Ford and Comcare (Compensation)

[2020] AATA 3388

Ford and Comcare (Compensation) [2020] AATA 3388 (3 September 2020)

Division:GENERAL DIVISION

File Number:          2018/3479

Re:VANESSA FORD

APPLICANT

AndCOMCARE

RESPONDENT

DECISION

Tribunal:Senior Member Katter

Date:3 September 2020

Place:Brisbane

The decision under review of 1 June 2018 is set aside and the matter is remitted to the Respondent for reconsideration.

...................................[SGD].....................................

Senior Member Katter

CATCHWORDS

COMPENSATION – workplace injury – whether symptoms or incapacity that the Applicant continues to experience are sufficient to create an entitlement to benefits under ss 16 and 20 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) – whether, on the balance of probabilities, the Applicant suffers incapacity to work – evidence obtained by covert surveillance – reviewable decision set aside

LEGISLATION

Administrative Appeals Tribunals Act 1975 (Cth)

Safety, Rehabilitation and Compensation Act 1988 (Cth)

CASES

Comcare v Power [2015] FCA 1502

REASONS FOR DECISION

Senior Member Katter

3 September 2020

APPLICATION

1. The Applicant seeks a review of the Respondent’s decision dated 1 June 2018, that the Applicant was not entitled to compensation in accordance with sections 16 and 20 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the Act”).

   BACKGROUND

2. The Applicant commenced employment with the Australian Taxation Office as a client service representative in 2002[1].

   [1]Exhibit 1, T Documents, T4, page 14; Exhibit 4, Statement of Issues, Facts and Contentions of the Respondent dated 19 September 2019, paragraph 4. 

3. On 3 July 2003 the Applicant slipped on wet grass and fell heavily on her right side while travelling to work[2].  The Applicant gradually returned to work on 7 July 2003[3], returning to full-time hours in or about December 2004[4].  On 10 July 2003 the Applicant submitted a claim for compensation for ‘injury to the lower back and a bruised coccyx’[5]. On 30 July 2003 a delegate of the Respondent accepted liability under s 14 of the Act for a ‘sprain of unspecified site of back’[6].

   [2]           Exhibit 1, T Documents, T4, page 14. 

   [3]           Exhibit 1, T Documents, T4, page 12. 

   [4]           Exhibit 25, Submissions of the Respondent dated 14 April 2020, paragraph 5.

   [5]           Exhibit 1, T Documents, T4, page 14. 

   [6]           Exhibit 1, T Documents, T5, page 17. 

4. At a work Christmas function in December 2004, the Applicant fell, aggravating the injury from July 2003[7], while dancing[8].  The Applicant was certified as unfit for work until June 2005, when the Applicant commenced a graduated return to work[9]. 

   [7]           Exhibit 1, T Documents, T4, pages 9-16. 

   [8]           Transcript, page 144, lines 29 – 31.   

   [9]Exhibit 25, Submissions of the Respondent dated 14 April 2020, paragraph 7; Exhibit 1, T Documents, T93, page 852.

5. The Applicant commenced sick leave on 28 August 2006[10].  

   [10]          Exhibit 3, Summonsed records briefed to Drs Isailovic and Halliday, page 196. 

6. On 23 January 2007 a delegate of the Respondent ‘accepted’ liability for ‘major depressive disorder, single episode’, deciding that that condition was ‘secondary’ to the Applicant’s ‘sprain of unspecified site of back’[11].

   [11]          Exhibit 1, T Documents, T33.  

7. On 17 January 2008 the Applicant commenced sick leave[12].

   [12]          Exhibit 3, Summonsed Records, Commonwealth Superannuation Corporation, page 131. 

8. On 21 October 2009 the Commonwealth Superannuation Corporation Panel recommended granting the Applicant an invalidity certificate for total and permanent incapacity[13].  On 9 December 2009 the Applicant retired from employment for invalidity[14].

   [13]          Exhibit 3, Summonsed records briefed to Drs Isailovic and Halliday, page 197.

   [14]          Exhibit 4, Statement of Issues, Facts and Contentions of the Respondent dated 19           September 2019, paragraph 11.   

9. On 21 April 2015 a delegate of the Respondent gave notice to the Applicant, as to the Applicant no longer suffering from the effects of a sprain of unspecified site of back and major depressive disorder, single episode[15].

