartening, I have to get my family or close friends to help me do my basic chores and things around my house and garden that I take so much pride in. I was a very capable and active woman who was outgoing and enjoyed many things including travel. Every aspect of my life has been damaged by this accident.
I have been on the Chronic Pain Register for a number of years now and also diagnosed as below:
Diagnosed Chronic Pain Buttocks 18/06/2013 – Present
Diagnosed Chronic Pain Bilateral 05/12/2014 - Present
Diagnosed Anxiety/Depression 05/12/2014 – Present
Diagnosed Venus Ulser September – Present/Healed [errors in original]
A further statement was filed by Ms Ferris in advance of the hearing, which relevantly stated as follows:[70]
In regards to Dr Morad’s report, I totally disagree with what he has stated.
He only saw me for no more than 35/40 minutes, examined my reflexes and pressure on my feet and made me walk 3 steps, then made his decision based on that. Yes I am over weight but if I could walk I wouldn’t be. We have concerns over Dr Morads report and his opinion of my injuries and arthritis. The stabbing across my buttock happens quite regularly and when it does my knees and legs jerk which causes me more pain. My hips, legs, knees are out of wack because of it. My Dr is considering injecting my hips to try and relieve some pain. Most days the pain is unbearable and some days I don’t even want to get out of bed as I know the pain will start. I hate what this has done to my life, I don’t feel safe outdoors as I have a fear of falling again. I can’t even do my grocery shopping or any shopping without someone with me. I have to watch everywhere I walk, have help with stairs, I am now dependant on using a walking stick. My independence has been taken away from me even my driving. I haven’t driven my car for almost a year. I know my body and I know the affects it has done to it, before my fall I was very active and happy, and to date that has all changed. I have worked my whole life in a high corporate and government position which I took pride in, and believe that this position would have taken me to retirement age. The recommendation for me to go back to work for 20hrs a week which I welcomed until I physically could not complete what was required of me in my field of experience, which impacted me once again. [errors in original]
[70] Exhibit A1.
Examination-in-chief
Ms Ferris gave evidence under oath to the Tribunal at the hearing. In relation to the workplace incident, Ms Ferris said that, while she was sitting, her pen fell on the floor and she ‘rolled down and picked it up and my chair fell out from underneath me and I fell hard on my buttocks area, fell back and crashed my head’.[71] Ms Ferris left work after approximately three hours and saw her doctor the next day.
[71] Transcript, page 18.
Ms Ferris described her ‘daily routine before the accident’ to be an early morning walk before a workday, followed by another walk afterwards, and ‘a normal evening’ at home. Ms Ferris said that ‘in the end, I was practically walking-running the little block that I would do. And now I’d be lucky to walk probably five houses away from where I live’.[72]
[72] ibid.
In addition, Ms Ferris stated that her ‘quality of life is horrible’ and there are days where she does not want to get up or out of bed; her pain is present ‘from the moment I wake up’, although she ‘wasn’t sleeping’ until the recent use of a sleep apnoea machine. The ‘stabbing’ pain she feels occurs ‘across the buttocks which then affects my legs’ means she does not drive. Ms Ferris further said that she worries about falling and was ‘practically housebound unless my kids come and take me shopping’.[73]
[73] ibid.
In relation to Ms Ferris’ appointment with Dr Mourad and his subsequent report, she expressed her dissatisfaction as follows:[74]
I’d asked if Wendy could come in and he said no. He said that wasn’t his practice, something like that. We sat down. I noticed that he had already had documents there which would have been, I think, from a previous document from Dr McNichol, which had all my date of birth…all that type of stuff. Dr Mourad just assumed everything was the same there. He didn’t bother asking any thing of that. He asked me a few questions about the accident. I took in my huge medical folder that I’ve had. He didn’t really - wasn’t interested in looking at that. I actually had to give him my timeline so he could have a look at it. And then he - my appointment went - the speaking side of it probably was about 15 minutes, 20 minutes, maybe. And then he did the examination. I hopped on the medical bed. He did my reflexes then I laid down. He pushed on my legs. He - he pushed on my feet and I had to push on my legs. And I hopped down. He made me walk probably three - three, three and a half, four steps, from one door to the window, and that was it. And he’s decided in that amount of time that - the decisions that he’s come to…So I was quite disappointed with Dr Mourad when I saw the report, you know, especially him just doing my reflexes, pressing on my legs and me walking forward and me walking four steps, he’s decided that, yes, I can go to work for 20 hours a week, yes.
[74] ibid., page 20.
Ms Ferris told the Tribunal that she disagreed ‘a hundred per cent’[75] with Dr Mourad’s findings in his report.
[75] Ibid., page 23.
Following an infected scratch, Ms Ferris said she had a venous ulcer on her lower right leg for a period of eight and a half months, which she attributed to the fall, because of her poor circulation in her legs owing to an inability to exercise.
In relation to pain relief, Ms Ferris said she dislikes taking her prescribed medication, she has had surgeries for nerves to be ‘killed off’,[76] and she has also had cortisone and steroid injections.
[76] ibid., page 22.
Ms Ferris told the Tribunal that she had received incapacity payments from Comcare in the last eighteen months and these were back paid until the time of her injury in 2011. These incapacity payments to Ms Ferris ended in July 2019, following Comcare’s ‘own motion’ reconsideration that it had no present liability for these payments or medical expenses.[77]
[77] ibid.
Cross-examination
Counsel for Comcare put to Ms Ferris that she had the opportunity during the proceeding and in advance of the hearing to seek her own expert evidence in relation to her condition. Ms Ferris agreed with this proposition. Ms Ferris also agreed that she could have requested from her general practitioner the names of people that were appropriately qualified to provide an expert report for the proceeding in relation to her condition. Ms Ferris further agreed that she did not obtain any such expert report.[78]
[78] ibid., page 24.
