Fitzgerald and Comcare (Compensation)

The Administrative Appeals Tribunal considered a dispute between an applicant and Comcare concerning ongoing compensation entitlements. The applicant had initially accepted liability for an aggravation of synovitis and tenosynovitis in the right elbow, sustained in 2004. However, Comcare had subsequently determined that the applicant was no longer suffering from this condition, based on medical evidence. A Consent Order in 2010 had set aside this decision and substituted it with a finding that the applicant was entitled to compensation for the "aggravation of humeral epicondylitis (right)". The central issue before the Tribunal was whether the applicant continued to suffer from the effects of this work-related injury at the time of the hearing.

The Tribunal was required to determine whether the applicant's accepted condition, as defined by the 2010 Consent Order, continued to affect her, and consequently, whether she remained entitled to compensation. This involved assessing the medical evidence presented by both parties, particularly the reports from Dr. Suyapto for the applicant and Dr. Haigh for Comcare, and considering the weight to be given to expert opinions, especially those based on generalities rather than specific findings related to the individual.

The Tribunal found that the applicant's complaints were consistent and supported by medical evidence, including a report from Dr. Suyapto, an occupational physician. Dr. Suyapto opined that the applicant remained symptomatic and that the persistence of her symptoms indicated the ongoing effects of the work-related injury, even if they had not improved. In contrast, Dr. Haigh expressed a view that there was no diagnosis for the applicant's complaints and relied on generalities regarding the duration of such conditions and the correlation between radiological findings and symptoms. The Tribunal, referencing the principle established in *State Government Insurance Commission v Laube*, cautioned against accepting expert evidence based on statistical probabilities for the majority of individuals as proof for a specific individual. The Tribunal concluded that the applicant continued to suffer from the effects of the compensable injury.

The Tribunal set aside the decision under review and substituted it with a decision that the applicant continues to suffer from the effects of the compensable injury and has ongoing entitlements to compensation. These entitlements were noted to be limited to s.19 payments for the period between 11 March 2019 and 4 June 2019. The applicant was also awarded costs of the action.