Garnett and Comcare (Compensation)

Garnett and Comcare (Compensation) [2018] AATA 160 (5 February 2018)
Division:GENERAL DIVISION
File Number(s): 2014/5015
Re:Jessica Garnett
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Deputy President Gary Humphries
Dr Bernard Hughson, Member
Date:5 February 2018
Place:Canberra

The Tribunal sets aside the reviewable decision of 21 August 2014 and instead decides that Ms Garnett:
(a)is entitled to compensation under s 16 for the cost of medical treatment in relation to her accepted condition;
(b)is not entitled to compensation under ss 19 or 29 for that condition.

........................................................................
Deputy President Gary Humphries
Catchwords
COMPENSATION – workplace injury – Chronic Pain Syndrome – whether symptoms or incapacity that the Applicant continues to experience is sufficient to entitle her to benefits under ss 16, 19, or 29 of the Safety, Rehabilitation and Compensation Act 1988 – whether medical treatment is in relation to the Applicant’s accepted condition of chronic pain syndrome and is reasonable to obtain in the circumstances – whether there is a reasonable requirement for household services – whether, on the balance of probabilities, the Applicant suffers any incapacity to work – evidence obtained by covert surveillance – credit of Applicant – inconsistent evidence regarding level of incapacity – reviewable decision set aside.
Legislation
Safety, Rehabilitation and Compensation Act 1988 ss 4, 14, 16, 19, 29
Administrative Appeals Tribunal Act 1975 s 35
Cases
Comcare v Power [2015] FCA 1502
Lees v Comcare[1999] FCA 753
REASONS FOR DECISION
Deputy President Gary Humphries
Dr Bernard Hughson, Member
5 February 2018
BACKGROUND

