Ivill and Comcare (Compensation)
[2020] AATA 36
•16 January 2020
Ivill and Comcare (Compensation) [2020] AATA 36 (16 January 2020)
Division:GENERAL DIVISION
File Number(s): 2017/2620
2017/2645
2017/6376
2017/7229
2018/1160
2018/1161
Re:Bronia Ivill
APPLICANT
AndComcare
RESPONDENT
DECISION
Tribunal:Senior Member D O'Donovan
Date:16 January 2020
Place:Canberra
The Administrative Appeals Tribunal (Tribunal) affirms the reviewable decision in Tribunal Application 2017/6376 refusing the applicant compensation for permanent impairment in respect of her left knee. The applicant has no entitlement as to costs.
The Tribunal affirms the reviewable decision in Tribunal Application 2017/7229 refusing the applicant compensation for permanent impairment in respect of any impairment arising from the 2001 Injury including any psychological impairment. The applicant has no entitlement as to costs.
The Tribunal affirms the reviewable decision in Tribunal Application 2018/1160 and 2018/1161 in so far as those decisions determine that Comcare is not liable to pay compensation under s 14 of the Act in respect of Chronic Pain Syndrome. The Tribunal otherwise sets aside the reviewable decisions and, in substitution, determines that Comcare is liable to pay compensation under s 14 of the Act in respect of the applicant’s adjustment disorder with depressed mood. Comcare is to pay the applicant’s reasonable party/party costs as agreed or taxed.
The Tribunal sets aside the reviewable decision in Tribunal Application 2017/2620 and remits the matter to Comcare for reconsideration on the basis that Comcare is liable to pay compensation under ss 16 and 20 of the Act in respect of any incapacity or need for medical treatment which arises from the applicant’s injuries to her hip, thigh and lower back suffered in the incident of April 2001 (the effects of which are ongoing). Comcare is to pay the applicant’s reasonable party/party costs as agreed or taxed.
The Tribunal sets aside the reviewable decision in Tribunal Application 2017/2645 and remits the matter to Comcare for reconsideration on the basis that Comcare is liable to pay compensation under ss 16 and 20 in respect of any incapacity or need for medical treatment which arises the applicant’s knee injury suffered in the incident of 16 December 2008 (the effects of which are ongoing). Comcare is to pay the applicant’s reasonable party/party costs as agreed or taxed.
........................................................................
Senior Member D O'Donovan
WORKERS COMPENSATION –discrete physical injury in 2001 - accepted condition of aggravation of sacro-iliitis not elsewhere classified, sprain of other specified sites of hip and thigh and displacement of intervertebral disc – second injury to knee sustained in 2008 as a result of weakness in left leg occasioned by earlier injury – whether chronic pain is a symptom of physical injuries or a secondary condition – chronic pain syndrome– adjustment disorder with depressed mood – whether the applicant’s second physical condition arose as a result of first accepted condition - whether the applicant’s conditions result in permanent impairment – nature of whole person impairment considered
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 14, 16, 19, 20, 24, 27, 67
Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419
Canute v Comcare (2006) 226 CLR 535
Howard v Comcare [2017] AATA 2381
Howard v Comcare [2019] FCA 1031
Lees v Comcare and Another (1999) 56 ALD 84.
Singleton v Comcare [2019] FCA 2104Alan Robertson, ‘Affidavit Evidence’ (Speech, College of Law 2014 Judges’ Series, 26 February 2014) <
Comcare, Guide to the Assessment of the Degree of Permanent Impairment (Edition 2.1)
REASONS FOR DECISION
Senior Member D O'Donovan
16 January 2020
INTRODUCTION
The applicant was injured on 19 April 2001 when a desk collapsed at work (2001 Injury). Her initial injuries were serious enough that a decision was made to take her to hospital. She took two to three weeks off work before returning to the workplace.
For more than 15 years Comcare largely accepted that the applicant continued to suffer from symptoms arising from this accident and that it was liable to compensate her in relation to its consequences.