Counsel asked Ms Ferris about her appointment with Dr Mourad. Ms Ferris confirmed that their discussion was approximately 15 to 20 minutes followed by some exercises. Ms Ferris agreed that Dr Mourad had a number of documents in relation to her condition but maintained that his report was ‘copied and pasted out of Dr McNicol’s report’;[79] Ms Ferris was purportedly told by someone from Comcare that was what Dr Mourad was doing.[80] It was put to Ms Ferris that the reports of Dr Mourad and Dr McNicol are two completely different reports, to which Ms Ferris said she did not know and acknowledged that she did not undertake a comparative analysis of the reports.[81] Ms Ferris also agreed that a doctor is provided with documents, including previous reports and clinical records, x-rays, CT scans and MRIs, in order to assist in forming a professional opinion about a person’s health.[82] Ms Ferris also agreed that the doctor would not be in a position to review all of this documentation in the appointment with the person. Ms Ferris ultimately agreed that a medical professional should look at the whole history of a person and, in that way, Dr Mourad was right to review Dr McNicol’s report from 2012.[83] However, Ms Ferris did not accept that Dr Mourad had the opportunity to review her full medical history in order to form his opinion because he did not review the documentation she had brought to the appointment, despite Counsel putting to her that Comcare had provided Dr Mourad with all of the relevant documentation, which his report was based upon together with her appointment with him.[84]
[79] ibid., page 26.
[80] ibid., page 27.
[81] ibid.
[82] ibid.
[83] ibid., pages 27-28.
[84] ibid., page 29.
Counsel for Comcare asked Ms Ferris about her workplace arrangements after the injury in 2011. Ms Ferris said she accepted a voluntary redundancy in June 2012 because she did not feel competent in doing her work and due to her difficulties sitting at a desk.[85] However, Ms Ferris acknowledged that her office was set up ergonomically after her accident, but this did not improve her ability to sit at the desk for a longer period of time. Ms Ferris also acknowledged that her employer allowed her to take breaks from the desk, although this was not always possible given her busy role.
[85] ibid., pages 30-31.
Ms Ferris maintained that she had suffered both a fractured coccyx and crushed sacrum, despite Counsel for Comcare asserting that the correct diagnosis based on the medical evidence was a fractured sacrum, which was also diagnosed by her general practitioner, Dr Bookallil. On further questioning, Ms Ferris agreed that an x-ray report from March 2011, shortly after her fall, referred to early signs of arthritis round the S1 joint, where the sacrum is located.[86]
[86] ibid., page 34.

Counsel referred Ms Ferris to her attendance in April 2008 on Dr David Forster, General Practitioner, regarding osteoarthritis in her left knee. Ms Ferris said she could not recall this appointment or complaining of knee pain. Ms Ferris did recall in October 2009 complaining of ‘pitting’ in her legs or knee area, but did not agree that she had problems with her knees from this time ‘all the time’.[87] Ms Ferris said her complaint was in relation to pain around her buttocks area radiating down into her legs, but said this only went as far as her thigh area and that the possible ‘pitting’ identified in the medical records was due to ‘the circulation in my legs’. Ms Ferris said this problem had ‘nothing to do with’ her buttocks pain, although Counsel referred to her earlier evidence in examination-in-chief that circulation issues were due to her injury the subject of the proceeding. Ms Ferris agreed.[88]
[87] ibid., page 35.
[88] Ibid., page 36.
Counsel for Comcare put to Ms Ferris that, in accordance with the medical records, within three weeks of her March 2011 injury she was starting to improve and was working two days per week. Ms Ferris agreed, including with the further proposition that she was working five days a week, or thirty-two hours, by August 2011.[89] Ms Ferris said she was ‘feeling better’, but the pain ‘was still there’ and has ‘never gone away’.[90]
[89] ibid., page 40.
[90] ibid., page 41.
Ms Ferris agreed that at some point in 2011 her sacrum healed but disagreed that it followed that there should be no associated pain from that injury.[91]
[91] ibid.
Ms Ferris said that in September 2011, after the accident in March that year, she ‘probably’ was cooking and shopping without assistance because ‘that was probably before the depression and anxiety and everything set in’.[92]
[92] ibid., page 42.
Counsel for Comcare took Ms Ferris to an entry in her medical records from August 2012, in which her physiotherapist had recorded ‘now pain very bad walking & sitting’ due to Ms Ferris having pushed a pram to the shops.[93] Ms Ferris did not recall this incident and, as a result would not respond to the proposition that her pain increased after this event. Further, Ms Ferris denied that any incident or event in her life, other than her fall at work in 2011, was the cause of her current pain.[94]
[93] Exhibit R8, page 41.
[94] Transcript, page 44.
Ms Ferris was taken to an unsigned letter from her general practitioner, Dr Bookallil, from October 2013, in which she stated that Ms Ferris ‘would not qualify as 10% impaired on the basis of her coccyx fracture’, but would for her ‘psychological condition’.[95] Ms Ferris agreed that Dr Bookallil did not find that she had a 10% impairment and would therefore not qualify at that rating in relation to her fracture, but only ‘because of how Comcare’s rating are’.[96] Ms Ferris said she did not remember seeing the letter or asking Dr Bookallil to produce such a document.[97]
[95] Exhibit R9.
[96] Transcript, pages 47-49.
[97] ibid., page 51.
Ms Ferris was referred to a letter dated 29 May 2018 from one of her then general practitioners, Dr Siddiqui, which states that Ms Ferris’ ‘work status should have always been “fit for modifiable duties” averaging 5 hours per day and or 20hrs per week’.[98] Ms Ferris agreed that she had not provided this letter to Comcare at any point in time; it was produced under summons by the medical practice attended by Ms Ferris. Ms Ferris denied that she did not provide this document to Comcare because it did not assist her case by stating that she was able to work 20 hours per week.[99] Later, while acknowledging that Dr Siddiqui’s assessment of the number of hours she was able to work was the same as Dr Mourad’s, Ms Ferris said this was because it was in Dr McNicol’s report and she did not agree that Dr Mourad would have his own independent opinion as an independent medical expert.[100]
[98] Exhibit R8, page 215.
