Howard and Comcare (Compensation)

[2017] AATA 2381

Howard and Comcare (Compensation) [2017] AATA 2381 (28 November 2017)

Division:GENERAL DIVISION

File number:           2015/4998

Kerry Howard

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Dr James Popple, Senior Member

Date:28 November 2017

Place:Canberra

Comcare’s decision on 17 June 2015 is affirmed.

........................................................................

James Popple, Senior Member

CATCHWORDS

COMPENSATION — Commonwealth employees — Applicant suffered injuries in motor vehicle accident while travelling to work — Comcare accepted liability for injuries — Applicant suffering pain since accident — 11 years later, Comcare denied continuing liability for injuries — effects of injuries resolved within a few months of accident — Applicant no longer suffers effects of injuries — medical treatment no longer obtained “in relation to” Applicant’s injuries — incapacity for work no longer “as a result of” Applicant’s injuries — Comcare no longer liable to pay compensation for medical expenses or incapacity — decision under review affirmed.

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988, ss 4(1), 5A, 6, 8, 9, 14, 16, 19

Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007, Schedule 1, items 6, 11, 12, 42, 44

REASONS FOR DECISION

Dr James Popple, Senior Member

28 November 2017

Summary

1. The applicant was injured in a motor vehicle accident on her way to work in 2006.  Comcare accepted liability for her injuries under the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act), and agreed to pay compensation for medical expenses and incapacity under s 16 and s 19 of the SRC Act. In 2015, Comcare decided that the applicant no longer suffered from the effects of her injuries, and determined that she was no longer entitled to compensation.

2. The applicant no longer suffers from the effects of the injuries she suffered in 2006. So, Comcare is not liable to pay her compensation under s 16 or s 19 of the SRC Act.

   Background

3. Ms Kerry Howard was employed by the Department of Health and Ageing.  On 30 March 2006, she was riding her motor scooter to work.  As she turned right, the scooter’s back wheel skidded out from under the scooter, and Ms Howard landed on her right side.  I will call this the 2006 accident.  In April 2006, she made a claim for workers’ compensation.  She identified her “[n]eck, right shoulder, right forearm, right hip, right calf, left hand (thumb)” and “right thumb” as having been injured in the 2006 accident.

4. On 8 May 2006, Comcare accepted liability, under s 14 of the SRC Act, for Ms Howard’s injuries, which it described as a neck sprain, and contusions to her “upper arm (left)”, “finger (left)”, and “hip and thigh (right)”. Comcare decided that it was liable to pay Ms Howard compensation for medical expenses (under s 16) and incapacity (under s 19). On 30 May 2006, Comcare advised Ms Howard that it had incorrectly described her accepted condition, which should have included contusions to her “upper arm (right)”, not her “upper arm (left)”.

5. Ms Howard worked for the Department of Health and Ageing until April 2012, when her position was made redundant.  She is currently self-employed.

6. On 19 February 2015, Comcare advised Ms Howard that it proposed to determine that compensation was no longer payable.  On 23 March 2015, Comcare decided that Ms Howard no longer suffered from the effects of the injuries she suffered in the 2006 accident (which I will call the 2006 injuries), and determined that she had no present entitlement to compensation for medical expenses under s 16 or for incapacity payments under s 19.

7. On 29 April 2015, Ms Howard requested a reconsideration of that determination.  On 17 June 2015, Comcare affirmed its determination.

8. On 24 September 2015, Ms Howard applied to the Tribunal, under s 64 of the SRC Act, for review of that decision.

   Decision under review

9. The decision under review is Comcare’s decision on 17 June 2015, affirming its determination that (from 23 March 2015) Ms Howard had no entitlement to compensation under s 16 or s 19 of the SRC Act.

   Issue

10. Under s 14 of the SRC Act, Comcare is liable to pay compensation in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment. Section 16 provides for Comcare to pay compensation in respect of medical treatment obtained “in relation to” an injury. Section 19 provides for Comcare to pay compensation to an employee who is incapacitated for work “as a result of” an injury.