On 16 December 2008, the applicant suffered a separate injury to her left knee. The injury occurred when the applicant was riding her bike outside of work. Her left foot came off the pedal, her left foot clipped the ground and she subsequently fell. The accident resulted in a knee injury including a tear of her anterior cruciate ligament (ACL) (2008 Injury).
In respect of the 2008 Injury the applicant initially claimed compensation on the basis that the accident occurred as part of a rehabilitation program. Liability was ultimately accepted by Comcare on the basis that the applicant’s 2001 Injury caused weakness in her left leg which resulted in the 2008 Injury.
The applicant’s condition fluctuated over the following years. She continued to work until 6 August 2012 at which point she could no longer cope with her employment. Two years later she retired on invalidity grounds. In February 2017, Comcare made decisions ceasing liability in relation to both injuries. This prompted further claims from the applicant in relation to different but related conditions and for permanent impairment payments in respect of her injuries. In total, there are six reviewable decisions which are the subject of these proceedings.
Four decisions relate to whether Comcare has an ongoing liability to pay compensation. Two decisions relate to permanent impairment.
In broad terms Comcare now contends that the effects of the 2001 Injury were transient and had resolved by mid-2002 and so the applicant has no entitlement to any ongoing compensation. For the reasons explained below, I reject that contention. The applicant has a continuous history of symptoms of pain and disability which originate from the 2001 Injury. Further, I am satisfied that the applicant experienced weakness in her left leg and this led (as Comcare previously accepted) to her 2008 Injury. I am also satisfied that the applicant has suffered a depressive illness significantly contributed to by the pain and disability caused by the physical injuries. These injuries in combination are responsible for the applicant’s incapacity and give rise to a need for some medical treatment. However, I am not satisfied that the applicant has any compensable level of permanent impairment. For completeness, I have rejected the applicant’s claim for compensation in relation to a chronic pain syndrome on the basis that the chronic pain from which she suffers is a symptom of her physical injuries rather than a secondary condition which should be assessed separately.
To explain how I reached these conclusions, I set out the relevant history below. These findings are largely based on the documentary evidence available to me. There is a significant factual dispute about whether the applicant continued to complain of physical symptoms throughout 2003 and in the period 2005-2007 and there is a dispute about whether the reporting of symptoms is consistent enough to justify a link back to the 2001 Injury. When dealing with controversial questions of this nature I identify the evidence on which my findings are based.
HISTORY OF THE CLAIMS
On 18 April 2001, the applicant was employed at the Melbourne Airport Terminal by the Australian Quarantine and Inspection Service (AQIS) as a Senior Dog Handler.
She suffered an injury when a desk, at which she was working, collapsed. She held up the desk for a while before it collapsed and it was this which caused her injury.[1] The applicant’s recounting of the severity of the accident has increased over the 18 years since the accident occurred and I am satisfied that events which she has recounted more recently, which include a serious fall to the ground and being pinned under the desk, did not occur. However, for the purposes of this decision, it is important to note that it is not in dispute that the event was a serious one which resulted in injuries prompting the applicant’s work colleagues to take her to a nearby hospital. To the extent that she overstated what occurred in evidence to the Tribunal I am satisfied that she was doing her best to remember what took place but that the contemporaneous documents provide a much more accurate account of what occurred.
[1] Section 37 Tribunal Documents (T) T4.
The applicant was off work for an initial period of 2 weeks and reported to her physiotherapist acute back pain and difficulty with all leg movements. The applicant’s initial complaints were focussed more on her right side than her left.
Her physiotherapist gave an assessment in the following terms:
Lumbar muscular strain, R quadriceps/groin strain? Some R leg pain referred from back.[2]
[2] T5, folio 9.
The applicant submitted a compensation claim to Comcare on 30 May 2001 describing the injury as ‘torn groin muscel (sic), twisted knee, sore back and right brest (sic)’.[3] She identified her right leg and lower back as the part of her body which was injured.
[3] T7, folio 13.
On 18 June 2001, Comcare accepted liability for a limited period.[4] This claim was given a claim number ending in 05.
[4] T8, folio 18.