[99] Transcript, page 56.
[100] ibid., page 57.
Ms Ferris was referred by Counsel for Comcare to a further appointment with Dr Siddiqui in November 2018, in which he discussed five ‘multi-factorial reasons’ why he now considered she was ‘not capable of work’, being: ‘buttock spasm pain’; ‘neuropathic leg pain’; ‘morbid obesity’; ‘poor venous circulation and ulcer’; and ‘anxiety symptoms due to pain and her chronic co-morbidities’. In this appointment, Dr Siddiqui also agreed to provide Ms Ferris a support letter that she had requested, although there was no such letter from Dr Siddiqui before the Tribunal other than his May 2018 letter.[101]
[101] Exhibit R8, page 123.
Counsel for Comcare took Ms Ferris to her earlier evidence that she had trouble sleeping because of a ‘stabbing pain’ across her buttocks, which she confirmed. Ms Ferris was then taken to a sleep study conducted in March 2018, which concluded she had ‘Severe obstructive sleep apnoea with moderate accompanying oxygen desaturation’.[102] It was put to Ms Ferris that one of the reasons she wakes in the night is because of sleep apnoea. Ms Ferris denied this assertion, despite agreeing that she had been diagnosed with sleep apnoea. As a result, Ms Ferris was asked whether her evidence was that her sleep apnoea is not contributing to her poor-quality sleep. Ms Ferris maintained that it is the pain impacting her sleep.[103]
[102] ibid., page 212.
[103] Transcript, pages 58-59.
Counsel for Comcare referred to its proposition that Ms Ferris suffers from pain due to factors unrelated to her 2011 injury, which factors are degenerative in nature and therefore contributed to by her age. Ms Ferris disagreed that age would contribute to her condition and have any effect on her spinal condition.[104]
[104] ibid., page 59.
Finally, Counsel for Comcare asked Ms Ferris about the treatment she had received, such as cortisone and steroid injections and radio frequency neuropathy, and suggested that some worked for only a short period of time, with which Ms Ferris agreed and said, ‘some didn’t work at all’. Counsel further suggested that some of those treatments did not work because they were targeting the wrong condition. Ms Ferris disagreed with this proposition.[105]
[105] ibid., page 62.
Re-examination
By way of re-examination, Ms Ferris agreed that when she briefly attempted to work at her son and daughter-in-law’s business this gave her back a feeling of independence and she felt valued. Ms Ferris further said that she would ‘love to go back to work, but standing and sitting, and for the type of work that I would do, at my age I’m not prepared to go and have, learn something new’.[106]
[106] ibid., page 63.
Ms Ferris agreed that, because Comcare accepted her claim in May 2011 for ‘fracture of sacrum & coccyx’ under section 14 of the SRC Act, Comcare understood that there were fractures of both the coccyx and the sacrum.[107]
[107] ibid., page 64.
Ms Ferris was asked whether there was pressure to return to work following her accident in 2011. Ms Ferris agreed and said she told her employer that she was still in pain and on a graduated return to work, although her workload had not reduced. Finally, Ms Ferris said that she took a voluntary redundancy because her employer recommended it based on her being unable to ‘sit and do my job’.[108]
Medical evidence
[108] ibid., page 72.
Dr David McNicol – Consultant Orthopaedic Surgeon
On 6 September 2012, six months after Ms Ferris’ accident, Dr David McNicol, Consultant Orthopaedic Surgeon, assessed her at the request of Comcare. Dr McNicol was not called to give evidence to the Tribunal at the hearing, however, his report dated 18 September 2012, relevantly noted that:
SUMMARY AND ASSESSMENT:
Ms Ferris worked as an executive secretary in the Australian Public Service, sustained an acute axial loading to her sacrococcygeal region when a chair in which she was sitting slipped out from underneath her. It was subsequently demonstrated that she has sustained a fracture of the distal sacrum immediately proximal to the sacrococcygeal junctions.
The fracture has gone on to heal, but she continues to have bilateral buttock pain and is focally tender to palpation at the sacrococcygeal junction. She denies low back pain or symptoms of sciatica.
Diagnoses:
1. Healed fracture of the distal sacrum.
2. Sacrococcygeal joint disruptions and coccydynia.
…
Prognosis:
In my opinion the prognosis in the short term remains guarded. I believe the prognosis could be improved by appropriate intervention which could involve, as a first step, a corticosteroid injection into the sacrococcygeal junction under X-ray control. If this fails to eliminate her symptoms, she would be a potential candidate for coccygeal excision.
…
In my opinion Ms Ferris’ employment continues to contribute to her condition. She sustained a well-documented workplace injury which demonstrated a fracture of the distal sacrum. This has continued to be painful and is limiting her activities. This is consistent with a sacrococcygeal joint disruption secondary to her high impact fall.
…
In my opinion Ms Ferris is medically fit to engage in some work but this would have to be work which allowed her to get up and move around as she wishes. It also would have to be work that did not involve prolonged sitting, walking or travel. I would suggest that Ms Ferris could work for up to 20 hours per week. [emphasis added]
Dr Geoffrey Speldewinde – Pain Specialist
Between December 2014 and July 2017, on the evidence before the Tribunal, Ms Ferris attended upon Dr Speldewinde following referral from her then general practitioner, Dr Bookallil.[109] Dr Speldewinde was not called by Ms Ferris to give evidence to the Tribunal and was said to be unavailable. Nevertheless, Dr Speldewinde’s reports, in the form of letters to Ms Ferris’ general practitioners or to Comcare, were before the Tribunal.
[109] Exhibit R5, T25, page 115; T26, page 117; T27, page 121; T28, page 125; T30, page 129; T31, page 131; T32, page 133; T41, page 155; T43, page 177.
In December 2014, Dr Speldewinde administered a ‘left sacroiliac joint intra-articular injection’ and diagnosed Ms Ferris as follows:[110]
Left more than right post fracture buttock pains which may be related to post very arthropathies of second right joints, or deep tendon and/or muscular ligamentous issues
Pain related depression and stress, inability to maintain employability
[110] Exhibit R5, T25, page 115.
