Fitzgerald and Comcare (Compensation)

[2022] AATA 886

Fitzgerald and Comcare (Compensation) [2022] AATA 886 (31 March 2022)

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL	)
)	No: 2019/7332
GENERAL DIVISION	)

Re: Marianne Fitzgerald
Applicant

And: Comcare
Respondent

DIRECTION

TRIBUNAL:  Member A Ward

DATE OF CORRIGENDUM:            28 April 2022

PLACE:           Adelaide

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application as follows:

1. The surname of the Advocate for the Applicant, ‘Lerosa’, on page 12 of the decision is deleted and replaced with the correct spelling, ‘Larosa’.

...........................[Sgnd]..........................

A WARD
  (Member)

Division:GENERAL DIVISION

File Number(s):2019/7332      

Re:Marianne Fitzgerald  

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:              Member A Ward

Date:31 March 2022

Place:Adelaide

The decision under review is set aside and substituted with a decision that the applicant continues to suffer from the effects of the compensable injury and has ongoing entitlements to compensation pursuant to the Safety, Rehabilitation and Compensation Act 1988 (Cth), noting her entitlements to s. 19 payments are limited to a period from 11 March 2019 to 4 June 2019.

..........................[Sgnd]............................

Member A Ward

Catchwords

COMPENSATION – whether accepted claim continues – expert witnesses properly prepared to give evidence; generality of expert views not evidence – effects work injury continuing after cessation of employment; consent decisions; unhelpful idiosyncratic views of expert regarding investigation of medical conditions

Legislation

Safety, Rehabilitation and Compensation Act 1988 (Cth)

Cases

State Government Insurance Commission v Laube (1984) 37 SASR 31

REASONS FOR DECISION

Member A Ward

31 March 2022

1. The Applicant sustained injury during the course of her employment with the Department of Social Security. She commenced working there in 1987. On 22 February 2005, she lodged a claim for Worker’s Compensation for medial epicondylitis of the right elbow.

2. The hearing took place from 6 December 2021 with oral evidence on that day, and on 7 December 2021, the matter concluding on 8 December 2021. At the request of the parties, time was then given for written submissions. The Respondent filed written submissions 21 December 2021. The Applicant filed written submissions 20 January 2022 and the Respondent filed Further Written Submissions on 14 February 2022.

   Background

3. On 18 April 2005, the Respondent accepted liability for the condition described as ‘aggravation of synovitis and tenosynovitis (right) (elbow)’ for the injury sustained on 7 January 2005. This date was subsequently amended to 30 September 2004 which is when the Applicant first sought treatment from her general practitioner.

4. On 22 February 2008, the Respondent determined that the Applicant was no longer suffering from that condition. This was on the basis of medical evidence produced by Dr Mark Awerbuch that the condition, in his opinion, had resolved. 

5. There were a number of claims made to the Administrative Appeals Tribunal (the Tribunal) concerning this and other claimed conditions prior to June 2010.[1] An Order made by the Tribunal dealing with those applications noted agreement reached between the parties with regards to the disputes. However, it will be seen that the Consent Order of 17 June 2010 had a different description of an elbow problem than that determined on 18 April 2005. This was a Consent Order of the Tribunal relating to the injury, and both parties were subject to that agreement.

   [1] These included right shoulder, carpal tunnel syndrome (right), household help and psychiatric conditions.

6. The Consent Order of 17 June 2010[2] set aside a decision of Comcare dated 15 July 2008 and substituted a decision that:

   “The applicant is entitled to compensation for medical expenses and incapacity payments for the compensable condition of “aggravation of humeral epicondylitis (right)” pursuant to ss 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988 (the Act).”

   [2] T-Documents, T24, pp 121-122.

7. The Order of 17 June 2010 also shows that a number of other claims were under review (right shoulder, carpal tunnel syndrome, household help and a psychiatric condition), all in favour of the Respondent. Details of the actual applications were not before the Tribunal when considering this current matter - although they should have been available to the parties.

8. However, it is open for this Tribunal to find that there was clear compromise on the part of both parties to reach the Consent Agreement that was entered on 17 June 2010.

9. In so far as there is a dispute in the current proceedings as to the nature of that Consent Agreement, this Tribunal finds that in accordance with that Consent Agreement, the Applicant suffered an aggravation of humeral epicondylitis in the course of her employment.  The issue under contention, which is the main basis of this hearing, is whether the Applicant still suffered from the condition she sustained at work in 2004 at the time of this hearing. 

10. From the Applicant’s point of view, she has given evidence that for the relevant times she always suffered from pain in the right elbow, but it will be noted from the above that descriptions of this varied by medical practitioners or case managers.

11. Dr Haigh, who gave evidence at the request of the Respondent, said that the term ‘humeral epicondylitis’ was not one in common use, but that it would refer to either side and was thus non-specific in location.

12. The Applicant’s evidence was that work activities would affect her pain and that she would take medication in anticipation of that. She would have to sleep in a certain way to minimise the risk of pain at night. She would take medication such as Endone and would have to be mindful of that use as it would affect her at work.