   [15]          Exhibit 1, T Documents, T83, pages 538-542.

10. Also on 21 April 2015, a delegate of the Respondent ‘accepted’ liability for the accepted conditions[16]:  chronic pain syndrome[17] and adjustment disorder with mixed emotional features[18].  

    [16]          Exhibit 1, T Documents, T83, page 538. 

    [17]          Exhibit 1, T Documents, T83, page 538. 

    [18]          Exhibit 1, T Documents, T83, page 538. 

11. Further to the notice given on 21 April 2015[19], on 22 May 2015 a delegate of the Respondent determined that the Applicant no longer suffered from the effects of sprain of unspecified site of back and major depressive disorder, single episode[20].

    [19]          Exhibit 1, T Documents, T83, pages 538-542.

    [20]          Exhibit 1, T Documents, T86, page 547. 

12. On 8 February 2018 the Respondent sent to the Applicant a notice of intention to determine no present entitlements with respect to the accepted conditions (“disorders of the coccyx and adjustment reaction with mixed emotional features”)[21].

    [21]          Exhibit 1, T Documents, T103, pages 913 - 915. 

13. On 14 March 2018 a delegate of the Respondent determined that the Applicant was not entitled to compensation pursuant to sections 16 and 20 of the Act, in that it was determined that the effects of the accepted conditions (“disorders of the coccyx and adjustment reaction with mixed emotional features”[22]) had “ceased”[23]. 

    [22]          Exhibit 1, T Documents, T105, page 932.

    [23]          Exhibit 1, T Documents, T105, page 932. 

14. On 9 May 2018 the Applicant requested a reconsideration of the determination dated 14 March 2018[24].  On 1 June 2018 a delegate of the Respondent affirmed the determination dated 14 March 2018[25], finding that the evidence did not ‘show’ that the Applicant continued to suffer the effects of the accepted conditions (“disorders of the coccyx and adjustment reaction with mixed emotional features”)[26]. 

    [24]          Exhibit 1, T Documents, T109 – T109.1, pages 938 – 940. 

    [25]          Exhibit 1, T Documents, T110, pages 950 – 953. 

    [26]          Exhibit 1, T Documents, T110, page 951.

15. On 23 June 2018 the Applicant applied to the Tribunal for a review of the decision dated 1 June 2018[27].  

    [27]          Exhibit 1, T Documents, T1, pages 1 – 5.

    ISSUES

16. The Respondent submitted that the issues to be determined are[28]:

    i.  whether the Applicant continues to suffer from ‘disorders of the coccyx’;

    ii. whether as at 14 March 2018 to the present date, the ‘disorders of the coccyx’ gave rise to a need for medical treatment or result in an incapacity for work such that the Applicant has a present entitlement to compensation under ss 16 and 20 of the Act;

    iii.  Whether the Applicant continues to suffer from ‘adjustment disorder with mixed emotional features’;

    iv. If the Applicant continues to suffer from ‘adjustment disorder with mixed emotional features’, does it continue to be a disease within the meaning of s 5B of the Act and therefore an injury within the meaning of s 5A(1)(a) of the Act; and

    v. Whether as at 14 March 2018 and to the present date the ‘adjustment disorder with mixed emotional features’ gave rise to a need for medical treatment or results in an incapacity for work such that the Applicant has a present entitlement to compensation under ss 16 and 20 of the Act.

    [28]          Exhibit 25, Submissions of the Respondent dated 14 April 2020, paragraph 15.

    SECTIONS 16 AND 20

17. Sections 16 and 20 of the Act[29] relevantly state: 

    [29]          Act No. 75 of 1988, C2019C00158 registered 1 May 2019. 

    “16  Compensation in respect of medical expenses etc.

    (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.

    Note:  Compensation is not payable under this subsection in relation to      certain claims (see section 119A).

    (2)      Subsection (1) applies whether or not the injury results in death, incapacity   for work, or impairment. …
                20  Compensation for injuries resulting in incapacity where employee is in   receipt of a superannuation pension

    (1)      Compensation payable to an employee who is incapacitated for work as a   result of an injury is determined in accordance with this section if:

    (a)       the employee is retired from his or her employment (whether   the employee retired voluntarily or was compulsorily retired); and
       (b)       the employee receives a pension under a superannuation scheme   as a result of the employee's retirement.