Ms Jessica Garnett, the Applicant in these proceedings, sustained a workplace injury while employed by the Civil Aviation Safety Authority (CASA) on 8 July 2008. Comcare, the Respondent, later noted that the injury occurred as a result of repetitive computer and telephone work.
Comcare accepted liability in October 2008 for a condition of sprain of unspecified site of back (right) and sprain of unspecified site of shoulder and upper arm (right).[1] In August 2009 Comcare made a determination amending Ms Garnett’s accepted condition to Chronic Pain Syndrome. In January 2011 Comcare accepted a claim for 10 per cent permanent impairment for neck and right shoulder pain, under which it paid compensation to Ms Garnett pursuant to ss 24 and 27 of the Safety, Rehabilitation and Compensation Act 1988 (the Act).
[1] The use of italics herein generally indicates quotations from tendered documents or from live evidence.
In response, it seems, to claims made by Ms Garnett for compensation under ss 16, 19 and 29 of the Act, Comcare commissioned a medical examination by rheumatologist Dr Philip Vecchio on 20 January 2014. Following his report, Comcare determined on 21 May 2014 that Ms Garnett had no present entitlement to compensation under those sections for medical treatment, incapacity and household assistance. Ms Garnett in turn sought to have this decision reconsidered, but on 21 August 2014 Comcare affirmed the determination of 21 May. On 26 September 2014 Ms Garnett sought merits review of this determination by the Tribunal.
THE RELEVANT LEGISLATION
The threshold to entitlement to compensation under the Act generally is s 14. It provides:
(1) 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…
An injured employee’s entitlement to medical treatment is governed by s 16:
(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…
An injured employee’s entitlement to incapacity payments for an accepted condition is set out in s 19. Relevantly, the section provides:
(1) This section applies to an employee who is incapacitated for work as a result of an injury, other than an employee to whom section 20, 21, 21A or 22 applies.
(2) Subject to this Part, Comcare is liable to pay to the employee in respect of the injury, for each week that is a maximum rate compensation week during which the employee is incapacitated, an amount of compensation …
The section goes on to set out the formula by which that compensation is calculated.
The expression incapacity for work is defined in s 4(9):
(9) A reference in this Act to an incapacity for work is a reference to an incapacity suffered by an employee as a result of an injury, being:
(a) an incapacity to engage in any work; or
(b) an incapacity to engage in work at the same level at which he or she was engaged by the Commonwealth or a licensed corporation in that work or any other work immediately before the injury happened.
Compensation for the cost of household services to an injured worker is provided by s 29, as follows:
(1) Subject to subsection (5), where, as a result of an injury (other than a catastrophic injury) to an employee, the employee obtains household services that he or she reasonably requires, Comcare is liable to pay compensation of such amount per week as Comcare considers reasonable in the circumstances, being not less than 50% of the amount per week paid or payable by the employee for those services nor more than $200.
(2) Without limiting the matters that Comcare may take into account in determining the household services that are reasonably required in a particular case, Comcare shall, in making such a determination, have regard to the following matters:
ISSUES BEFORE THE TRIBUNAL
Comcare placed two contentions before the Tribunal in respect of its liability to Ms Garnett for compensation under the Act. The first was that, to the extent that there was an injury in or around July 2008, that injury is no longer an operative and effective cause of any symptom or incapacity presently experienced by her. The second contention – an alternative to the first – was that, to the extent that Ms Garnett continues to experience any symptoms or incapacity related to her accepted pain condition, those symptoms are not sufficient to entitle her to benefits under s 16, nor is any incapacity sufficient to entitle her to any benefits under ss 19 or 29.
Conversely, Ms Garnett contended that she continues, as at the date of the hearing, to need reasonable medical treatment for her accepted condition, and continues to experience incapacity as a result of that condition, such that her entitlement to compensation under ss 16, 19 and 29 persists.
The Tribunal is thus required to answer the following questions:
(a)Does Ms Garnett continue to suffer the effects of her July 2008 injury?
(b)If so, in relation to that injury:
(i)Does she have a need for reasonable medical treatment pursuant to s 16?
(ii)Does she suffer an incapacity for work entitling her to compensation pursuant to s 19?
(iii)Does she reasonably require household services pursuant to s 29?
In the course of the hearing Comcare introduced a further issue: it submitted that Ms Garnett could not be considered by the Tribunal to be a witness of truth. Before the hearing, the Tribunal considered an ex parte application by Comcare in relation to certain video and photographic evidence obtained by covert surveillance of Ms Garnett. On 24 March 2016 it ordered, pursuant to s 35(4) of the Administrative Appeals Tribunal Act 1975, that this material not be disclosed to Ms Garnett or her legal representatives before Comcare had had the opportunity to cross-examine her. This covert material was tendered at the hearing during cross-examination of Ms Garnett. On the basis of this material and the evidence given by Ms Garnett, the Tribunal formed a view about her truthfulness as a witness, which is discussed below. That view informed the Tribunal’s consideration of the issues referred to in the previous paragraph.
MS GARNETT’S EVIDENCE
Ms Garnett gave evidence that, at the time of her injury in July 2008, she held a business management position at CASA. She delivered training courses and assisted with the entry of data into national databases. This work involved intensive computer work, involving a lot of cutting and pasting. She ceased employment at CASA in December 2009. She later attempted a graduated return to work programme, which lasted about three months, but which still occasioned her pain necessitating medication and physiotherapy. Despite the deployment of voice-activated software, the return to work programme was unsuccessful and was discontinued.