In April 2015, Dr Speldewinde responded to Comcare’s request for information about his proposed treatment, relevantly as follows:[111]
I am requesting treatment for her continuing pain problems which she reports has not changed since the time of the injury. Biomechanically it is quite feasible that not only did she sustain a fracture in the sacrococcygeal area which may suggest the considerable forces involved, but also in the lumbosacral region. The series of diagnostic injections that she has undertaken support that she has sustained injuries to the bilateral L5-S1 zygapophysial joints in his same fall.
[111] Exhibit R5, T27, page 121.
In response to a request from Comcare in November 2016 for a medical report, Dr Speldewinde relevantly noted that:[112]
The biomechanics and energy of the impact of the fall would’ve been sufficient to not only fracture coccyx but also create other injuries identifiable at the time due to the pain from her fracture coccyx. It is quite consistent that the fragile zygapophysial joints underwent significant compressive forces and sustained injuries such as microfractures and chondral damage.
…
There are no clear-cut other underlying conditions that may be causing her her pain. Her obesity does not help but is not the cause of her pain.
The fracture of the coccyx is largely resolved certainly comparison to the continuing intrusive bilateral lumbosacral pain which is most likely due to bilateral L5/S1 most likely also L4/5 zygapophysial post-traumatic arthropathies.
[112] Exhibit R5, T41, page 155.
In July 2017, Ms Ferris underwent ‘a percutaneous thermal radiofrequency neurotomy to right and left L4/5 and L5/S1 zygapophyseal joints’ administered by Dr Speldewinde, whom ‘strongly recommended that a graded activity or exercise program be commenced’.[113]
[113] Exhibit R5, T43, page 177.
Dr Afifah Tahir – General Practitioner
On 11 April 2019, one of Ms Ferris’ general practitioners, Dr Tahir, provided a certificate which confirmed that she regularly sees Ms Ferris as a patient and relevantly stated that:[114]
[114] Exhibit R8, page 227.
there is no evidence that workplace related fracture is no longer cause of her current signs as her symptoms of lower back pain started in 2011 after the injury and have been persistent since then. She gets intense aggravation of pain. At times, its difficult for her to walk properly from waiting room to clinic room and this is something that cannot be assessed by a doctor who just sees her once for 30 minutes. Today she was struggling to walk in from reception due to flare of her back pain.
Ms Ferris continues to suffer from same symptoms since the day of injury with intermittent flares and she has been assessed by other doctors in this clinic who hold the same opinion.
Ms Ferris does suffer from degenerative changes in her spine but there is no evidence that degeneration is not because of poor fracture healing after work place injury.
In my opinion Ms ferris [sic] is not capable of working for 20 hours/ week because she is taking regular strong medications for this condition like lyrica, duloxetine and sometimes even opioids for acutre [sic] flares…
I do agree with Dr Mourad that Gail’s BMI is high but the constant back pain prevents Gail from exercising regularly…
In regards to other medical barriers to her return to work, Ms Ferris has had a very stressful time after her work related injury. She has been so depressed due to constant back pain and chasing of paper work for compensation with her sore back…
She is not in the right state of mind to participate in any sort of rehabilitation program…
I appreciate Dr Mourad’s opinion but I think that in a single 30 minutes appointment, it is a bit difficult to get into depth of her medical situation.
We are seeing Gail regularly for last 8 years since she had accident, and she has had significant mental and physical disability due to that work related injury.
I strongly support Gail’s claims.
Dr Tahir was not called to give evidence at the hearing and was said to be unavailable.
Dr Nadeem Siddiqui – General Practitioner
Ms Ferris’ current general practitioner, Dr Siddiqui, gave evidence in person at the hearing. The only written documentation before the Tribunal from Dr Siddiqui was a letter dated 29 May 2018, that was produced under summons and contained in the bundle of extracts of those documents, and stated as follows:[115]
I have been asked by Gail to provide a letter with an overview of her workers compensation certificates regarding her tail-bone injury which she sustained in March 2011 while at work till now.
Gail was referred to me on the 28/2/18 by a GP colleague and I have been seeing her since. Therefore my review of her condition is based upon looking at previous medical records by other GPs and reports from specialists.
It is my opinion that her diagnosis and resultant chronic pain syndrome has never abated evidenced by documented continued pain and that her work status should have always been “fit for modifiable duties” averaging 5 hours per day and or 20hrs per week.
[115] Exhibit R8, page 215.
Examination-in-chief
Dr Siddiqui confirmed that for seven years he has been the Executive Director of Clinical Services at the Aboriginal Health Service in the ACT.
Dr Siddiqui told the Tribunal that he has been seeing Ms Ferris in relation to many medical issues for at least one to two years. Ms Ferris was referred to Dr Siddiqui by other general practitioners in the medical practice to consider ‘other therapeutic measures’ to resolve the pain she experienced because ‘she was still very symptomatic of pain down the bottom of her back’.[116]
[116] Transcript, page 83.
Dr Siddiqui was asked about the report of Dr Mourad. First, Dr Siddiqui was taken to the recommendation for Ms Ferris to undertake ‘core strength’ exercises. Dr Siddiqui said that it is difficult for patients with chronic arthritis who then develop morbid obesity to do these exercises and he would ‘refer somebody to an exercise physiologist who would then do an exercise program’. Dr Siddiqui was pressed on whether these recommended exercises were appropriate, to which he replied that they were not when Ms Ferris is in pain, he would refer to an exercise physiologist and ‘before that I would be just saying doing simple walks’.[117]
[117] ibid., pages 84-85.
Dr Siddiqui confirmed his understanding that Ms Ferris’ sacrum fracture had healed ‘in line, so there’s like a scar which can be seen on the X-ray or MRI but it’s together’, meaning it was ‘undisplaced’.[118]
[118] ibid., page 86.