    (2)       Comcare is liable to pay compensation to the employee, in respect of   the injury, in accordance with this section for each week after the date of   the retirement during which the employee is incapacitated. … ” 

18. Sections 5A and 5B of the Act relevantly state:

    “5A  Definition of injury

    (1)      In this Act:

    "injury" means:

    (a)       a disease suffered by an employee; or
       (b)       an injury (other than a disease) suffered by an employee, that is a   physical or mental injury arising out of, or in the course of,   the employee’s employment; or

    (c)       an aggravation of a physical or mental injury (other than a disease)   suffered by an employee (whether or not that injury arose out of, or   in the course of, the employee's employment), that is   an aggravation that arose out of, or in the course of, that   employment;

    but does not include a disease, injury or aggravation suffered as a result of   reasonable administrative action taken in a reasonable manner in respect            of the employee's employment.

    5B  Definition of disease

    (1)       In this Act:

    "disease" means:

    (a)       an ailment suffered by an employee; or
       (b)       an aggravation of such an ailment;

    that was contributed to, to a significant degree, by the employee's   employment by the Commonwealth or a licensee.

    (2)      In determining whether an ailment or aggravation was contributed to, to   a significant degree, by an employee's employment by   the Commonwealth or a licensee, the following matters may be taken into            account:

    (a)       the duration of the employment;
       (b)       the nature of, and particular tasks involved in, the employment;
       (c)       any predisposition of the employee to the ailment or aggravation;
       (d)       any activities of the employee not related to the employment;
       (e)       any other matters affecting the employee's health.

    This subsection does not limit the matters that may be taken into account.

    (3)       In this Act:

    "significant degree" means a degree that is substantially more than   material.”

19. The Respondent states, referring to Comcare v Power [2015] FCA 1502 at [70] per Katzmann J, that there is a practical onus on the Respondent to persuade the Tribunal of the circumstances which justify a finding that compensation payments should no longer be made[30]. 

    [30]          Exhibit 25, Submissions of the Respondent dated 14 April 2020, paragraph 16.

    Disorder of the Coccyx

20. The Respondent submits that the disorder of the coccyx has “completely resolved”[31] and refers to the report of Dr Halliday[32].

    [31]          Exhibit 25, Submissions of the Respondent dated 14 April 2020, paragraph 21. 

    [32]          Exhibit 25, Submissions of the Respondent dated 14 April 2020, paragraph 28. 

21. Dr Halliday in the report dated 13 November 2017[33] stated that the Applicant “ … has had extensive investigation including a recent bone scan.  The recent bone scan is normal.  There is no evidence of arthritis, ongoing fracture or other orthopaedic explanations for [the Applicant’s] pain.  It is noted that [the Applicant] has an acute angulation of the coccyx.  This can be a normal variant”[34].  Dr Halliday referred to there having been an injury to the coccyx at the time of the incident, but stated that it has “long since healed”[35].  Dr Halliday further stated that there was no ongoing objective evidence of any physical injury in the area of the coccyx[36].    

    [33]          Exhibit 1, T-Documents, T96, page 887. 

    [34]          Exhibit 1, T-Documents, T96, page 887. 

    [35]          Exhibit 1, T-Documents, T96, page 888. 

    [36]Exhibit 25, Submissions of the Respondent dated 14 April 2020, paragraph 29; Exhibit 1, T Documents, T96, page 888.

22. Dr Halliday provided a supplementary report dated 12 January 2018[37], further to consideration of surveillance video of the Applicant which was provided by the Respondent to the doctor[38].  Dr Halliday stated that he could not find an orthopaedic condition that the Applicant is suffering from and there are no firm physical signs indicating the presence of any ongoing orthopaedic pathology[39].    

    [37]          Exhibit 1, T Documents, T101, pages 908 – 910; Exhibit 1, T Documents, T101, page 909.

    [38]          Exhibit 25, Submissions of the Respondent dated 14 April 2020, paragraph 31. 

    [39]          Exhibit 1, T-Documents, T103, page 910. 