She told the Tribunal that the injury brought on debilitating pain, so severe that it prevented her from driving home some days. The pain manifested in and around the thumb and wrist of her right hand, her forearm close to that wrist and also in her right shoulder blade on the right side of her neck. She described the pain in her hand as sometimes being burning hot.
She told the Tribunal that she had experienced consistency in her pain levels since July 2008:
It’s still exactly the same pain level as it was back in 2008.
This pain is associated with the use of her right hand or arm:
All right. And whilst we’re there, do you – what other – well, do you still experience pain during the day normally now?---Yes. Because I’m right-handed and when I do physical activities, holding a kettle, washing up, hanging the washing out, any physical activity where I have to use my right hand where the wrist gets aggravated, where my pain started, yes, I still have pain in those areas.
She later testified:
So as of around the time that Comcare accepted your claim for permanent impairment, you were experiencing pain as you’ve described to the members of the tribunal back in 2008 in similar locations?---Yes, that’s right.
And to the similar sensations?---Yes. Absolutely. Because I’m right-handed, so anything I do with my right hand, that aggravates the injury.
Ms Garnett said that she is sometimes woken at night by her pain. She also said that normal functions like driving a car aggravates her condition and makes it painful.
In January 2015 she and her husband moved from suburban Canberra to a small rural property in NSW, close to Canberra. There they graze cattle and – at the time of the hearing – 11 horses.
In November 2011 Ms Garnett resumed part-time employment, as a trainer and assessor, with YWCA Canberra. At the time of the hearing she was working 15 hours per week. She told the Tribunal she still experiences pain there – the work that I do in my workplace aggravates my prior injury. However, because she is able to do some of this work from home it is more manageable.
She was asked about working more than the 15 hours per week she is currently employed:
Are you able to work more hours?---I’m not able to work more hours because when I work my injury is aggravated and that impacts on me for the next few days before it might settle down. And then as soon as it settles down and gets better to a degree where it’s fairly manageable, then it’s time to go back to work again, and then it gets exacerbated again in the same site. So the 15 hours is – has been working okay.
And have you, over the period since commencing employment, tried to work more than 15 hours?---I have tried to, yes, and it hasn’t been successful due to the pain or aggravation that I get from doing extra hours.
Ms Garnett was asked about the impact of her condition on her domestic arrangements:
In the home environment have you taken any steps to either ameliorate or restrict the amount of pain you experience?‑‑‑From the pain management program I minimise the amount of cleaning I do at one time, or the amount of washing you take out in the washing basket. You only carry half the washing basket instead of a full load, or maybe two loads in one. It takes me two or three days to do the housekeeping now, or house cleaning instead of maybe a few hours prior to the injury. I buy frozen vegetables instead of having to cut vegetables up because I’m right-handed and that aggravates my pain. So I’ve changed the way that I’m working in the house and the way that I function doing things.
Counsel for Comcare cross examined Ms Garnett about all of these matters. He asked about the impact of her condition on the use of her hands:
You were earlier using some example of picking up a kettle, that that causes you pain?‑‑‑Yes.
You were also using the examples of doing more menial tasks around the house such as washing up and things of that nature?‑‑‑Yes.
I take it whenever the opportunity arises that you make sure that you do things with your left arm rather than your right arm?‑‑‑I tried that and it doesn’t work very well.
What do you mean by that?‑‑‑That I’m right handed, so if I try and clean or wash something with my left hand or use a mouse with the left hand I don’t have the same capacity to do functions with that, so it doesn’t work and it takes longer and you get frustrated and you drop things, and so ‑ ‑ ‑
Take the kettle for example, whenever the opportunity arose you would use your left hand to pick that up, wouldn’t you?‑‑‑Yes, I can do that.
…
Is it the case that whenever both of your hands are available that you would use your left hand to carry your handbag?‑‑‑Yes.
Because to do otherwise would cause pain and you can avoid that pain by using your left arm. Is that what you tell the tribunal?‑‑‑I can’t avoid the pain because it’s not just carrying the handbag that causes pain.
I am just talking about each individual task if I might. At the moment we are talking about your handbag. Whenever the opportunity arises you would use your left hand because to use your right hand would cause you pain?‑‑‑(Indistinct.)
What you have described here this morning is pain of a significant and debilitating nature?‑‑‑Yes.
So I take it that you would – when you go shopping you would carry your handbag in your left arm, on the thumb or left hand?‑‑‑It just depends what I’m doing.
If you’re doing nothing with your other hand that’s what you do, would you not?‑‑‑I can’t confirm if I do that every time I go shopping, no.
The kind of pain that you talk about being provoked if you do anything because you’re a right hand dominant person, the kind of pain would cause you to immediately experience it, would it not?‑‑‑No, not always immediately, no.
Certainly if it’s of the debilitating nature that you describe you would quickly change hands to your left hand, would you not?‑‑‑Yes, I would.
When picking things up if they were capable of being picked up with one hand you would routinely use your left hand, would you not?‑‑‑I’m right handed so I’d do things with my right hand instinctively.