In relation to Ms Ferris’ arthritis, Dr Siddiqui said that ‘although we can’t be categorical…we certainly know that following the injury that there is arthritic change’, which can cause pain and inflammation and is worsened by weight issues.[119]
[119] ibid., page 88.
Dr Siddiqui told the Tribunal that Ms Ferris’ mental state was ‘very impacted’[120] by her condition and she was ‘very upset’[121] about Dr Mourad’s report, which she considered to be ‘like a denial of what she is going through’.[122] Dr Siddiqui confirmed that Ms Ferris’ pain condition was indirectly impacting upon her mental health.[123]
[120] ibid., page 90.
[121] ibid., page 92.
[122] ibid.
[123] ibid., page 95.
In relation to other medical problems suffered by Ms Ferris, Dr Siddiqui said that, in his opinion, her swelling and numbness in the legs were not directly associated with her condition; her sleep apnoea was not related to her condition; the pain in her buttocks ‘can be’ associated with her condition; but it is her arthritis that is ‘likely causing the pain’.[124]
[124] ibid., page 95.
Dr Siddiqui was asked whether he believed he was still treating Ms Ferris as a result of the 2011 injury. Dr Siddiqui stated as follows:[125]
We’re treating her for the pain that she’s presenting with, and yes, I mean, I guess - my suspicion as a clinician, looking at the history, is that - my suspicion, that is related to obviously that injury. But that’s my suspicion. You know, I can’t be 100%, and there are other things there, but yes, it seems very plausible, and I have been treating her in that way, that yes, I believe that that is the root cause of it, and these are the consequences of that that we’re treating today.
[125] Ibid., page 96.
Cross-examination
Under cross-examination from Counsel for Comcare, Dr Siddiqui agreed that Ms Ferris had degenerative changes in her spine at the time of the x-ray taken three days after her accident in 2011, although he said that these changes were in a different area to her sacrum. Dr Siddiqui then agreed that minor sclerosis, which was also present in the same x-ray, was an early sign of arthritis.[126] Dr Siddiqui further confirmed that any arthritis present at that time would not have developed within the few days since the fall because it develops over a long period of time.[127] However, Dr Siddiqui later said that sclerosis or arthritis could develop into minimal degenerative change in a joint in a matter of three months.[128]
[126] ibid., page 98.
[127] ibid., page 99.
[128] ibid., page 114.
Dr Siddiqui confirmed his earlier evidence that the radiologist’s conclusion in the x-ray report from March 2011 indicated that Ms Ferris did not have an undisplaced fractured sacrum.[129] Dr Siddiqui also agreed that a CT scan from July 2011, being approximately three months after the injury, showed that Ms Ferris’ fracture had healed.[130]
[129] ibid., page 99.
[130] ibid., page 112.
Dr Siddiqui agreed that one of Ms Ferris’ co-morbidities, her weight, had been stable since 2004 and that it can create pain.[131] Dr Siddiqui further agreed that there was a higher than normal chance of Ms Ferris’ sclerosis degenerating over the subsequent nine year period due to her high Body Mass Index and lack of mobility.[132]
[131] ibid., pages 100-101.
[132] Ibid., page 102.

Dr Mourad also told the Tribunal that following a further review of Ms Ferris’ records, he identified evidence of L5/S1 inflammatory facet joint arthritis, which is caused by something in a person’s blood, not because of a fractured sacrum.[159]
[159] ibid., page 140.
Dr Mourad confirmed his assessment that Ms Ferris could work 20 hours per week, which was determined by analysing the pathology, the imaging and Ms Ferris’ movement at her appointment. Dr Mourad said Ms Ferris’ pathology would be present in at least 50% of the population aged over 50 and ‘there was no organic pathology there that would prevent her from working in an office-based role part-time’.[160]
[160] ibid., page 141.
Dr Mourad’s interpretation of a bone scan of Ms Ferris in May 2016[161] was that the findings in the accompanying report demonstrated that her symptoms were ‘consistent with an inflammatory process, not a post-traumatic process’ and was ‘just inherent in Ms Ferris’ body’.[162]
[161] Exhibit R8, page 185.
[162] ibid., page 144.
Counsel for Comcare took Dr Mourad to his third report from February 2020, in which he provided an estimate of Ms Ferris’ impairment according to the Guide. Dr Mourad told the Tribunal that his current estimate ‘using Table 9.18 of the Comcare Guide, is impairment at 5%...Although Ms Ferris has a healed fracture without displacement, she does have residual signs and I elected to estimate her impairment at 5%’.[163] Furthermore, Dr Mourad said he considered that Ms Ferris sustained a sacral fracture as a result of her fall on 28 March 2011 and that it had ‘healed in a satisfactory position without complication. I do not believe that any impairment or any symptoms that she’s got at the moment relate [to] that fracture’.[164]
[163] ibid., page 148.
[164] ibid., page 149.
Cross-examination
Under cross-examination, Dr Mourad confirmed that for each of his medico-legal assessments in a day, he allocates between one hour and one and a half hours, with the time equally split between an interview and a physical examination, but that it varies and certain cases require more time. When pressed on this point, Dr Mourad said he took ‘perhaps 15 to 20 minutes’ for the physical examination of Ms Ferris, which was usual for ‘that sort of body region’.[165]
[165] ibid., page 152.
When asked about the timeframe for a healed sacrum, Dr Mourad confirmed that it would be uncommon to take 12 weeks to heal. This would be impacted by the type of fracture, for example a severely displaced fracture and other complicating factors such as an open injury, diabetes, old age and osteoporosis.[166]
[166] ibid., page 157.
Dr Mourad further confirmed that his report of July 2018 refers to x-rays from 2011 showing a fractured coccyx and sacrum, not only the latter, because that was part of the history taken from Ms Ferris and his review of the medical records, which was included in the ‘History’ section of this report; it was not Dr Mourad’s diagnosis of Ms Ferris’ injury, which was a fractured sacrum only.[167]
[167] ibid., page 157.