23. The Applicant referred to the opinion of Ms Kristie Tyson, a physiotherapist[40].  Ms Tyson in the report dated 22 December 2018 stated that the Applicant “is suffering from symptoms consistent with a chronic pain response affecting the sacrum bilaterally, but worse on the left than the right”[41]. 

    [40]Exhibit 25, Submissions of the Respondent dated 14 April 2020, paragraph 32, Transcript, page 18, line 5.

    [41]Exhibit 25, Submissions of the Respondent dated 14 April 2020, paragraph 31, Exhibit 15, Report of Kristie Tyson dated 22 December 2018, page 2.

24. The Applicant also referred to the opinion of Dr Vecchio[42].  Dr Vecchio stated in a report dated 26 November 2014 that “the original fracture and soft tissue trauma has been superseded by chronic pain syndrome of the left hemi-pelvis with concurrent pelvic instability”[43].  Dr Vecchio stated that[44] “psychological issues, the effect of ageing, concurrent disorders of the lumbo-sacral spine which are independent and constitutional may all be visualised on imaging.  However, the major problem here is the hemi-pelvic discomfort/chronic pain and peripelvic weakness which are part of the underlying condition and a consequence of the fall in 2003”[45]. 

    [42]Exhibit 25, Submissions of the Respondent dated 14 April 2020, paragraph 32; Exhibit 5, Submissions of the Applicated dated 31 October 2019, page 1; Exhibit 1, T Documents, T75, pages 495 – 500.

    [43]          Exhibit 1, T-Documents, T75, page 496.  

    [44]          Exhibit 1, T-Documents, T75, page 498.  

    [45]          Exhibit 1, T-Documents, T75, page 498.  

25. Dr Vecchio, in a supplementary report dated 20 January 2015, stated that the chronic pain disorder was not a psychological condition and was of a physical origin[46].  Dr Vecchio further explained that “the injury described, a fall on to the buttocks and subsequent descriptors of pain, together with the physical examination evidence of muscular wasting and pelvic instability, does fit with the evolutionary characteristics of a sequela chronic pain syndrome following the soft tissue trauma related to the fall”[47].  

    [46]Exhibit 25, Submissions of the Respondent dated 14 April 2020, paragraph 32; Exhibit 1, T Documents, T79, pages 525 – 527. 

    [47]          Exhibit 1, T-Documents, T79, page 526.

26. The Respondent submits that Dr Halliday’s opinion is consistent with the views expressed by others qualified to assess the Applicant’s coccyx[48].  The Respondent referred to a report prepared by Dr David Eaton, an occupational physician, dated 13 July 2005[49].  Dr Eaton stated that “the cause of [the Applicant’s] pain is not clear.  There is no evidence of ongoing active pathology in the region of the sacro-coccygeal joint.  In addition, there is no evidence of other pathology in the lower spine or sacro-iliac joint … it is unclear why the pain has continued, as there is no ongoing evidence of significant pathology in the     region. …”[50].  The Respondent additionally cited a report from the Applicant’s treating surgeon, Dr Paul Licina, dated 29 June 2006, where the doctor commented on a recent MRI taken on the Applicant’s spine, stating that the “MRI scan shows that the lumbar spine is normal and the coccyx is anteverted but there is no serious pathology in the sacrum or coccyx”[51].

    [48]          Exhibit 25, Submissions of the Respondent dated 14 April 2020, paragraph 40.

    [49]          Exhibit 1, T Documents, T9, pages 24-33.

    [50]          Exhibit 1, T Documents, T9, pages 24-33.

    [51]          Exhibit 1, T Documents, T21, page 77.

27. Dr New in a report dated 5 March 2018 stated relevantly that the Applicant’s “ … problem is the result of pathological changes of her coccygeal nerves rather than the bones of her lumbar spine.  Her observed behavior is consistent with her previous reports, and with recommended behavior”[52].  Dr New further states in that report that “ … there is a feasible and probable mechanism (recurrent falls in a manner very likely to cause injury to her coccyx and the associated coccygeal nerves), with any associated bony injury having had ample opportunity to heal since these falls many years ago”[53].

    [52]          Exhibit 1, T Documents, T104, page 920.

    [53]          Exhibit 1, T Documents, T104, page 924.