We are not talking about anything at the moment that requires a level of dexterity ‑ ‑ ‑?‑‑‑It doesn’t matter, I’m instinctively right handed, I just do it without thinking about it.
I imagine that having done that that you would immediately change hands?‑‑‑Not necessarily, no.
…
The kind of pain that you have described here this morning is the kind of pain that anyone would be keen to avoid?‑‑‑Yes.
So I imagine that that’s what you do?‑‑‑Whenever I can, yes.
So when your left hand is available your right hand has a break?‑‑‑Yes, that’s [right].
Some of the things you described to Dr Vecchio were that you couldn’t brush your hair with your right hand. Is that right?‑‑‑I can’t recall my exact words to him. I explained that holding a hair brush, holding a pen, holding the kettle aggravates that.
Holding a hair dryer?‑‑‑Yes, holding a hair dryer, definitely.
Combing your hair?‑‑‑Anything I hold in my right hand aggravates this, so, yes, it exacerbates the pain.
You are not seriously suggesting that you have problems combing your hair, are you?‑‑‑When I hold things in my right hand the pain is exacerbated, and that includes a hair brush and a comb and the hair dryer.
Does it include anything?‑‑‑Yes, it does.
A pen?‑‑‑Yes, it does.
Absolutely anything of any weight?‑‑‑(No audible response.)
Does it include all of those things?‑‑‑Yes, it does.
I presume in those circumstances that if you experience pain regardless of how heavy anything is that you would be vigilant about using your left hand to do whatever you could before you require the services of your right hand. Do you agree with that?‑‑‑I’m just used to the pain, I just do it.
…
And we have covered the area that it can be anything of any weight that causes an increase in pain?‑‑‑Yes, it can be.
Do you notice that increase in pain immediately?‑‑‑Not immediately, sometimes it might take a few minutes.
Ms Garnett gave evidence that picking up items such as a shopping basket, a bucket full of water, a kettle or a pen were capable of producing pain, as was using a computer mouse. She said that she avoided doing those things to some extent, but sometimes did things which induced pain otherwise I’d never get anything done. In relation to tasks associated with shopping, such as lifting things into a trolley, she said It’s painful and it’s annoying. However, she said that, since moving to the farm, her regular grocery shopping was done online. In relation to gardening at her home in Canberra, the extent of her involvement was occasional watering flowerbeds; her husband mowed the lawn.
She said that her husband worked in the building industry, and was required to travel around the region so that he might be away from home one, two or three nights once or twice a month. When that occurred Ms Garnett is at home alone, and takes on the task of feeding and watering animals. This includes taking buckets of food to the horses’ paddocks, a task for which she invariably uses trolleys to push the food around.
Ms Garnett’s attention was drawn to the workers compensation claim form she submitted dated 18 November 2010. In that form, she recorded:
Due to my condition, I now am very house-bound, no-one invites me out any more (because I cancelled so often they have given up) & my children don’t contact me very often. Driving aggravates my condition so I rely on my husband to drive me or others to give me a lift…
In a box headed MOBILITY… Which one of the following descriptions best fits the effect your condition has had on your ability to get around? Ms Garnett ticked the box marked Restricted to home and vicinity. Can only travel outside home with door-to-door transport and the assistance of others.
Under cross-examination, Ms Garnett agreed that the form sought a description of her ability to drive at that time, whereas her answer described her choice not to drive, rather than her inability to do so. She also agreed that her condition had not contributed to the infrequency of her contact with her children.
At several points Ms Garnett was asked questions which she said she was unable to answer – or answer comprehensively – without reference to diaries she kept. Comcare called for those diaries, but they were not produced.
On the second day of the hearing, while being cross examined, Ms Garnett was shown some of the material over which the s 35 order had been made. The material over which the order was made included the following:
·video footage of Ms Garnett shopping in a supermarket. In lifting bags and larger groceries, she appears not to demonstrate any preference for her left hand or arm over her right. She can be seen lifting some apparently heavy bags and drink bottles with her right arm when the option of her left arm is available;
·video footage of her shopping in a second supermarket. She carries two bags with groceries in them, and her handbag, on her right arm for several minutes while she collects items to carry in the bags with her left arm. She appears to favour her right arm over her left arm to carry things in this footage;
·video footage of her in a car park transferring laden shopping bags from a shopping trolley to her car. The bags appear to be reasonably heavy. Ms Garnett uses both her right and her left arms is to carry the bags;
·video footage of her dragging an apparently empty household wheelie bin using her right hand when her left hand is free;
·video footage of her hosing with her right hand;
·video footage of what appears to be Ms Garnett working on a rural property. She pushes a wheelbarrow using both hands. The wheelbarrow on each occasion is filled to at least its rim, and sometimes heaped above this level. She makes eight journeys across the camera’s field of vision with the laden wheelbarrow. The contents vary in colour, from greyish brown (resembling soil) to black (resembling mulch). The video bears the date stamp Mar-14-2015;
·video footage of Ms Garnett walking from a car to a building on London Circuit in Canberra. She holds a large handbag and another bag of similar size with her right arm for the duration of this journey of approximately 150 metres. Her left arm carries nothing. She makes the return journey later that day (according to the date stamp), again with the bags carried with her right arm (although a portion of the journey is not captured in the footage); and
·still photographs apparently extracted from the above video footage.