13. She was cross-examined at length on this. The Tribunal accepts her evidence with regards to her descriptions of pain and the effect this has had upon her, and the fact that it has continued to affect her notwithstanding the fact that she has, for reasons unrelated to this claim, left her employment. The injuries she sustained as a consequence of her employment have continued to affect her.

14. Medical reports have been obtained by Comcare from the Applicant’s General Practitioner, Dr Molyneaux. His consistent view was that she had consistent problems with the right elbow (which he described as medial and lateral epicondylitis) and that the employment contributed to that problem. When he first reported this (17 June 2014) she was still employed. He considered then that whilst the Applicant remained in her current employment the symptoms would continue.

15. Dr Nolan, who is a General Practitioner at the same surgery as Dr Molyneaux, confirmed on 21 July 2019 that he had been treating the Applicant for approximately 15 months and noted that as at July 2019 she continued to experience elbow pain which was consistent with the problems that arose in August 2004 at her workplace. Although she had lost her work with Centrelink, he noted she continued to experience the condition and suffer the discomfort. He noted that:

    “It is my opinion that the condition has not resolved despite her not working at present”.[3]

    [3] Ibid, T40, p 213.

16. These views were supported by Dr Molyneaux who reported to the Case Manager for the Respondent on 2 September 2019 that:

    “Mrs Fitzgerald has not been working for over 12 months and she continues to report the pain in the same area of her right arm related to her previously accepted claim … therefore her workplace injury continues to have an impact on her life outside of work”.[4] 

    [4] Ibid, T43, p 233.

17. The Tribunal notes this evidence primarily for the record of consistency of complaint.

18. The Applicant was cross-examined on other non-work activities such as keeping birds. She described having at certain periods, approximately 70 birds which were canaries in the main.

19. She would undertake the duties necessary for looking after the birds including some cleaning. She would manage this by doing it over longer periods of time. For bigger jobs (which were not common) she would enlist the support of others.

20. The Tribunal finds that such activities are not evidence of absence of pain or an absence of incapacity to undertake employment duties. Activities where she can monitor her participation so as to avoid aggravating her injuries in a social sense are not (in this case) a good indication of her ability to work in a commercial environment with expectations as to her participation and output. Any problems for which she would have to modify her behaviour in a social setting arise as a consequence of the accepted work injury. 

21. Dr Munn assessed the Applicant on two occasions. In his report of 31 December 2015, he was hopeful that her physical capabilities should improve. In his report of 24 March 2017, he noted that improvement had not occurred and recorded a history of ongoing issues with right forearm pain. He noted that at that stage her symptoms had been persistent for about 13 years and considered it probable that she had a degree of chronic tendinopathy. He was of the view that the problems described, which she related to computer use, had been accepted as compensable previously and in his opinion, in March 2017, therefore continued to be so. His view therefore is different to that of Dr Haigh.

22. A significant amount of information is on this file as a consequence of the prolonged nature of this injury and the various challenges that have arisen over time. The Tribunal finds there is consistency of complaint by the Applicant which was confirmed in her evidence and that of the doctors as set out above and further considered below.

    Medical Evidence

23. The Applicant obtained a report from Dr Suyapto dated 8 July 2021. Dr Suyapto is an occupational physician. He noted in his history that between April 2006 and October 2006, the Applicant reported that she did her normal duties and that she did not have any issues.  Her symptoms came back in October 2006. This history is noted simply for the fact that the Applicant has not asserted continued debilitating pain from her initial complaint. This gives a good insight to her credit. If she was exaggerating her claim for compensation purposes, one would expect that she would not report any improvement at all at any point. In any event, that period, if it gives rise to any question, has been dealt with by the Consent Order of 2010 accepting the ongoing pain symptoms as arising as a consequence of her employment.

24. Dr Suyapto considered that the Applicant, at the time of his examination, remained symptomatic in the right elbow, the condition she sustained during the course of her employment.

25. He expressed the opinion, with which the Tribunal agrees, that:

    “Given the fact that [her symptoms have] not improved, it does not mean that the work has not contributed to it. The injury has already occurred and therefore the effect of the injury remains”.

26. The Respondent adduced evidence from Dr Haigh. His view was that there was no diagnosis for the Applicant’s complaints. He had idiosyncratic views on the use of radiology and other investigations. He considered that there was a poor correlation to what would appear on radiology and what a patient’s symptoms were. Here, he was talking in generalities. He gave evidence to the effect that he had not seen the condition which the Applicant complained of lasting for such a long time, in his experience.

27. In Dr Haigh’s report of 29 August 2018 (which was relied on by the decision-maker) he said:

    “I have described her complaints. As stated, I do not have a diagnosis to explain them. I suspect there is not one.”[5]

    [5] Ibid, T37, p 199.