28. The Respondent submits that Dr Halliday’s opinion ought to be preferred[54].  The Respondent submits that Dr Halliday is best placed to give an opinion on the diagnosis and causation of physical injuries[55], in that an orthopaedic surgeon is qualified to comment on pain in the coccyx, as it forms part of the spine[56].  Dr Halliday also stated in oral evidence that he was capable of assessing neuropathic pain, in that sciatic pain (referred nerve pain) is often associated with spinal problems[57] and was a common condition that the doctor was often confronted with in practice[58]. The Respondent submitted that Ms Tyson’s qualifications and experience ‘do not compare to Dr Halliday’s’[59], because Ms Tyson had only commenced treating the Applicant in March 2018, it was unclear how many times Ms Tyson had treated the Applicant and Ms Tyson was not made available for cross-examination[60]. 

    [54]          Exhibit 25, Submissions of the Respondent dated 14 April 2020, paragraph 34. 

    [55]          Exhibit 25, Submissions of the Respondent dated 14 April 2020, paragraph 35.

    [56]Exhibit 25, Submissions of the Respondent dated 14 April 2020, paragraph 35; Transcript, P-64 , lines 36-40.

    [57]          Transcript, P-65, lines 5-9.

    [58]          Transcript, P-65, lines 15-16.

    [59]          Exhibit 25, Submissions of the Respondent dated 14 April 2020, paragraph 37.

    [60]          Exhibit 25, Submissions of the Respondent dated 14 April 2020, paragraph 37.   

29. The Respondent submits that Dr Vecchio’s reports lack relevance as they are out of date[61].  The Respondent submits that this is because the reviewable decision was made some 3.5 years after Dr Vecchio’s most recent report of January 2015[62].  Further, the Respondent submits that as Dr Vecchio has not had regard to the surveillance material collected in September and October 2017, has not considered nor responded to Dr Halliday’s opinion and was not made available for cross-examination, the opinion should be ‘given little, if any, weight’[63]. 

    [61]          Exhibit 25, Submissions of the Respondent dated 14 April 2020, paragraph 38.   

    [62]          Exhibit 25, Submissions of the Respondent dated 14 April 2020, paragraph 38.   

    [63]          Exhibit 25, Submissions of the Respondent dated 14 April 2020, paragraph 38.

30. The Respondent submits that the Tribunal ‘should not be satisfied that it is reliable’ regarding the acceptance of the Applicant’s self-reported existence of pain in the coccyx as a basis for the ongoing injury[64].  The Respondent submits that this is because the Applicant’s pattern of presenting to the general practitioner casts doubt on the extent of the injury[65], notably that when the Applicant became aware of the surveillance material and the Respondent’s intention to cease liability, the Applicant commenced reporting coccyx symptoms, specifically, on a continuous basis[66].  The Respondent also submits that the Applicant’s use of a walking stick commenced after the determination was made[67] and the Applicant’s presentation at the hearing was ‘vastly different’ from how the Applicant presented on everyday surveillance footage captured and during assessments by Doctors Halliday and Isailovic[68].  Finally, the Respondent submits that the Applicant’s inability to report any issues with the coccyx to Dr Ashley Hennessy, a rheumatologist whose qualifications the Applicant contends are appropriate to treat and provide an opinion on the condition, was ‘highly concerning’[69].

    [64]          Exhibit 25, Submissions of the Respondent dated 14 April 2020, paragraph 39.

    [65]          Exhibit 25, Submissions of the Respondent dated 14 April 2020, paragraph 39(a).

    [66]          Exhibit 25, Submissions of the Respondent dated 14 April 2020, paragraph 39(a).

    [67]          Exhibit 25, Submissions of the Respondent dated 14 April 2020, paragraph 39(b).

    [68]          Exhibit 25, Submissions of the Respondent dated 14 April 2020, paragraph 39(d).

    [69]Exhibit 25, Submissions of the Respondent dated 14 April 2020, paragraph 36; Exhibit 1, T Documents, T93, pages 850 – 871.