In further examination, she agreed generally that she had undertaken the activities depicted in the surveillance material. However, she said that the only material in the wheelbarrow on 14 March 2015 was mulch, and not soil. She also explained that she generally takes steps to prepare for grocery shopping:
All right. If you were going to go shopping and you were to physically do it, is there anything that you would do prior to going?‑‑‑Well, I use the pain patches, as I said, pretty much every day, on my neck and my lower - shoulder blade, to minimise the pain that I experience, and take pain relief as I do pretty much every day.
And if you carry out shopping like that, how does - does that have any impact upon you afterwards?‑‑‑I go home and have a good rest after that, absolutely.
Further evidence was led following disclosure of the s 35 material regarding the extent of the impact on Ms Garnett of her condition. She told the Tribunal two girls were assisting her as volunteers caring for the horses at the farm:
MR PATTENDEN: Did anything motivate you to seek the help with caring for the horses?‑‑‑Yes, because of the pain that I experience sometimes impacts what I’m able to do, and it made sense to have someone to support me and helping me doing what I wanted to do.
An invoice for a new automatic motor vehicle was tendered. Ms Garnett explained that she could rest her right arm and drive with her left hand when she was not obliged to change gears. Comcare called for, and obtained, the production of invoices for home delivered groceries ordered by the Garnett household. These show some limited purchasing of prepared frozen vegetables but extensive purchases of vegetables requiring chopping and home preparation.
THE MEDICAL EVIDENCE
Ms Garnett has been examined by a number of specialists in relation to her accepted condition. Dr Geoffrey Speldewinde, a consultant in rehabilitation, pain and musculoskeletal medicine, wrote a report dated 20 March 2009 in which he said Ms Garnett is:
…struggling with what appears to be non-resolving (in her words) right C5 and/or C6 neuropathic radicular pain (commenced in the scapular area and migrated to the dorsoradial forearm into the thumb as an intense burning ache with sharp shooting components and spontaneous episodes) with mild radiculopathy (impaired point sensation over the right thumb, and bilaterally reduced but not absent biceps reflexes) in association with the right C5/6 neuroforaminal stenosis demonstrated on CT scan.
Mr Iain Kelman, consultant orthopaedic surgeon, examined her in July 2009, and on 11 August 2009 made the following diagnosis:
·Complex regional pain syndrome right upper limb – major.
·Complex regional pain syndrome left upper limb – minor.
This condition is of a pain syndrome which is mediated through the sympathetic nervous system without any demonstrable anatomical changes apart from those brought about by alteration in the sympathetic nervous system.
I consider that this is related to her employment with the Civil Aviation Safety Authority in that she was having to do long hours of keyboard work in stressful situations under poor office conditions and at a workstation that was not adequate.
Mr Kelman took an account from her of her level of incapacity:
With respect to her personal activities of daily living, she requires help with washing her hair. She has difficulty putting on her shoes. Her husband helps her with these activities. She states she is able to drive a car but this aggravates the pain in her upper limbs. It induces a headache. With respect to household chores, she is unable to perform these and has employed a cleaner.
She does not undertake any outside activities.
A scan undertaken on 10 March 2010 noted:
The whole body scan is essentially normal.
The SPECT CT images of the cervical spine show no significant abnormality.
Consultant rheumatologist, Dr Sumant Kevat, examined her in November 2010 and, on 29 November 2010, opined:
The physical examination reveals stiffness with some restriction of movement in her cervical spine and right upper limb joints. She was hyper-reactive to touch in the right upper limb but manifested no objective changes on this occasion of complex regional pain syndrome such as skin colour changes, dryness or atrophy.
Consultant neurologist Dr Colin Andrews, saw Ms Garnett and wrote a report dated 17 April 2014. He noted:
When I examined her I found some mild tenderness over the right lateral epicondyle and no particular tenderness in the fingers or thumb. There were no signs of reflex sympathetic dystrophy, so-called chronic regional pain syndrome.
I have looked at the recent medicolegal report from the rheumatologist and agree this soft tissue injury should have got better many years ago and I can’t understand why it is still a continuing issue.
Dr Speldewinde wrote to her GP on 27 May 2014, offering the following diagnoses:
·Right upper limb “C6” spinal neuralgia, neuropathic pain and/or significant central sensitisation.
·Chronic de Quervain’s tendinopathy.
·Flattened affect in the absence of symptoms of major depression, as evidenced on assessments four or five years ago.
·Long-term opiate dependency (codeine phosphate of more than four years’ duration).
He noted that he strongly advocated with her for reduction and cessation of opiate medications which she understood has had no impact on her overall pain levels nor overall function.
Three doctors gave live evidence during the hearing. Each doctor was shown the surveillance material referred to above.
A report dated 27 February 2015 of Dr Garth Eaton, an occupational physician, was tendered. In it he diagnosed:
Occupational overuse syndrome. Musculoligamentous strain.
Chronic De Quervain’s tendonitis and right wrist and forearm pain.
Probable C6 cervical nerve root irritation.
I found no clinical evidence to justify a definitive diagnosis of fibromyalgia syndrome.
A second report of Dr Eaton, dated 20 October 2016 and following a further examination of Ms Garnett on 30 September 2016, was tendered. In this report he commented on the video material:
Video surveillance reveals a person’s activities at a snapshot in time and does not give any indication of the person’s condition prior to the activity and after the activity and whether there is increased pain and swelling etc developing as a result. There is no indication from the DVD’s whether the person involved required pre or post activity analgesia.
Ms Garnett demonstrated in the various DVDs that she had totally normal functional capacity for many day-to-day activities including heavy physical activities. If this is a true representation of the situation all of the time then Ms Garnett’s functional capacity is not limited by her reported pain and dysfunction.