By August 2001 the applicant was continuing to report symptoms which included symptoms affecting her left leg. For example, on 8 August 2001 the applicant attended upon Dr Rod Guy. The history taken by Dr Guy refers to the 2001 Injury and describes the following symptoms:
Started with groin & knee pain, then became back pain, ongoing, with severe pain. Has had physio., but nothing helps…Gets crampy numbness of both lower legs at times.[5]
(emphasis added)
[5] Exhibit R1, 2.
On 6 September 2001, the applicant made a claim for compensation in relation to workplace stress.[6] This claim was given a claim number ending in 06.
[6] T9.
On 13 September 2001, the applicant attended Dr Steve Jensen. He noted that since the date of the accident, the applicant suffered significant back pain.[7]
[7] Exhibit R1, 4.
On 11 October 2001, Dr Jensen examined scans and noted ‘degenerative change in her sacroiliac joints’.[8] He also noted that:
the most provocative clinical signs for her particular pain still continue to relate to the sacroiliac joints. The left is much worse than the right.
(emphasis added)
[8] Ibid, 7.
On 3 December 2001, the applicant had a joint injection into her left sacroiliac joint which provided her with some relief.[9]
[9] Ibid, 8.
In December 2001, the applicant moved to Brisbane.
From early February 2002, the applicant continued to submit medical certificates referring to a lower back injury, and treatment of a back injury continued uninterrupted through the first half of 2002.[10]
[10] T199.
A bone scan was performed on 15 May 2002 which revealed inflammation of the sacroiliac joints.[11]
[11] Exhibit R1, 11.
By July 2002, she was reporting disabling lower back pain and was working only every second day on restricted duties.[12]
[12] T16, folio 37.
Doctors were, however, clearly concerned about the applicant’s physical symptoms being tied to her emotional state which was affected by workplace conflict.
In Dr Harding’s report of 9 August 2002, he recorded the history as follows:
Ms Ivill came to see me on 5 March 2002. She was sent to me by a colleague Dr Steven Jensen in Melbotrne [sic]. Mrs Ivill has bben [sic] attended on by Dr Jensen for treatment of a work-related injury and she had moved to Queensland before resolution of the injury. Ms Ivill told me that she was suffering from pain in her right “hip and buttock” area. The pain had come on after she had had a desk collapse on her at work and this had forced her back into a wall…Dr Jensen felt the pain was coming from her sacro-iliac joint and in December of 2001 had performed an anaesthetic block on the right joint. This had given her some relief though not straight away.[13]
(emphasis added)
[13] T18, folio 39.
The reference to the right joint injection is incorrect.[14] The injection was performed on the left.
[14] See Exhibit R1, 4.
Dr Harding diagnosed the applicant as:
suffering from an exacerbation of sacro-iliitis as a result of the fall, and from discogenic pain as a result of the fall. The sacro-iliitis was evidenced by the appearance of right-sided sacro-iliac joint area pain after the accident (and not before) which was relieved by a block of the sacro-iliac joint. A bone scan later revealed the presence of “increased uptake” consistent with sacro-iliitis.[15]
[15] T18, folio 39 - 40.
The reference here to right sided sacroiliitis also appears to be an error based on the incorrect belief that the injection was on the right side. In addition, Dr Harding noted that the applicant presented with a depressed mood suffering work related stress. She had returned to full duties on 5 August 2002. He prescribed Feldene and noted that her prognosis was good and her pain levels settled to a manageable level.[16]
[16] Ibid, folio 41.
On 27 August 2002, the applicant attended Dr Richard Kahler, neurosurgeon. He obtained a medical history consistent with the onset and maintenance of symptoms from 19 April 2001 and diagnosed the applicant as suffering from degenerative pain of a mechanical nature.[17] In this consultation the applicant identified her symptoms as being much worse on the left than the right.
[17] T19, folio 42.
On 10 September 2002, Comcare determined that the condition in respect of which it accepted liability was ‘aggravation of sacro-iliitis, displacement of intervertebral disc – lumbar and sprain of other specified sites of hip & thigh (Right)’.[18]
[18] T20, folio 45.