11. At the time of the 2006 accident, s 4(1) of the SRC Act provided that an “injury” included “a physical … injury arising out of, or in the course of, the employee’s employment”, and s 6(1)(b)(ii) provided that an injury could be treated as having arisen out of, or in the course of, an employee’s employment if it was sustained while the employee was “travelling between his or her place of residence and place of work”. The definition of “injury” and s 6 were amended on 13 April 2007, so that an injury sustained while travelling between home and work is no longer an injury arising out of, or in the course of, employment for the purposes of s 14.[1] However, the definition of “injury”, and s 6 of the SRC Act, as they were at the time of the 2006 accident, continue to apply to the 2006 injuries.[2]

    [1] The definition of injury in s 4(1) was replaced with “injury has the meaning given by section 5A”: Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007 (the amending Act), Schedule 1, item 6. The new definition in s 5A (inserted by item 11) is relevantly identical to the definition previously in s 4(1). But s 6(1)(b) was replaced by paragraphs that do not refer to the employee travelling between their place of residence and place of work: item 12.

    [2] Schedule 1 to the amending Act provides that “The definition of injury in the [SRC Act], as amended by this Schedule”—see note 1 above—“applies in relation to a[n] … injury … that an employee sustains on or after the day after this Act receives the Royal Assent”: item 42.  And, “Section 6 of the [SRC Act], as amended by this Schedule, applies in relation to an injury sustained on or after the day after this Act receives the Royal Assent”: item 44.  The amending Act received Royal Assent on 12 April 2007—after the 2006 accident.

12. Comcare accepts that Ms Howard suffered injuries, for the purposes of s 14, from the 2006 accident. The issue in this review is whether Comcare is still liable to pay compensation to Ms Howard under s 16 or s 19. That depends on whether she continues to suffer the effects of the 2006 injuries. If she does, then:

    ·Comcare is liable to pay compensation in respect of her reasonable medical expenses; and

    ·(if she is incapacitated for work) Comcare is liable to pay compensation for that incapacity, the amount of which depends on:

    othe amount that she is able to earn in suitable employment;

    othe amount that she earns from her self-employment; and

    oher normal weekly earnings before the 2006 injuries.[3]

    If Ms Howard does not continue to suffer the effects of the 2006 injuries, then:

    ·any medical treatment she obtains is not obtained “in relation to” her injuries, so Comcare is not liable under s 16; and

    ·she is not incapacitated for work “as a result of” her injuries, so Comcare is not liable under s 19.

    [3] See SRC Act, ss 8, 9 and 19.

    Medical evidence

13. There is much evidence before me about Ms Howard’s current condition, and its relationship to the 2006 injuries.  That includes evidence from the following people, who did not give evidence at the hearing:

    ·Dr Sabina Obermeder, Ms Howard’s general practitioner (GP).  She saw Ms Howard on many occasions, issued a number of medical certificates, and wrote reports on 20 April and 25 May 2009, 1 March 2010, and 31 March and 1 May 2015.

    ·Dr William Coyle, an orthopaedic surgeon.  He saw her on 4 February 2008, and wrote a report that same day.

    ·Dr Colin Andrews, a consultant neurologist.  He saw her on 7 January 2014, and wrote a report the next day.

    ·Professor Paul Glare, the Chair of Pain Medicine at the University of Sydney.  He saw her on 25 January and 1 March 2017, and wrote reports on both dates.

    In addition, I heard evidence from the following medical witnesses:

    ·Dr Phillip Vecchio, a rheumatologist.  He saw Ms Howard on 15 December 2014, and wrote a report on 23 December 2014.

    ·Dr Leon Le Leu, an occupational physician.  He saw her on 16 February 2016, and wrote reports on 22 February 2016 and 2 April 2017.

    ·Dr Matthew Paul, a consultant occupational physician.  He saw her on 14 June 2016, and wrote reports on 24 June and 5 August 2016.

    ·Dr David Gorman, a consultant general physician, pain management specialist and medical oncologist.  He saw her on 15 August 2017, and wrote a report on 31 August 2017.

14. Ms Howard suffered a whiplash injury in a motor vehicle accident on or about 8 March 2002.  I will call this the 2002 accident.  On 14 December 2004, a consultant neurologist[4] reported that her symptoms were improving and that “serious pathology has been excluded”.