In the witness box Dr Eaton accepted suggestions that Ms Garnett’s condition could be diagnosed as a chronic regional pain syndrome. He was asked about the capacity of people with chronic pain to exercise gross motor skills and fine motor skills. He responded:
Yes, I’ve found that seeing people with musculoskeletal upper limb injuries, for example occupational overuse type injuries, many of them do make that point, that they can do gross – more heavy – heavy activities, but when they come to things like handwriting, mouse work with the computer, it cases them problems.
He was then asked to describe what he observed of Ms Garnett in the video material:
Yes, they were gross movements, heavier movements, substantial movements, not fine motor movements.
He later agreed that the use of a mouse could be consistent with aggravating her pain. He also agreed that she continues to require medical treatment for her condition.
Under cross-examination, Dr Eaton observed generally that heavy use of opiates to treat chronic pain syndrome is undesirable and that, in Ms Garnett’s case, he would prefer that her pain management was holistically and comprehensively approached.
A report of Assoc Prof David Champion, a rheumatologist, dated 10 March 2015 was tendered. The report diagnosed a chronic regional pain syndrome referable to her cervical spine, right upper scapular region and right distal forearm, wrist and hand particularly thumb. He also observed that she did not have the criteria for fibromyalgia syndrome. A further report of 18 September 2016, after he had viewed the video material, was also tendered. In relation to that material, he said I must acknowledge that Ms Garnett has questions to answer.
In his evidence before the tribunal, Prof Champion was asked for his reaction to the surveillance footage. He replied:
My first reaction was one of surprise … I frankly did not anticipate seeing her so involved in the activities depicted.
He added:
… the value of such surveillance is observing the behaviour of someone who says they cannot or do not do those particular tasks. In March 2015, Ms Garnett had informed me that she was doing her very best to perform normal activities, accepting the need for analgesia, accepting the increased pain the follows such activities.
Prof Champion also noted that the capacity to engage in certain activities, such as pushing a wheelbarrow, does not mean that she would be capable of undertaking repetitive computer-based activities. Overall, taking into account the video material, he opined that her account of the pain she experiences is feasible. She has an ongoing need for medical treatment, he said.
Under cross-examination, he agreed that the surveillance material does question the severity of the chronic regional pain disorder. When asked about her capacity for working longer hours, he expressed the opinion that
…with modification of her activities, in a more managerial role, a reduction of the alleged intensity of the horse, gardening and other activities, that she would be able to extend her hours.
He later added:
But she could theoretically work full time if there is minimal computer application.
Rheumatologist Dr Philip Vecchio examined Ms Garnett on 20 January 2014, and issued a report the following day. He gave this summary and assessment of her condition:
I have no doubt that Ms Garnett experiences ongoing pain of the fibromyalgia variety, related to her nuchal spine, fibromuscular apparatus of the upper chest, interscapular spine, periscapular muscles, anterior chest and forearms. I really empathise with her chronic discomfort and recognise how difficult it may be to cope with the presented symptoms.
There is absolutely no evidence of complex regional pain syndrome and the above is a complex of upper body pain that can only be summarised as fibromyalgia. Chronic pain syndromes have been diagnosed and it is also descriptive.
The alleged provocating incident, in July 2008, occurred 66 months ago and it is difficult to find articulate medical basis upon which to base ongoing pain.
Whilst I accept that Ms Garnett is very disabled with respect to her syndrome, linking in her Commonwealth employment years ago, despite the ongoing nature of the pain, defies medical explanation in my knowledge acquisition.
I realise that many colleagues have defined the organic nature of the syndrome, but I am unable to agree with any of the assertions described by Doctors Kevat, Kelman or Andrews. Additionally, I am of the opinion that chiropractor treatment is useless, and in fact, most medical treatments are of the most limited and temporary benefit, tend to reinforce the sickness model, and are prone to all sorts of suggestions with respect to sensitivity and muscular spasm.
He added:
As the problem is entirely symptomatic, it is extremely difficult to gauge whether the symptoms are real, conscious, unconscious, somatic or exaggerated. Therefore, I am unable to comment more than this. All I am able to state is that more than five years post-onset, there is no muscular wasting, which is the only indicator of disuse, and there is ongoing fibromuscular hypersensitivity; I cannot find any organic signs. The only manner in which this question may be answered is a protracted period of surveillance.
Dr Vecchio authored two supplementary reports, both dated 15 May 2015. In one he made the following observations:
As expressed in my 21 January 2014 report, I am unable to link any musculoskeletal condition to Ms Garnett’s employment or her inability to work. Whilst other medical practitioners may offer purported reasons why chronic pain may exist and be the cause of Ms Garnett’s alleged infirmity, I am unable to support any of the opinions provided by Doctors Champion and Eaton. My major offering is that the opinions are academic expressions of possibilities relating to a non-existent syndrome.
In my opinion, Ms Garnett does not suffer from a medical condition. She may have some aches and pains and elements of the fibromyalgia diagnosis but the latter is constitutional and irrelevant to employment. I am more than happy to withdraw the fibromyalgia diagnosis as my opinion is that this client does not express much in the way of pathology or a rational reason to have pain or work infirmity…
I am unable to link any occupational or verifiable diagnosis to Ms Garnett’s current expressed disability. In my opinion, her condition is entirely somatoform and unreasonably attributed to work on her part and by her supporting medical team…
I am unable to affirm any of the findings by Dr Eaton. I do not believe the diagnosis of occupational overuse syndrome applies. Certainly, musculoligamentous strain and chronic de Quervain’s tendinitis are not diagnoses I am able to support…