Dr Mourad was taken to the letter from Dr Tsai, Orthopaedic Surgeon, from May 2016, to Ms Ferris’ general practitioner, in which he states that Ms Ferris has a ‘healed coccygeal fracture’, not a sacral fracture. Dr Mourad said ‘I think he has actually made a mistake. I think he’s talking about the sacrum. The coccyx was never fractured’.[168] Additionally, Dr Mourad said that the initial x-rays from 2011 showed a fracture of the sacrum and ‘there’s no evidence that the coccyx was ever fractured’. In this regard, when it was put to Dr Mourad that it was equally possible that he could have made a mistake, he replied that if he did, it would also have been a mistake made by the radiologist who took and examined the x-rays in 2011 and identified only a sacral, not coccygeal, fracture.[169] Later in his evidence, Dr Mourad again confirmed that he did not identify any other possible fracture in Ms Ferris’ lumbar region.[170] When it was again put to Dr Mourad that both the coccyx and the sacrum were affected, he replied that there was only one bone that was fractured, but he agreed that Ms Ferris had ‘symptoms or tenderness in the region of the sacrococcygeal junction’.[171]
[168] ibid., page 161.
[169] ibid., page 161.
[170] ibid., page 168.
[171] ibid., page 174.
Dr Mourad was asked about the types of core strength exercises that he would have recommended Ms Ferris undertake and he replied that he does not instruct patients but refers them to a physiotherapist and recommended strengthening the muscles in her core ‘to take some of the load from her arthritic joints’.[172]
[172] ibid., page 163.
Dr Mourad expanded on his earlier evidence regarding the percentage of permanent impairment he assigned for Ms Ferris and her continued pain, as follows:[173]
I’ve erred on the side of caution, you know. She has got symptoms, she is reporting severe symptoms of pain, she is reporting large impact to her current level of function. So what I’ve stated was, okay, she sustained a fracture to this area. If it heals without complication and without residual signs, it would give it a zero percentage; but if it heals with displacement but without residual signs, you would get 5%. So that was my estimate, using that sort of reference.
…
I’ve actually estimated her whole person impairment on the basis that she had a healed fracture with displacement, even though all her previous imaging has shown no displacement…you want to err on the side of caution. You know, it may be that MRI or that CT scan for whatever reason hasn’t picked up that there is a degree of displacement. It may only be a nanometre, but if there is a degree of displacement, I’ve given Ms Ferris that allowance.
In my 20-plus years of orthopaedic experience I have never seen someone who has had that degree of pain, that degree of loss of function from an undisplaced sacral fracture. What I have found in…Ms Ferris…is other pathology. So yes, she has got a degree of spondylosis; yes, she has got a degree of [indistinct] morbidities in her lumbar spine that could account for some of the symptoms, but not the severity that she reports. And I think that’s why we’ve been having all these tests. Nine years later we’re still doing tests on her lower back and her sacrum just to find out what is causing the pain. And what I’ve got to say is from my own reading of the view of my records, is that no pathology, or there has been no sign of anything wrong with her back that could explain how severe her symptoms are.
[173] ibid., pages 170-171.
Re-examination
By way of re-examination, Dr Mourad confirmed that his evidence was that Ms Ferris did not have post-traumatic arthritis because there were no joints that were affected by her fracture in 2011.[174]
[174] ibid., page 177.
Finally, Dr Mourad also confirmed that, in his opinion, Ms Ferris’ sacral fracture has healed with no displacement and he did not believe the healed fracture is causing Ms Ferris’ symptoms nine years after it occurred, and he would not now expect any symptoms.[175]
[175] ibid., pages 177-178.
Following re-examination of Dr Mourad, the Tribunal asked him further about his assessment of the degree of Ms Ferris’ permanent impairment pursuant to the Guide. Dr Mourad confirmed that his ‘initial assessment’ was that, because Ms Ferris had a healed fracture without displacement or residual signs, her degree of permanent impairment would be assigned 0% under the Guide, however Dr Mourad wanted to ‘err on the side of caution just in case’ and therefore assigned a 5% rating under the Guide, because ‘there may be some displacement that may be there that we haven’t been able to appreciate’.[176]
[176] ibid., pages 179-180.
CONSIDERATION
On 28 March 2011, Ms Ferris fell at her workplace and fractured her sacrum. The Tribunal is satisfied, on the evidence before it, that Ms Ferris suffered an injury in this fall pursuant to section 5A of the SRC Act, being her fractured sacrum, however it finds that she did not fracture any other bone, including her coccyx.
There were two applications made to the Tribunal by Ms Ferris. The first application sought review of a decision made by Comcare declining her claim for permanent impairment and non-economic loss under the SRC Act in relation to the 2011 injury. The second application sought review of Comcare’s decision that, under the SRC Act, it had no present liability for incapacity payments and Ms Ferris’ medical expenses related to the injury.
The Tribunal is satisfied that the correct or preferable decision is to affirm both decisions under review pursuant to those applications to the Tribunal. That is, Ms Ferris’ applications to the Tribunal are unsuccessful.
Essentially, Ms Ferris’ argument in the proceeding was that she was asymptomatic in relation to pain in her lower back region before her fall at work in 2011 and all her current symptoms experienced after the fall were caused by that work injury. This argument is unsustainable on the evidence before the Tribunal and demonstrates a lack of insight, or unwillingness to entertain the likelihood, that other factors are the cause of these symptoms. For example, Ms Ferris rejected any suggestion that her current issues could be caused by her own pathology, which were unrelated to the work injury. Further, while Ms Ferris agreed that at some point in 2011 her sacrum healed, she disagreed that it followed that there should be no subsequent associated pain from that injury. Also, Ms Ferris denied that any incident or event in her life, other than her fall at work in 2011, was the cause of her current pain. This position was unchanged despite documentary and medical evidence to the contrary, including in relation to Ms Ferris’ degenerative factors.