1. As referred to above, Dr Halliday referred to there having been an injury to the coccyx, which had healed, with no physical signs of ongoing orthopaedic pathology. Ms Tyson referred to symptoms consistent with a chronic pain response. Dr Vecchio stated that there was chronic pain and peripelvic weakness as a consequence of the injury. Dr Eaton referred to there being pain, without evidence of significant pathology. Dr New identified pathological changes in the coccygeal nerves, rather than the bones of the lumbar spine. There is therefore, on balance, evidence that the Applicant continues to suffer from pain from the coccygeal nerves, being a disorder of the coccyx and is therefore incapacitated. Therefore, as at 14 March 2018 to the present by reason of the disorder of the coccyx of the Applicant the Respondent is liable to pay compensation to the Applicant in respect of that injury in accordance with s 20 of the Act. Further, as at 14 March 2018 to the present, the Respondent is liable to pay, in respect of the cost of medical treatment obtained in relation to the disorder of the coccyx, of such amount as the Respondent determines is appropriate to that medical treatment.

   Adjustment disorder with mixed emotional features

2. The Respondent submits that regardless of the correct diagnosis for the Applicant’s psychological injury, the psychological injury has been ‘completely resolved’[70].  The Respondent relies on the opinion of Dr Isailovic in support of this contention[71]. 

   [70]          Exhibit 25, Submissions of the Respondent dated 14 April 2020, paragraph 44.

   [71]          Exhibit 25, Submissions of the Respondent dated 14 April 2020, paragraph 44.

3. Dr Isailovic, in a report dated 26 September 2017, diagnosed the Applicant with an unspecified personality disorder[72].  Dr Isailovic considered that the Applicant presented with no significant psychiatric symptoms and did not meet the criteria for a depressive order[73].  Dr Isailovic stated that the Applicant no longer met the DSM criteria for a depressive condition[74] and expressed the opinion that it was “hard to attribute her reported disability to the injury [the Applicant] had in July 2003”[75]. 

   [72]          Exhibit 25, Submissions of the Respondent dated 14 April 2020, paragraph 45.

   [73]Exhibit 25, Submissions of the Respondent dated 14 April 2020, paragraph 45; Exhibit 1, T Documents, T93, page 865.

   [74]Exhibit 25, Submissions of the Respondent dated 14 April 2020, paragraph 45; Exhibit 1, T Documents, T93, page 865.

   [75]          Exhibit 1, T Documents, T93, page 867.

4. In the report dated 26 September 2017, Dr Isailovic did not agree that the Applicant was suffering from a pain disorder because[76]:

   “ … Firstly, despite reporting the pain as the main reason for her predicament, she does not actually display significant pain behaviors since the compensation process has been stabilised.  There has been avoidance of treatment, such as non-cooperation with pain clinic, missed appointments with Dr New.  She is currently off painkillers.  She does not display persistent anxiety about health symptoms.  Her anxiety is more related to her return to work and financial difficulties.  She does not devote excessive            time and energy to the symptoms and health concerns. … ” 

   [76]          Exhibit 1, T Documents, T93, page 866.

5. In an additional report dated 11 January 2018, Dr Isailovic stated that the relevant surveillance footage further justified her opinion that the Applicant was not suffering from a psychiatric condition[77].  In response to the surveillance footage, Dr Isailovic stated[78]:

   “ … Obviously pain never prevented [the Applicant] from having a reasonable social        life, meaningful social relationships, enjoyable social and recreational activities and attending to all the areas of daily living and travelling.  The pain only prevents her from working.  This is very inconsistent with a diagnosis of pain disorder (DSM-5: Somatic Symptom Disorder with predominant pain)”. 

   [77]          Exhibit 1, T Documents, T100, pages 900-905.

   [78]          Exhibit 1, T Documents, T100, page 905.

6. The Respondent submits that Dr Isailovic’s opinion supports a conclusion that the psychological injury has ceased entirely[79].

   [79]          Exhibit 25, Submissions of the Respondent dated 14 April 2020, paragraph 47.

7. Dr New states, in his report dated 5 March 2018 that the Applicant “ … continues to have an Adjustment Disorder with respect to her predicament of coccygeal pain which has prevented her returning to her usual activities”[80].

   [80]          Exhibit 1, T Documents, T104, page 921.