    [4]     Dr David McColl.

15. Ms Howard also gave evidence at the hearing.  She says that she had fully recovered from the 2002 accident before she had the 2006 accident.  She says that she initially required about one week off work after the 2006 accident, after which she was on a graduated return to work.  By 24 June 2006 (about 12 weeks after the 2006 accident) she had returned to full-time work, though she says that she could only do so because she was taking hourly 15-minute breaks from computer-based work; taking anti-inflammatories and analgesics; and having osteopathic, massage and acupuncture treatment.

16. She says that, since the 2006 accident, she has experienced varying levels of pain, primarily around her upper neck and shoulder blades.  She says that, although she experienced pain in the same areas, her “experience of the pain as a result of the injuries changed”.  She says that she has also experienced numbness in her arms and a finger, along with a hardening of the nape of her neck, her upper back and shoulder blade.

17. Ms Howard stopped receiving regular osteopathy, massage and acupuncture treatment after Comcare decided, in March 2015, that she had no present entitlement to compensation for medical expenses.  She occasionally paid for this treatment herself but she says that, after Comcare stopped paying, she had to “learn to manage [her] pain … without the support of regular passive treatments”.  She says that, without those regular treatments, “[t]he pain had become unsustainable by 2016”.

18. I accept Ms Howard as a witness of truth.  I find, on the balance of probabilities, that she was no longer suffering any symptoms from the 2002 accident when she had the 2006 accident, and that she has experienced varying levels of pain ever since, primarily in her upper neck and shoulder blades.  I also find that that pain causes her some level of incapacity.  The threshold question remains: is her current condition a result of the 2006 injuries?

    Differences of opinion

19. The parties (and the medical experts) have different opinions about whether Ms Howard continues to suffer the effects of the 2006 injuries.  Generally speaking, Dr Obermeder and Dr Gorman say that she does; Dr Vecchio and Dr Paul say that she does not; Dr Le Leu’s position is more complicated.[5]

    [5] See [33]–[34] below.

20. On 5 May 2006, just over five weeks after the 2006 accident, Ms Howard had a computed tomography (CT) scan of her lumbar spine.  The radiologist[6] reported:

    At L3/4, no abnormality.

    At L4/5, there is minimal facet joint osteoarthritis without neural compromise.  No evidence of disc herniation.

    At L5/S1, there is a minimal broad based disc bulge and minor facet joint osteoarthritis without neural compromise.  No other significant abnormality.

    [6]     Dr Meng Chung.

21. In February 2008, Dr Coyle, an orthopaedic surgeon, diagnosed Ms Howard as suffering “a contusion of right shoulder rotator cuff and musculoligamentous or soft tissue strain of neck”.  He reported:

    Her right shoulder symptoms and signs are consistent with a rotator cuff injury and can be related to a direct impact on the point of her shoulder in the fall and the neck symptoms may merely be part of her right shoulder syndrome or possibly related to a musculoligamentous strain in the fall.

    In his view, her condition was related to the 2006 accident.  However, he said:

    I think it is unlikely that Ms Howard has any permanent effect or permanent damage as a result of her accident, although her symptoms persist.

    I believe that her soft tissue injuries will gradually resolve and become symptom-free.

22. In May 2009, Dr Obermeder, Ms Howard’s GP, reported that she believed that Ms Howard’s “ongoing neck and right upper arm problems are still part of the original injury”, adding that “[t]here has been no subsequent injury”.

23. In March 2010, Dr Obermeder reported that “Ms Howard has improved to a point that barring any unexpected exacerbations and continued regular maintenance therapy she is as good as she is going to get”.

24. On 7 January 2014, Ms Howard had nerve conduction studies.  The next day, Dr Andrews, a consultant neurologist, reported that those studies “revealed normal motor and sensory conduction in her median and ulnar nerves”.  He said that a detailed neurological examination of Ms Howard had proved to be “quite normal”.