Ms Ferris relied upon documentation from a range of medical practitioners. Despite providing a Hearing Certificate in October 2019 noting that she was seeking to call to give evidence, Dr Speldewinde, Dr Tahir and Dr Siddiqui, only the latter ultimately gave evidence to the Tribunal, although it is noted that the other practitioners were said to be unavailable, despite Ms Ferris being aware of the hearing dates for some months in advance of the hearing and being provided multiple opportunities to obtain expert evidence in the proceeding. Accordingly, the Tribunal can only give those medical records and the practitioners’ assessments minimal weight in terms of assessing Ms Ferris’ condition, including because they are from her treating medical practitioners, none of whom have specialist qualifications in relation to the injury the subject of Ms Ferris’ applications before the Tribunal, unlike Dr Mourad, who was relied upon by Comcare.
Additionally, other than Dr Mourad, Ms Ferris was assessed by two separate orthopaedic surgeons, Dr McNicol and Dr Tsai; neither were called to give evidence to the Tribunal and their opinions could not accordingly be tested. Nevertheless, Dr Mourad agreed with Dr McNicol’s diagnosis of Ms Ferris from 2012 but said that, with the benefit of subsequent reports, it was likely that Dr McNicol’s opinion would have changed to agree with Dr Mourad’s assessment. Furthermore, Dr Tsai incorrectly stated that Ms Ferris had sustained a coccygeal fracture, rather than a sacral fracture, the latter being the only fracture identified by contemporaneous medical imaging undertaken following the fall in 2011.
Also, unlike Dr Mourad, none of Ms Ferris’ treating practitioners provided their views on the degree of whole person impairment under the Guide in relation to her condition the subject of the proceeding. However, Dr Bookallil, Ms Ferris’ general practitioner, is taken to have formed the view, set out in an unsigned letter from 2013,[177] that Ms Ferris did not have a degree of whole person impairment at or more than 10%, as required under the Guide for her fracture, but would meet this threshold in relation to her psychological condition, which was not a matter before this Tribunal. Ms Ferris also did not make any submission or contention to the Tribunal that a certain percentage impairment rating should be assigned to her condition under the Guide, although plainly Ms Ferris’ argument was that she does suffer a permanent impairment due to the 2011 injury that would, at least, meet the 10% threshold in the Guide to make Comcare liable to pay her compensation under the SRC Act.
[177] Exhibit R9.
Following a close analysis of the evidence, the Tribunal prefers the evidence of Dr Mourad in this proceeding. Dr Mourad provided authoritative and detailed evidence about Ms Ferris’ condition. In this regard, and contrary to the submission from Ms Ferris, the Tribunal is not satisfied that there were any deficiencies in the manner of Dr Mourad’s assessment of Ms Ferris given the nature of her condition or with his reports regarding that assessment. Despite the suggestion from Ms Ferris, Dr Mourad’s consistent position was that she suffered from a fractured sacrum only; she did not fracture her coccyx. To this end, while Dr Mourad referred to Ms Ferris fracturing both of these bones, this was contained in the section of his report setting out the history he took from Ms Ferris, which was that she had suffered a fractured sacrum and coccyx.
Having regard to all the evidence before the Tribunal, it accepts Dr Mourad’s assessment, based on what it finds to have been his comprehensive review of the medical records, his specialist skills and examination of Ms Ferris, that her fall, at approximately one metre, was a ‘low energy type of mechanism of injury’, rather than a high energy injury such as a fall of more than two metres. As a result, Ms Ferris’ sacral fracture in 2011 healed without complication (including there being no displacement) on or before 1 July 2011, as confirmed in a contemporaneous CT scan of her sacrum. The Tribunal accepts Dr Mourad’s diagnosis that Ms Ferris has lumbar spondylosis including degenerative L5/S1 anterolisthesis and inflammatory facet arthritis as well as being morbidly obese. The Tribunal is satisfied that Ms Ferris’ 2011 injury has resolved and none of these current conditions are related to Ms Ferris’ fall and fractured sacrum in 2011, but rather to a combination of Ms Ferris’ age, weight, natural degeneration and her own immune system.
In this regard, Dr Siddiqui, General Practitioner, who gave evidence for Ms Ferris, told the Tribunal that her swelling and numbness in the legs were not directly associated with her condition; her sleep apnoea was not related to her condition; the pain in her buttocks ‘can be’ associated with her condition; but it is her arthritis that is ‘likely causing the pain’. Dr Siddiqui also was of the opinion that Ms Ferris suffered a fractured sacrum that had healed without displacement. That is, Dr Siddiqui’s opinion about the status of Ms Ferris’ sacral fracture was the same as that of Dr Mourad.
The Tribunal is further satisfied that the 2011 injury the subject of Ms Ferris’ applications does not result in any incapacity for work. To this end, both Dr Siddiqui and Dr Mourad, in May and July 2018 respectively, documented that Ms Ferris was able to engage in office-based work for up to 20 hours per week. Dr Mourad confirmed his view at the hearing. Dr Siddiqui changed his opinion in November 2018 due to multiple factors affecting Ms Ferris and, under cross-examination, said that his earlier statement was based both on his medical assessment and Ms Ferris’ representations about her capacity for work. Dr Siddiqui in re-examination confirmed he had relied on Ms Ferris’ position, but the Tribunal does not consider that he changed his evidence such that he had not also relied on his clinical judgment to determine in May 2018 that Ms Ferris was capable of 20 hours work per week. Accordingly, the Tribunal is not satisfied that Ms Ferris has an incapacity for work due to her injury in 2011; any incapacity is related to other factors that are not subject to an application before the Tribunal.
To this end, the High Court of Australia in Canute v Comcare[178] found that compensation was payable in response to an ‘injury’, as opposed to an ‘impairment’. While the SRC Act provides, and accommodates, for the natural progression of injuries, there must be a nexus between the initial injury and determination of liability. In this regard, the Tribunal in Solman and Comcare[179] found that an injury, not an impairment, gives rise to compensation and held that if the condition from which the applicant was suffering was different to the accepted injury, it did not have jurisdiction to consider any claims in relation to that condition. Accordingly, the Tribunal accepts Comcare’s submission that Ms Ferris suffers pain that is not connected to the initial injury, being the fractured sacrum in 2011, and it therefore does not give rise to any present liability or compensation payable by Comcare to Ms Ferris.[180]
[178] [2006] HCA 47.