8. The Respondent submits that the opinion of Dr Isailovic should be preferred over Dr New[81].  The Respondent submits that Dr Isailovic’s opinion of the Applicant is based on her independent examination of the Applicant[82] and accounts for the unreliability of the Applicant’s self-reporting in light of the surveillance footage[83].  In addition, the Respondent submits that Dr Isailovic’s opinion is consistent with the opinion of Mr Adrian Bosch, the Applicant’s treating psychologist[84].  In his report dated 14 June 2018, Mr Bosch stated[85]: “[The Applicant] reported on having managed generally well with euthymic mood prior to notification [of the Respondent ceasing liability].  [The Applicant] reported chronic pain but had adjusted her lifestyle to manage.”

   [81]          Exhibit 25, Submissions of the Respondent dated 14 April 2020, paragraph 48.

   [82]          Exhibit 25, Submissions of the Respondent dated 14 April 2020, paragraph 49.

   [83]          T100, page 905.

   [84]          Exhibit 25, Submissions of the Respondent dated 14 April 2020, paragraph 50.

   [85]          Exhibit 24, Respondent’s Tender Bundle, page 26.

9. The Respondent questioned Dr New’s reliance on the Applicant’s self-reporting to inform his opinion[86].  The Respondent submits that Dr New’s opinion is based on the Applicant’s self-reporting of ongoing pain which is not explained by the most recent orthopaedic evidence[87].  The Respondent submits that Dr New’s most recent report[88] illustrates that the doctor based his opinion that the Applicant was suffering from coccydynia on “her own comments, observed behavior before, during and following consultations, and her reports of her activities over a considerable period of time”[89]. 

   [86]          Exhibit 25, Submissions of the Respondent dated 14 April 2020, paragraph 51.

   [87]          Exhibit 25, Submissions of the Respondent dated 14 April 2020, paragraph 51.   

   [88]Exhibit 18, Applicant’s Statement of Further Evidence and Attachments received 12 June 2019, Dr New Report dated 13 May 2019.

   [89]          Exhibit 25, Submissions of the Respondent dated 14 April 2020, paragraph 51.

10. As referred to above, Dr Isailovic stated that the pain prevents the Applicant from working, but the Applicant’s behaviours are “very inconsistent with a diagnosis of a pain disorder”[90]. Dr New states in his report dated 13 May 2019 that in his opinion the Applicant continues to experience an adjustment disorder, noting that the DSM5 diagnostic criteria of adjustment disorder are not limited to manifestations of emotional distress such as anxiety and depression, but include behavioural symptoms, also described as disorder of conduct[91].  Dr New described this as a very common feature of those living with persistent pain, especially those with factors mitigating against their progress to adjusting well to their changed circumstances[92]. Having regard to the evidence, on balance, the Applicant continues to suffer from adjustment disorder with mixed emotional features. That adjustment disorder with mixed emotional features is a disease within the meaning of s 5B of the Act, in that it is an ailment suffered by the Applicant that was contributed to, to a significant degree, by the Applicant’s employment by the Commonwealth, having regard to the evidence of Dr New. Therefore, there is an injury in accordance with the definition in s 5A(1)(a) of the Act by reason of the disease in s 5B. Further, as at 14 March 2018 to the present date the Respondent is liable to pay, in respect of the cost of medical treatment obtained in relation to the adjustment disorder with mixed emotional features, of such amount as the Respondent determines is appropriate to that medical treatment.

    [90]          Exhibit 17, Medical Report of Dr Aleksandra Isailovic dated 27 February 2019, pages 5 and 6.

    [91]Exhibit 18, Applicant’s Statement of Further Evidence and Attachments received 12 June 2019, Dr New Report dated 13 May 2019, page 3.

    [92]Exhibit 18, Applicant’s Statement of Further Evidence and Attachments received 12 June 2019, Dr New Report dated 13 May 2019, page 4.

    DECISION

11. The decision under review of 1 June 2018 is set aside and the matter is remitted to the Respondent for reconsideration[93].

    [93] Section 43(1)(c)(ii) of the Administrative Appeals Tribunal Act 1975 (Cth).

I certify that the preceding 41 (forty-one) paragraphs are a true copy of the reasons for the decision herein of Senior Member Katter

..................................[SGD]......................................

Associate

Dated: 3 September 2020

Date of hearing:

16 and 17 March 2020

Date final submissions received:

Applicant:

9 July 2020

Appeared in person

Counsel for the Respondent:

Ms K. Slack

Solicitors for the Respondent:

Australian Government Solicitor