28. The Tribunal observes that often his expert evidence will deal with generalities. 

29. The Tribunal is mindful of the observations of the South Australian jurist Chief Justice King in an oft cited decision in another jurisdiction on the issue of such evidence.[6] In that context, Chief Justice King was talking about the evidence of an expert on blood alcohol levels. The proposition was that it was statistically more probable than not that any individual with a blood alcohol level of 0.15% would be incapable of exercising effective control of a vehicle.  The Chief Justice said:

    “I am clearly of the opinion that the statistical fact that a particular proposition is true of the majority of persons, cannot of itself amount to legal proof on the balance of probabilities that the proposition is true of any given individual. The fact that most people with a blood alcohol level of .15% are incapable of exercising effective control of a motor vehicle does not establish against any individual with that blood alcohol level that that individual is so incapable.”

    [6] State Government Insurance Commission v Laube (1984) 37 SASR 31.

30. Looking then at Dr Haigh’s evidence of generalities and what he would expect in terms of recovery and continuation of symptoms, it does not assist as per this Applicant’s situation. However, on the basis that he did not think there was any medical explanation at all for her complaint, his evidence did not greatly assist in this matter. If the hearing issue was as to whether she suffered any injury at all, that might be different, but that is not the case here. Her injury was accepted.

31. A report was also obtained by the Respondent from Dr Tomlinson on 12 May 2020. She also gave oral evidence.

32. Dr Tomlinson’s evidence was not particularly helpful because it did not appear that she had reviewed the matter in any detail for the purpose of giving evidence. She wrote her report in May 2020. In evidence, she was asked questions on specific information that had come up during the course of the hearing. Her evidence was to the effect that she could not give an accurate answer to the questions asked, and made reference to the fact that she had something in the order of 5,000 pages in front of her. Thus, on specific matters, her tendency was to defer to her report.

33. Such an approach does not help the decision maker because often in a disputed matter such as this, there are different issues that have arisen on the evidence that make it necessary for differing scenarios to be put to the expert medical witnesses to see whether, in the case of different facts or a different emphasis, there might be a change in their opinions. Professional witnesses have to ensure they are across the issues upon which they are giving evidence to genuinely assist the decision makers. Otherwise, their effective input into the process is limited. Parties relying on their opinions can be put in a difficult position if the expert witnesses have not properly prepared for the hearing process.

34. In response, however, to a question that people might suffer from the Applicant’s condition for a long period of time, Dr Tomlinson accepted that that was possible. She said that she had not seen anything in the literature which supported anything more than 10 to 11 years but then gave evidence that the literature (which she did not specify) was very sparse. She conceded that a longer period was possible, pointing out that it would depend on how the injury was treated. Again, this was in generality. 

35. Therefore, in assessing the evidence, we have an important starting point as to whether the Applicant is accepted as a witness of truth or not. Here, the Tribunal accepts that she is.  There is evidence to support the ongoing nature of her right elbow problem and treatment for those problems. There is no evidence of a spontaneous improvement following the termination of her duties but in that regard, she has been able to manage the symptoms better by arranging her activities so as to minimize aggravation. This is in line with the views of her General Practitioners as set out above.

36. This evidence is consistent with the opinion of Dr Suyapto. More importantly, it is consistent with the account of the Applicant in her evidence which is accepted by the Tribunal as an accurate and reliable testimony with regards to that injury. Whilst Dr Haigh could not make a diagnosis of her ongoing condition, there is ample evidence before the Tribunal that she continues to suffer problems with her right elbow (however variously technically described) which arose as a consequence of her work and has continued to affect her notwithstanding she is no longer undertaking that actual work. The decision under review that she has ceased to be impacted by this injury is not consistent with the evidence as accepted by the Tribunal.

37. The Tribunal was advised that the Applicant commenced receiving Centrelink payments on 5 June 2019, and that she does not seek income protection beyond this time.

    Conclusion and Finding

38. Whilst the term ‘humeral epicondylitis’ in the Consent Order might not be a popular descriptor in medical circles at this time, the description by Dr Haigh of it being common to the elbow in general would seem appropriate for the symptoms described by the Applicant in the witness box and over the long course of this matter, certainly since 2010.

39. It is the finding of this Tribunal that the Applicant continues to suffer from those injuries she sustained during the course of her employment with the Department. 

40. Thus, the Decision of Comcare dated 4 October 2019 is not affirmed. Insofar as it is necessary, the compensation for entitlements pursuant to s.19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) is only claimed from 11 March 2019 to 4 June 2019.

41. The Applicant continues to suffer from the effect of her accepted injury. 

42. The Applicant is entitled to her costs of this action to be taxed if not agreed.

    Decision

43. The decision under review is set aside and substituted with a decision that the applicant continues to suffer from the effects of the compensable injury and has ongoing entitlements to compensation pursuant to the Safety, Rehabilitation and Compensation Act 1988 (Cth), noting her entitlements to s.19 payments are limited to a period from 11 March 2019 to 4 June 2019.

44.     I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for the decision herein of Member A Ward.

............................[Sgnd]...............................

Legal Administrative Assistant

Dated: 31 March 2022   

Date of hearing:	6, 7 & 8 December 2021
Advocate for the Applicant:	Leanne Lerosa, Nyland Chambers
Advocate for the Respondent:	Lindsay Cooper, Australian Government Solicitor