On 15 October 2002, psychiatrist, Dr New, recommended that the applicant attend the Pain Logic program to assist with her pain management.[19] There is no suggestion at this point in any of the medical records that the applicant’s pain, which developed after the 19 April 2001 incident, had resolved.
[19] T23, folio 49.
On 28 November 2002, neurosurgeon, Dr Kahler, prepared a report for Comcare. Dr Kahler diagnosed the applicant as suffering from lumbar degenerative back pain most likely secondary to facet joint arthritis.[20] He noted the applicant had symptoms consistent with sacroiliac joint dysfunction but believed those symptoms had resolved. Dr Kahler identified the incident of 19 April 2001 as the precipitating event and noted that most of her symptoms settled but her low back pain continued. Dr Kahler described the applicant’s continued and extensive use of medication and ongoing low back pain and symptoms. He stated that he ‘would expect that the effects of the condition should cease well within 12 months of the injury’.[21]
[20] T28, folio 58.
[21] T28, folio 59.
The report, as expressed, is confusing to say the least. On the one hand it describes symptoms and recommends treatments, and attributes those symptoms to the incident of 19 April 2001. On the other hand, the report states that the ‘effects of the condition should cease well within 12 months of the injury’. Given that the report was written more than 18 months after the injury, this comment is difficult to reconcile with the balance of the report.
On 24 December 2002, psychiatrist, Dr New prepared a report for Comcare. He diagnosed the applicant as suffering from an adjustment disorder.[22] He noted that the 2001 Injury caused damage to the applicant’s sacro-iliac joint with incomplete healing and it:
continues to impose some limitations on her movements, continuing pain, which requires her attention to avoid aggravation and to be able to persevere.[23]
[22] T29, folio 61.
[23] Ibid, folio 62-63.
Dr New described the applicant’s psychological symptoms as including:
sleep disturbance, appetite disturbance, variable weight, decreased energy and interest, self-esteem, confidence and optimism…persistently depressed mood and with tearfulness.[24]
[24] Ibid, folio 63.
Her medication included Tramal (an opioid pain medication). In Dr New’s opinion the applicant’s employment provided the main contributor to her condition. These include the physical damage as a result of the collapse of the desk and the psychological damage as a result of conflict in the workplace.
At this point in time the weight of medical evidence was consistent with the view that the applicant had a continuous history of lower back and leg pain dating back to the 2001 Injury.
Comcare ceased liability on 24 April 2003 based on the report of Dr Kahler discussed at paragraph [32] above.[25]
[25] T31, folio 67.
The applicant did not challenge that decision and stopped submitting claims for medication and treatment to Comcare for the next 11 months.
On 1 March 2004, the applicant wrote to Comcare seeking reconsideration. The letter noted that the applicant was ‘still experiencing overwhelming back pain’.[26] She advised that she was seeing Dr Ong on occasions ‘mainly for prescription drugs so I am able to sleep at night and function pain free at work’.[27] This letter also includes reports of issues involving the applicant ‘tripping over [her] feet’.[28] The letter states that her pain was not an aggravation of the primary injury (2001 Injury), rather, ‘[her] pain is coming from the original injury’.[29]
[26] T32, folio 68.
[27] T32, folio 69.
[28] Ibid.
[29] Ibid.
The applicant sent a further letter to Comcare on 3 May 2004.[30] In it she advised that:
(a)she was under the impression that her claim would be kept open. She did not receive the letter from Comcare stating that the claim would be finalised;
(b)during the period when she did not make any claim she was still taking medication including Tramal and Zoloft (an anti-depressant);
(c)she tried to work on things on her own after Comcare refused to assist her to attend the Pain Logic clinic; and
(d)she continues to see Dr Harding on a regular basis to have epidural injections and medications.
[30] T33, folio 71.
Unfortunately, Dr Harding’s treatment records for this period are not available so the extent to which the applicant was receiving treatment in this period cannot be confirmed.
Comcare invites me to find that the applicant did not attend Dr Harding for treatment in relation to this period and that her symptoms resolved during this period. The applicant has consistently maintained that she was receiving such treatment and I am satisfied that she has been truthful in her dealings with Comcare. Therefore, I am not satisfied that there is a sufficient basis to make such a finding.