With due respect to my colleague Dr Champion, I have little understanding of the majority of the report which is expression of multitudes of theoretical data which attempts to explain, in my opinion, exaggerated expressions of pain and a link to employment which cannot exist. In my opinion, based on my common sense interpretation of the history provided by Ms Garnett and the examination on the one occasion of assessment, I conclude that Ms Garnett does not have a chronic pain syndrome and that any association between her work, theories expressed by Dr Champion, and his extended and learned dissertation, are purely coincidental, and not cause and effect…
In my opinion, there is no verifiable rationale or occupational aetiology to any of her symptoms. My opinion is that Ms Garnett’s musculoskeletal system is normal, capable of normal living and work and definitely not linked to any past exposure to employment-related demands which common sense would interpret as incapable of causing years of symptoms.
When he appeared before the Tribunal, Dr Vecchio stated that the video footage of Ms Garnett reinforced the views he had already expressed in his report of 20 January 2014 regarding her functionality. He conceded under cross-examination that her accepted condition causes her pain.
CONSIDERATION
Ms Garnett gave evidence that she continues to suffer the effects of her compensable condition in many aspects of her life. She said that she lived with the daily experience of pain from the condition. That pain prevented her from working greater hours in her part-time job at YWCA Canberra, notwithstanding that she had been offered additional hours of work. The pain also calls for regular and frequent use of medication.
Comcare submitted in turn that there were inconsistencies in Ms Garnett’s evidence such as to satisfy the Tribunal that her claims of a continuing effect of her compensable condition could not be believed. It submitted either that the condition had resolved entirely or, if it had not, that there was no identifiable compensable medical treatment which would benefit her and there was no incapacity to carry on employment at the level she enjoyed before her injury.
In resolving these competing positions, the Tribunal considered the question of Ms Garnett’s credibility. It was put bluntly by Comcare that she was not a witness of truth. In this respect it relied in particular on what it considered to be inconsistencies between what she had told Comcare, various doctors and the Tribunal about her condition, on the one hand, and the evidence of the surveillance material produced to the Tribunal on the other hand. Counsel for Ms Garnett submitted that there was no inconsistency between the evidence she gave before seeing the surveillance material and the things she was seen to be doing in that material. He also contended that the medical evidence is consistent with her ongoing report of pain.
Having carefully considered the evidence, we are not satisfied that Ms Garnett has been wholly truthful with respect to her condition. We discern an element of embellishment or exaggeration in what she said in documents submitted to Comcare and in evidence before the Tribunal regarding her level of disability.
In particular, we do not consider the level of incapacity to which Ms Garnett testified in the early part of the hearing is consistent with the evidence later received by the Tribunal. Ms Garnett told the Tribunal during examination-in-chief that the pain was a constant feature of her life, and that anything I do with my right hand… aggravates the injury. She said that the pain levels had remained consistent since 2008. She said that pain was brought on by the use of her hand or wrist when carrying or using things, apparently irrespective of weight (e.g. holding a pen):
…when I do physical activities, holding a kettle, washing up, hanging the washing out, any physical activity where I have to use my right hand where the wrist gets aggravated, where my pain started, yes, I still have pain in those areas.
Under cross-examination her description of her pain became more nuanced; she described workaround arrangements where she would continue to do activities notwithstanding the experience of pain:
I’m right handed so [I] do things with my right hand instinctively…
I’m just used to the pain, I just do it.
Nonetheless, the impression with which the Tribunal was left, prior to introduction of the surveillance material, was that activity of almost any kind involving her right hand or arm would induce debilitating pain either immediately or within a short time, and that Ms Garnett would take steps to avoid or minimise the use of that limb where it was convenient to do so.
We are not persuaded that the tendered video evidence sits comfortably with that impression. While shopping at the supermarket, for example, Ms Garnett appeared to make no effort to carry bags or lift moderately heavy objects with her left hand in preference to her right hand. At several points it could be seen that she made extended use of the right hand or arm to carry things which appeared to be of moderate weight. No evidence of discomfort – much less pain – could be discerned with this activity. This contrasts with the evidence that she requires help washing her hair and has difficulty putting on her shoes.
In similar vein, the repeated pushing of a fully laden wheelbarrow with both arms seen on the video footage strikes the Tribunal as inconsistent with evidence that she only carries her washing basket half-filled because of the pain. At the very least, Ms Garnett appears to have a higher tolerance of the pain she says that such activities incur, to such an extent that she is able to routinely carry out more activities, and for longer, than her evidence suggested.
Other inconsistencies were noted. She gave evidence of buying frozen vegetables instead of having to cut vegetables, to avoid pain. This was not supported by scrutiny of her online shopping invoices called for by Comcare, which show very limited frozen vegetable purchases but liberal purchases of fresh fruit and vegetables requiring preparation.
There is an alternative explanation for these inconsistences. It was summarised by Dr Eaton during cross-examination:
We have no way of knowing that a person was taking strong analgesia before the event and taking strong analgesia after it. How much pressure do they have on them to perform those activities in terms of necessity, time? You know, there can be a whole lot of reasons, and I don’t know whether Ms Garnett has explained those to the tribunal, but there may be a lot of reasons why a person even with problems, you know, will do things which we may look at and find even as a non-medical person strange and unusual that they would do that.