25. In March 2015, Dr Obermeder reported:[7]

    I believe [Ms Howard] to be suffering from Regional Pain Syndrome (RPS).  This is an amplified musculoskeletal pain syndrome.  It often worsens over time.  The cause of RPS is unknown.  Precipitating factors include injury and surgery, although there are documented cases where no injury had occurred at the original site.  The symptoms of RPS usually initially manifest near the site of a typically minor injury.  The most common symptoms are pain sensations, including burning, throbbing and pins and needles.

    [7]     Dr Obermeder’s report is undated, but other documents before me suggest that it was written on 31 March 2015.

26. In January 2017, Professor Glare reported that Ms Howard had “chronic neck and upper extremity pain more than 10 years after a motor bike accident” and noted that “[i]t has been incompletely investigated regarding the cause”.

27. On 20 February 2017, Ms Howard had a magnetic resonance imaging (MRI) scan.  In March 2017, Professor Glare reported that that scan:

    … shows some osteophyte formation at C6/C7 with possible impingement on the right C7 nerve route.  The remaining foramina were reasonably well preserved.  There was a mild canal stenosis at C4/5.  There were also mild degenerative changes at T11/T12, these changes were new compared to the MRI from January 2014.  There was no evidence of any radiological abnormality of her right brachial plexus on last month’s scan.

    Professor Glare reported that Ms Howard was still complaining of pain that was “related to stress and also her work ergonomics, which are unchangeable”.

28. In August 2017, Dr Gorman diagnosed Ms Howard as suffering “bilateral cervical spinal and bilateral shoulder girdle pain which is widespread and has been present particularly since the motorcycle accident in 2006”.  He added that “[i]t has been associated with some bilateral upper limb symptoms which may have been associated with the nerve root compression of the C6 and C7 levels”.  At the hearing Dr Gorman confirmed the view he expressed in his report, that Ms Howard’s current condition is “connected with the events of 2006”.  He agreed with Counsel for Ms Howard that “there is nothing unusual about patients displaying ongoing pain even though there [is] no organic pathology to support that”.

29. At the hearing, Dr Gorman agreed with Counsel for Ms Howard that, if Ms Howard was no longer suffering pain from the 2002 accident when she had the 2006 accident (as I have already found),[8] then it is likely that whatever had been causing that pain had resolved by 2006.  He came to this view on the basis that the 2002 accident had caused soft tissue injuries, and that there was no evidence that any serious pathology had arisen out of the 2002 accident.  Dr Gorman also agreed that, on the basis that the effects of Ms Howard’s injuries had continued from the day of the 2006 accident until now, it was likely that those effects had arisen from the 2006 accident and not the 2002 accident.

    [8] See [18] above.

30. However, Dr Gorman’s evidence raised some doubts about whether the effects of Ms Howard’s injuries had continued from the day of the 2006 accident until now.  Dr Gorman saw Ms Howard almost 2½ years after she had stopped receiving regular osteopathy, massage and acupuncture treatment.[9]  He noted, in his report, that her range of movement when he saw her in August 2017 was better than it was when she had seen Dr Le Leu in February 2016.[10]  At the hearing, Dr Gorman explained that her range of movement in August 2017 was what he would expect to see in “a normal person”.  And he agreed with Counsel for Comcare that, if the regular treatment had been “maintaining her”, he would have expected a reduction in her range of movement between February 2016 and August 2017.

    [9] See [17] above. Comcare decided that Ms Howard had no present entitlement to compensation for medical expenses from 23 March 2015. Dr Gorman saw Ms Howard on 15 August 2017. Dr Gorman’s report notes that Comcare had stopped paying for this treatment “approximately 18 months ago”. In fact, Comcare had stopped paying almost 2½ years before he saw her. I do not think anything turns on this error of arithmetic.

    [10]    Dr Le Leu saw Ms Howard almost exactly 18 months before Dr Gorman saw her.  This might be the source of the arithmetical error referred to in note 9 above.

31. In December 2014, Dr Vecchio, a rheumatologist, reported that, in his view, Ms Howard’s condition is “medically unexplainable”:

    It is very difficult to medically explain, eight and a half years post injury, that the pains continue to be intrusive, and which continue to restrict activities of daily living and work application and, even more, require enormous numbers of unjustified and passive treatments.