On 27 May 2004, the applicant submitted a claim for permanent impairment supported by Dr Harding. The injuries identified in the claim form were:
Lower back pain, hips ache, tiredness, not sleeping at night, sharp pains down legs, Depression due to pain, Joint pain in sacro-iliac joints, movement pain, tripping over my feet at work and home.[31]
[31] T34, folio 73.
On the claim form, Dr Harding indicated that the condition ‘will improve’ and would stabilise ‘within 12 months’.[32]
[32] Ibid, folio 74.
The claim was rejected on the basis that the impairments did not stem from the workplace injury and were not yet permanent.
On 18 June 2004, Nola Wright, the applicant’s OH&S Rehabilitation Manager, wrote to Comcare confirming that the history she received from the applicant (in May 2003) was that her symptoms had not subsided at any stage following her accident at work. Ms Wright reported that:
for over twelve months now she has complained of problems of sleep disturbance, not being able to maintain a satisfactory social life etc because of the ongoing pain in her back. Ms Ivill has been receiving treatment from her treating doctor and a Musculoskeletal Medicine Doctor, Dr Geoff Harding all of which she paid for [herself].[33]
[33] T36, folio 81.
The letter confirms that the applicant was reporting ongoing symptoms related to the 2001 Injury to a third party in the period when she was not receiving compensation.
On 12 July 2004, Comcare revoked the decision to cease liability made 15 months before and accepted ongoing liability.[34] The reasons given for that view are compelling and consistent with the evidence available to Comcare at the time and available to the Tribunal today. The reasons for setting aside the decision to deny liability were that:
(a)the medical evidence indicated that the applicant was asymptomatic prior to the 2001 Injury;
(b)the claim manager who ceased liability relied on Dr Kahler’s reports of August and November 2002 to cease liability in the claim from 24 April 2003;
(c)Dr Kahler reported that he had only seen her once - on 27 August 2002 - and, at that time, the applicant was taking multiple medications and should enrol in a formal back program;
(d)Dr Kahler concluded that the employment related aspects of her condition ‘should settle well within the 12 month period’;
(e)as he saw her some 16 months after the injury and found ongoing symptomatology at that time, the delegate concluded that Dr Kahler must have meant within 12 months from the date of his report; and
(f)the current medical evidence from Dr Harding indicates ongoing symptomatology of discogenic back pain due to the 2001 Injury.
[34] T37, folio 83-86.
On 17 March 2005, Dr Harding reported that the applicant continued to suffer from lower back pain, the onset of which was after a work injury.[35] He considered that the pain was discogenic in origin and somatic referred pain, and that surgery was not indicated.
[35] T38, folio 87.
On 1 April 2005, the applicant’s OH&S Rehabilitation Manager recommended she attend a pain management course at Pain Logic. At the time, the applicant was working her normal position and normal hours. The course was recommended on the basis that the applicant’s chronic back condition significantly interfered with her personal life and that she finds her work to be very difficult at times.
At this point in time it does not appear that the applicant was deriving secondary gain from continuing to report significant pain attributable to the 2001 Injury. She was working full time and receiving modest amounts of medical treatment.
From 2005 onwards, the applicant continued to report lower back and leg symptoms against a background of a deteriorating work situation and significant psychological symptoms. Conflict at Brisbane Airport led her to take time off work for psychological symptoms which appear to have aggravated her experience of pain.
The applicant was absent from the workplace for significant periods between April 2005 and December 2006. She was then transferred to Canberra in December 2006 when her husband (who also worked at AQIS) accepted a transfer.
After arriving in Canberra, the applicant was referred to consultant rehabilitation and musculoskeletal medicine specialist, Dr Speldewinde.
The applicant began a graduated return to work on 12 February 2007. However, she discovered that one of the persons with whom she had had difficulty in Brisbane had re-located to Canberra and was working in the same building as her. As a result she was declared unfit for work in March 2007 and steps were taken to find her a position within a new department. At the same time the applicant was notified of the outcome of an internal disciplinary investigation and her classification was reduced as a consequence of the findings.