[179] [2018] AATA 6.
[180] Comcare’s Closing Submissions dated 16 March 2020.
In relation to Ms Ferris’ claim for permanent impairment and non-economic loss as a result of her 2011 injury, the Tribunal cannot assign Ms Ferris a degree of whole person impairment under the approved Comcare Guide that would entitle her to compensation under the SRC Act. That is, the Tribunal is not satisfied that any permanent impairment from the injury could be rated with a degree of whole person impairment that is 10% or more in accordance with the Guide.
The Tribunal is legislatively bound to apply the terms of the Guide. The relevant table in the Guide to determine Ms Ferris’ degree of whole person impairment is Table 9.18, regarding fractures of the pelvis, including fractures of the sacrum. On the medical evidence before the Tribunal, it appears that the degree of whole person impairment for Ms Ferris cannot be any higher percentage than 0% in Table 9.18 of the Guide, because Ms Ferris has a ‘healed fracture without displacement’ or residual signs, which falls within the category in the Guide prescribing a degree of whole person impairment of 0%. However, Dr Mourad told the Tribunal that, although this degree of whole person impairment was his ‘initial assessment’, he decided to ‘err on the side of caution’ and assigned a 5% rating for Ms Ferris’ injury on the basis of a healed fracture of the sacrum with displacement but without residual signs, ‘even though all her previous imaging has shown no displacement’. As a result, accepting the findings and clinical judgment of Dr Mourad regarding the injury, the Tribunal is not satisfied that a degree of whole person impairment rating higher than 5% under the Guide can be assigned to Ms Ferris in relation to her injury.
Because the Tribunal has assigned a rating of 5% to Ms Ferris in relation to her injury, her claim for permanent impairment is unsuccessful; the injury does not meet at least 10% whole person impairment under the Guide to attract compensation pursuant to section 24 of the SRC Act. Therefore, Comcare is not liable to pay compensation to Ms Ferris in respect of the injury under that provision. In addition, because of the Tribunal’s findings regarding the claim for permanent impairment, Comcare is not liable to pay compensation for non-economic loss and the Tribunal does not need to assess this element of Ms Ferris’ claim under section 27 of the SRC Act.
In relation to Ms Ferris’ claim that Comcare is presently liable for compensation for medical treatment obtained in relation to the 2011 injury, Ms Ferris’ sacrum was fractured and healed in 2011. Any reported ongoing symptoms are explained by separate and identifiable conditions, unrelated to the injury, that were established by the medical evidence before the Tribunal. Based on the Tribunal’s findings regarding Ms Ferris’ capacity for work and the status of her injury, Comcare is not liable to pay compensation in relation to Ms Ferris’ injury under sections 16 or 21A of the SRC Act.
CONCLUSION

Having regard to the Tribunal’s findings, and based on the evidence presented during the proceeding, Ms Ferris’ applications cannot succeed. This decision will no doubt be difficult for Ms Ferris to accept and the Tribunal understands that Ms Ferris’ health may suffer as a result. In this regard, the Tribunal accepts that Ms Ferris suffers significant physical discomfort and psychological issues due to a multitude of factors. Ms Ferris’ argument and long-held view is that her 2011 injury was responsible for her current symptoms. Unfortunately for Ms Ferris, the Tribunal cannot accept that argument based on the weight of medical evidence presented during the proceeding.
The Tribunal is not satisfied that Ms Ferris’ injury at work in 2011 results in a permanent impairment sufficient to attract compensation, because it does not meet the 10% threshold for whole person impairment required pursuant to the SRC Act. Ms Ferris’ sacrum was fractured in the fall in 2011 and healed in the same year, without complication. Further, and as a result, the Tribunal has found that Ms Ferris currently requires no medical treatment in relation to that injury, which is also not the cause of any present incapacity. Accordingly, the Tribunal finds that Ms Ferris is not entitled to compensation under the SRC Act.
DECISION
The Tribunal affirms the decisions under review pursuant to subsection 43(1)(a) of the AAT Act.

I certify that the preceding 162 (one hundred and sixty-two) paragraphs are a true copy of the reasons for the decision herein of Member W Frost.

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Associate
Dated: 7 May 2020

Date(s) of hearing: 26 and 27 February 2020

Date final submissions received: 23 March 2020

Applicant: In person, with Ms Wendy Brookman

Counsel for Respondent: Ms Anca Costin

Solicitors for the Respondent: Mr Adrian Hearne, HWL Ebsworth Lawyers

*% WPI*	*Criteria (one required— different conditions may be assessed separately)*
0	Healed fracture: · without displacement or residual signs · of one or both rami with displacement but without residual signs · of ischium or ilium with displacement but without residual signs · of coccyx with displacement but without residual signs · of one pubic ramus with displacement, deformity and residual signs.
2	Healed fracture of ilium with displacement, deformity and residual signs.
5	Healed fracture of: · sacrum with displacement but without residual signs · symphysis pubis without separation and without residual signs · both pubic rami with displacement, deformity and residual signs. Non-union of coccyx fracture. Excision of coccyx.
10	Healed fracture of: · ischium with displacement of 2.5cm or more, deformity and residual signs · sacrum involving sacro-iliac joint.
15	Healed fracture of symphysis pubis with separation or displacement.
*Evaluate in accordance with* *Table 9.4*	Fracture involving acetabulum.

Date(s) of hearing:	26 and 27 February 2020
Date final submissions received:	23 March 2020
Applicant:	In person, with Ms Wendy Brookman
Counsel for Respondent:	Ms Anca Costin
Solicitors for the Respondent:	Mr Adrian Hearne, HWL Ebsworth Lawyers