    …

    I do not believe that there is any ongoing organic issue and there is no justified diagnosis.  There are pains in the neck, right periscapular and shoulder regions and right forearm.  I am unable to formulate a specific diagnosis that may be applied eight years post contusion to these regions.

    …

    I accept that the injury would have caused transient soft tissue pain, perhaps lasting a few weeks.  I am unable to explain why the pain continues eight years on.  …  [T]here is no likely reason why the original injury should be associated with ongoing pain.

    He confirmed this view at the hearing, adding that he “wasn’t able to explain the problem from a pathological perspective to verify why the pain should be so prolonged”.  He said that soft tissue injuries, like those that Ms Howard suffered in the 2006 accident, should resolve within six to 12 weeks—at most, six months.  At the hearing, Dr Vecchio was asked, if Ms Howard had the same symptoms after such a period as she had had immediately after the 2006 accident, did that mean that an intervening event must have caused her identical pain.  He answered:

    No, I wouldn’t be speculating another event, I would be concerned as to why the pain was persistent and make an association between the original inciting noxious stimulus and the persistence of the pain.

    … I’m saying that the pain from a soft tissue injury of the mechanism described should have resolved.  Pain that perpetuates and continues months, years or decades … [is] not explained by the original accident.  I’m not speculating another cause, I’m just saying that it is not reasonable to link all the symptoms to the accident that occurred such a long time ago in the absence of severe or significant longstanding trauma that resulted in abnormal pathology.

    He did, however, say that Ms Howard’s continuing symptoms are:

    … unlikely to be related to the accident and [it is] more probable that there was an alternative cause of which there are various aspects of the human psyche that could be perpetuating the pain or causing the pain.

    That, he said, could go on indefinitely.

1. On 24 June 2016, Dr Paul, a consultant occupational physician, reported that, in his view, Ms Howard no longer suffers from the effects of the 2006 injuries.  At the hearing, he explained that he does not think that there is anything “objective” stopping Ms Howard from working, but that “the concept around coping and managing with pain … needs to be addressed”.  He reported that Ms Howard:

   … has the physical capacity for full-time work, and it appears that her pain becomes worse when she faces increased stress.  This may be due to a secondary psychological condition and the effects of her chronic pain condition.

   He said, Ms Howard “appears to have gone on to develop a chronic pain syndrome secondary to the soft tissue injuries” she suffered in the 2006 accident.  The “sprains and contusions” she suffered in the 2006 accident, he said, “would likely have resolved within three months”.

2. On 22 February 2016, Dr Le Leu, an occupational physician, reported:

   Based on the history [Ms Howard] gives, but in the absence of medical imaging closer to the time of the accident, my opinion is that she probably exacerbated pre-existing degeneration of the cervical spine and also suffered a whiplash injury.  I note that she had a previous whiplash injury some years before.

   There is also evidence of bilateral shoulder impingement syndrome …

   She has no ongoing symptoms in the right hip or calf.  I understood her thumb problem was in the left thumb; that is confirmed by Dr Coyle’s report[11] and there is no ongoing problem there.

   So we are left with neck, right shoulder, right arm (and left arm).

   It is more probable than not that her ongoing symptoms in the neck and right shoulder/upper arm—excluding impingement—result from the subject accident since they have reportedly been continuous since.  The right and left arm symptoms are secondary to the neck.

   There is no clear evidence that her left or right shoulder impingement conditions result from the subject accident.

   At the hearing he initially confirmed that, in his view, Ms Howard continues to suffer the effects of the 2006 injuries, because “her symptoms have continued in the same pattern, and more or less the same level ever since”.

   [11]    As Dr Le Leu pointed out, Dr Coyle’s report of 4 February 2008 (see [21] above) was “closest to the subject accident”.

3. However, Dr Le Leu resiled somewhat from that position during the hearing.  He was taken to that part of his report where he had said:

   After an unknown period, which may have been up to 7 years post-accident, she began to have a lot of trouble with the right forearm in the form of tingling and pins and needles.  At that stage she had pins and needles in both arms; it seems to have started from the neck.