On balance, the Tribunal is not persuaded that the video material simply caught Ms Garnett on days when she was heavily medicated or was pushing through her pain to accomplish pressing tasks. The inconsistencies between what she had told Comcare, various doctors and the Tribunal about her condition, on the one hand, and the evidence of the surveillance material on the other, as well as her presentation in the witness box, suggests a measure of embellishment in her account. Prof Champion observed that Ms Garnett has questions to answer; on balance, we are not satisfied that those questions have been answered such as to displace the doubts about her credit generated by the video material.
Comcare submitted that the evidence leads to the conclusion that Ms Garnett has ceased to suffer from the effects of her compensable condition. Despite our doubts about the veracity of her evidence, The Tribunal is not convinced that the evidence rises to this level. Prof Champion and Dr Eaton gave evidence that her condition – which they described as a chronic regional pain syndrome – required continuing treatment. Dr Vecchio accepted that Ms Garnett has a chronic pain syndrome, though he asserted that her condition was somatoform. Although the evidence paints a somewhat blurred picture in this regard, we find on the balance of probabilities that treatment for pain relief is, to some extent, treatment in relation to her accepted condition of chronic pain syndrome and is reasonable to obtain in the circumstances.
In reaching this conclusion, however, the Tribunal came to divergent views about the evidence. Deputy President Humphries found the evidence in relation to whether Ms Garnett has ceased to suffer the effects of her compensable condition inconclusive; accordingly, he determines that the Tribunal should find in her favour in this respect: Comcare v Power [2015] FCA 1502 at [63]. Dr Hughson considered that the evidence demonstrated on the balance of probabilities that she had ceased to suffer the effects of her compensable condition. Pursuant to s 42(2) of the Administrative Appeals Tribunal Act 1975, the opinion of Deputy President Humphries, as the presiding member, prevails.
Although we find therefore that Ms Garnett has a continuing entitlement to compensation under s 16, this finding is subject to two important qualifications. The first is that it appears Ms Garnett is suffering the effects of other conditions which are not compensable. Dr Speldewinde diagnosed her in May 2014 with chronic de Quervain’s tendinopathy and long-term opiate dependency. It does not appear that either condition has been accepted under s 14 as being work-related and as such neither can be the basis for s 16 payments: Lees v Comcare[1999] FCA 753 at [49]. There may be other conditions. Comcare is entitled to refuse to pay for treatment unrelated to her accepted chronic pain syndrome. The second is that there was some evidence before the Tribunal that Ms Garnett’s use of opiates or opiate derivatives is at clinically-inappropriate levels. Comcare is entitled to refuse to reimburse the cost of medication which does not reflect medical best practice. Medication at these doses could not be considered reasonable …to obtain in the circumstances pursuant to s 16.
Turning to her entitlement to compensation under s 19, the Tribunal must determine whether Ms Garnett is incapacitated for work. Incapacity for work is defined in s 4(9) to mean an incapacity to engage in any work or an capacity to engage in work at the same level at which he or she was engaged… before the injury happened.
The evidence of the doctors called by Ms Garnett was that she had some capacity to engage in a return to full-time work. Prof Champion expressed the opinion that
…with modification of her activities, in a more managerial role, a reduction of the alleged intensity of the horse, gardening and other activities, that she would be able to extend her hours.
He added that she could theoretically work full time if there is minimal computer application. Dr Eaton thought she could work more hours if use of a computer was minimised. However, the capacity to work is largely a matter of what an injured worker reports that he or she can do. In this regard the Tribunal was struck by Dr Eaton’s comment in his report of 20 October 2016:
Ms Garnett demonstrated in the various DVDs that she had totally normal functional capacity for many day-to-day activities including heavy physical activities. If this is a true representation of the situation all of the time then Ms Garnett’s functional capacity is not limited by her reported pain and dysfunction.
This elicits the question: is the totally normal functional capacity exhibited in the videos to be regarded as representative of the situation all of the time or merely as atypical snapshots of her capacity only in certain, defined circumstances?
For the reasons given above, the Tribunal considers that the functionality exhibited in the videos is representative of her day-to-day capacity to carry out a range of normal activities. We are not persuaded that Ms Garnett has been candid about that level of capacity. In the early stages of her evidence she spoke of debilitating pain, and steps she took to favour her left hand or arm to avoid pain in her right hand or arm. This evidence – about pain when lifting a pen or kettle or when combing her hair using her right hand, for example – suggested a high degree of incapacity. In her later evidence, she described how she sometimes did these things with my right hand instinctively because I’m just used to the pain. She also spoke later of medication allowing her to do many things. But those later qualifications on her incapacity are not evident in what she told various doctors and Comcare about her degree of disability when she first sought workers compensation. She told doctors, for example, that she was unable to drive a car. These considerations, when taken together, lead the Tribunal ineluctably to the view that Ms Garnett has not been honest about the extent of her incapacity to do a number of things, including work.
We consider this conclusion to be consistent with the medical evidence. All the doctors examined by the Tribunal agreed that symptomatology is to some extent a matter of the extent to which a person reports disability or pain. Dr Eaton considered that Ms Garnett showed some structural pathology in her neck and thumb region based on the radiological reports and his clinical examination. He conceded however that there was not always a close correlation between pathology and reported symptoms. Prof Champion agreed in the witness box that the video evidence does raise questions about the reported severity of her diagnosed condition. Dr Vecchio, in his first report, recorded that I cannot find any organic signs of the reported pain. He regarded the video evidence as demonstrating normal functional and behaviour that’s not intruded by any disability, painful or otherwise.
The question we are facing is not, therefore, whether she enjoys a capacity to work at the same level at which he or she was engaged… before the injury. We do not consider, on the balance of probabilities, that she suffers any incapacity to work. Against that finding the question of whether she can undertake tasks involving gross motor skills but not those involving fine motor skills is irrelevant.
Similarly, we do not consider that the evidence demonstrates any reasonable requirement for household services.
Ms Garnett’s counsel submitted that, in a cease effects-type consideration, if the Tribunal is persuaded by the video evidence that she no longer suffers an incapacity to work, a decision to that effect should be operative from the date of the video evidence. The alternative view, to which we are attracted, is that Ms Garnett has never been incapacitated for work, or at least has not been so incapacitated for some time. In those circumstances, our decision will take effect from the date of the reviewable decision, that is, from 21 August 2014.
The Tribunal sets aside the reviewable decision of 21 August 2014 and instead substitutes the decision that Ms Garnett:
(a)is entitled to compensation under s 16 for the cost of medical treatment in relation to her accepted condition;
(b)is not entitled to compensation under ss 19 or 29 for that condition.

I certify that the preceding 78 (seventy-eight) paragraphs are a true copy of the reasons for the decision herein of Deputy President Gary Humphries and Dr Bernard Hughson, Member.

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Associate
Dated: 5 February 2018

Date(s) of hearing: 18 April 2016; 18-19 October 2016; and 12 April 2017

Date final submissions received: 18 April 2017

Counsel for the Applicant: Mr Karl Pattenden

Solicitors for the Applicant: RSK Legal Group

Counsel for the Respondent: Mr Matthew Gollan

Solicitors for the Respondent: Sparke Helmore

[2018] AATA 160

5 February 2018

Key Legal Topics

Areas of Law

Employment Law

Administrative Law

Legal Concepts

Causation

Remedies

Statutory Construction

Date(s) of hearing:	18 April 2016; 18-19 October 2016; and 12 April 2017
Date final submissions received:	18 April 2017
Counsel for the Applicant:	Mr Karl Pattenden
Solicitors for the Applicant:	RSK Legal Group
Counsel for the Respondent:	Mr Matthew Gollan
Solicitors for the Respondent:	Sparke Helmore