   He explained that this was based on what Ms Howard had told him, and confirmed that it was his understanding that she had not complained of these symptoms until years after the 2006 accident.  He agreed with Counsel for Comcare that his report was incorrect where it said that, “based on her history, she has been having symptoms in the neck, right shoulder and the arms for the ten years since the subject accident”.  The following exchange then took place between Counsel for Comcare and Dr Le Leu:

   Counsel:    Is it a fair—with the benefit of having that discussion, is this a fair conclusion, that based on the history of the symptoms in her neck, that you have got—that you formed the view that her neck problems probably had some relationship back to the incident in 2006?

   Dr Le Leu:    Yes.

   Counsel:    And that her right shoulder problem, other than that which delineated with the impingement syndrome or whatever, may also have some relationship to the incident in 2006?

   Dr Le Leu:    Yes.  It would be hard to tell just how much is attributable, yes.

   Counsel:    Yes, but the problems that she has bilaterally with the impingement, and areas below her upper arm, and down into her hands, are something quite separate?

   Dr Le Leu:    Yes.  Well, you can get numbness and tingling and shoulder problems, not necessarily with [indistinct].  Usually it comes from the neck.  So—

   Counsel:    In those circumstances, it’s usually within a particular dermatomal distribution that’s relevant to a ruptured disk or an impingement on the nerve within the neck.  Is that right?

   Dr Le Leu:    That’s right, yes.

   Counsel:    Yes, and there’s no evidence of that in this case, is there?

   Dr Le Leu:    I’m just looking at the CT cervical spine, however, a disk herniation of C5/6 that there was no evidence of any nerve root impingement, I don’t think.

   Counsel:    No, and an MRI that was later undertaken in 2017, talks about there being some osteophytes around the C6/7, but no mention of the C5/6.  Is it reasonable to assume that if there was anything that was sinister, that it reabsorbed, and it’s not the source of any problem that she might be experiencing in the neck or arm now?

   Dr Le Leu:    Do you mean that anything resulting from the accident had reabsorbed?

   Counsel:    Well, if you were to attribute—which I don’t understand you to be doing so, but if you were to attribute any of the symptoms that she has to the C5/6 radiology observations, that given the more recent radiology, that it’s more probable than not that if there was a disk herniation or a bulge that had been reabsorbed between the period of time of those two investigations?

   Dr Le Leu:    Well, there was no evidence of ongoing radiculopathy.  No evidence of ongoing nerve root irritation.

   Counsel:    Yes.  So the example that we discussed about you can have referred problems into your arms and your lower arms and your hands, that comes from the neck, that’s not this case, is it?

   Dr Le Leu:    Well, no, it doesn’t seem to be.

   Counsel:    No.

   Dr Le Leu:    There isn’t any clear dermatomal pain which you can relate back to the nerve root compression.

   Counsel:    That’s right.  And so the problems that she’s having in her lower right arm, hand, her left shoulder, and arms and hands, and the problem in her right shoulder, being impingement, is all something quite separate to anything that may have happened in March 2006, isn’t it?

   Dr Le Leu:    Well, it’s not easy to relate to 2006.

   Counsel:    You certainly couldn’t do it on the balance of probabilities, could you?

   Dr Le Leu:    I don’t think so.

   Dr Le Leu later noted that he had made a mistake in his report: that he should have reported that Ms Howard’s right and left arm symptoms are not secondary to the neck.[12]

   [12] See [33] above.

   Findings

4. I must now make further findings of fact,[13] having regard to this medical evidence—some of which is conflicting.

   [13] My earlier findings are at [18] above.

5. I give only little weight to the evidence of Dr Obermeder.  She was Ms Howard’s GP, and saw her on many occasions over several years.  But she would appear to have no specific expertise.  I put more weight on the evidence of Dr Vecchio and Dr Paul than on the evidence of Dr Gorman and Dr Le Leu:

   ·Dr Gorman says that it is likely that Ms Howard continues to suffer the effects of the 2006 injuries.  But, his view was based on the effects of those injuries having continued substantially unchanged since the 2006 accident.  At the hearing, he explained that he had expected that there would have been a reduction in Ms Howard’s range of movement in the 18 months before he saw her (because she had stopped receiving regular osteopathy, massage and acupuncture treatment), yet there was an increase in her range of movement.[14]  This is relevant to the question of the efficacy of that treatment.[15]  But it also means that there must have been some change in Ms Howard’s condition over that period—that the effects of the 2006 injuries did not continue unchanged.

   ·Dr Le Leu also says that it is likely that Ms Howard continues to suffer the effects of the 2006 injuries.  His view was also based on the effects of those injuries having continued substantially unchanged since the 2006 accident.  And, although he did not resile completely from that view, he did concede at the hearing that some of Ms Howard’s continuing symptoms could not be attributed to the 2006 accident.[16]  This, too, means that the effects of the 2006 injuries did not continue unchanged.

   ·Ms Howard conceded, at the hearing, that her experience of the pain changed during the period since the 2006 accident,[17] though she maintains that “[t]he injury itself and the areas that [she] experienced that pain didn’t really change”.

   [14] See [30] above.

   [15] However, see [40] below.

   [16] See [34] above.

   [17] See [16] above.

6. Having regard to the medical evidence, I make the following findings, on the balance of probabilities.  Ms Howard suffered soft tissue injuries in the 2006 accident.  The effects of those injuries resolved within a few months.  She developed a chronic pain syndrome secondary to the injuries she suffered in the 2006 accident.

7. In making these findings, I note the following:

   ·Dr Vecchio says that soft tissue injuries, like those that Ms Howard suffered in the 2006 accident, would have resolved within six months; Dr Paul says they would have resolved within three months.

   ·Dr Coyle (who saw Ms Howard almost two years after the 2006 accident—by which time, I have found, the 2006 injuries had resolved) thought her condition was attributable to the 2006 accident, but thought it unlikely that the 2006 accident would have any permanent effects, and expected that her injuries would resolve.

   ·None of the MRI or CT scans, or nerve conduction studies, has revealed any pathology attributable to the 2006 accident that could explain her current condition.

   ·None of the medical experts suggested a mechanism by which the 2006 injuries could continue to cause Ms Howard’s current condition, although Dr Gorman says that people can display ongoing pain even though there is no organic pathology to explain it.[18]

   ·I have not made any finding about an intervening cause of Ms Howard’s current condition—something that might have happened since the 2006 accident to cause similar symptoms.[19]  I do not need to make such a finding, especially given that I have not found that the effects of the 2006 injuries continued substantially unchanged.

   ·I have not made any finding that Ms Howard suffers from a psychological condition, noting that none of the medical experts has relevant expertise.[20]

   [18] See [28] above. Dr Obermeder said that Ms Howard is suffering from regional pain syndrome, whose cause—Dr Obermeder explained—is unknown: see [25] above.

   [19] See [31] above.

   [20] See [31] and [32] above.

8. It follows from these findings that Ms Howard does not continue to suffer the effects of her 2006 injuries, and ceased to suffer those effects no later than 23 March 2015.

   Other questions

9. Because of my conclusion that Ms Howard does not continue to suffer the effects of her 2006 injuries, I do not need to consider the other questions that arise in this review: what medical treatment is it reasonable for Ms Howard to obtain; whether she is incapacitated for work; what amount she is able to earn in suitable employment; what amount she earns from her self-employment; and her normal weekly earnings before the 2006 injuries.

   Conclusion

10. As at 23 March 2015, Ms Howard no longer suffered from the effects of the injuries she suffered on 30 March 2006. Any medical treatment obtained after 23 March 2015 is not obtained “in relation to” her injuries, so Comcare is not liable to pay compensation in respect of her medical expenses under s 16 of the SRC Act. And, if she is incapacitated for work, she is not incapacitated for work “as a result of” her injuries, so Comcare is not liable to pay compensation for that incapacity under s 19 of the SRC Act.

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

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Associate

Dated: 28 November 2017

Dates of hearing:	10 July and 28–29 September 2017
Counsel for the Applicant:	Mr John Masters
Solicitors for the Applicant:	Canberra Legal Group
Counsel for the Respondent:	Mr Matthew Gollan
Solicitor for the Respondent:	Australian Government Solicitor