When Dr Speldewinde examined the applicant on 20 March 2007, he found marked restriction of extension and bilateral lumbosacral tenderness extending mildly into the sacroiliac joints.[36] He referred her to a psychiatrist and an exercise therapist.
[36] T65, folio 170.
On 29 May 2007, Dr Speldewinde wrote a short report confirming that the applicant’s condition at that time was related to the 2001 Injury.[37]
[37] T72, folio 184.
The applicant undertook a graduated return to work with the Australian Plague Locust Commission (APLC) and then gained permanent employment with the Department of Family and Community Services and Indigenous Affairs.
On 8 August 2007, she was sent to Dr Cassar, a pain management specialist, for assessment.[38] He concluded that the applicant suffered from a lumbar discogenic and lumbar vertebral facet injury involving at least the L5/S1 disc and the three lower most lumbar facet joints. He also concluded that the probable cause of the lumbar disc, lumbar facet joint, and bilateral hip gluteal bursitis conditions and secondary weakness was the 2001 Injury.[39]
[38] T78, folio 195-203.
[39] Ibid.
By August 2007, the applicant had returned to full time work. Until 28 April 2008, treatment was limited. Dr Cassar developed a rehabilitation plan dated 28 May 2008 which included:
exercise rehabilitation to assess functional restrictions, overcome spasms and impaired ROM and to strengthen the painful injured parts and develop self-management … in home setting.[40]
[40] T83, folio 218; T84, folio 221.
On 30 May 2008, Marshall O’Brien, psychologist, reported on the applicant. He noted that the applicant provided a valid profile on the Minnesota Multiphasic Personality Inventory – 2 (MMPI-2) (Short Version).[41]
[41] T85, folio 222. This test is discussed further below.
Around 1 July 2008, the applicant was attending an exercise physiologist at Dr Cassar’s rooms. He recommended that she get a bike along with some other equipment to assist with her rehabilitation.
On 16 December 2008, the applicant suffered a further injury when she fell from her bike. The accident is described in a referral letter from Dr Lo to orthopaedic surgeon Dr Miniter, in the following terms:
[she] clipped her left foot on the ground on 16/12/08 while cycling for rehabilitation for a work related back injury.[42]
[42] T88, folio 226.
That description is broadly consistent with the description of the accident which the applicant gave when giving evidence to the Tribunal.
The applicant’s ACL was torn in the accident and a surgical repair was necessary. The applicant underwent a reconstruction in January 2009.
On 15 January 2009, the applicant submitted a claim for compensation.[43] This claim was given a claim number ending in 07.
[43] T89, folio 227-240.
At that time she was working as an APS 6 with the Department of Education, Employment and Workplace Relations.
The claim was initially rejected on the basis that it was not part of the applicant’s rehabilitation program or approved medical treatment.[44] That decision was affirmed on 23 July 2009.[45]
[44] T93, folio 245-248.
[45] T95, folio 250-253.
The applicant then sought review in the Tribunal. The evidence established that a proposed rehabilitation plan dated 22 August 2008 was never approved. Dr Cassar reported that in relation to the applicant, back and left leg pain remained an issue especially at night and there remained significant differences in leg strength with persisting weakness of left leg compared to right leg. Dr Cassar also had a note that one of his staff spoke to the applicant on 16 December 2009 and the applicant told her that she had been cycling but her weak left foot slipped off the pedal and she dropped the bike.
In a report dated 2 July 2010, Dr Cassar gave the opinion that the applicant’s left leg weakness was caused by her accepted condition.[46]
[46] T98, folio 265.
On 12 October 2010, Dr Lethlean reported on the applicant’s condition in the context of the Tribunal proceedings. His report was obtained at Comcare’s instigation. Dr Lethlean offered the opinion that the applicant continued to suffer from a back condition which was caused by age related changes and the 2001 Injury.[47] Dr Lethlean was satisfied that there was a link between the back condition and the applicant’s left leg weakness. Dr Lethlean concluded that it was more probable than not that the applicant’s left leg weakness caused her to fall from the bike.[48]
[47] T99, folio 268-276.
[48] T99, folio 275.
On 2 December 2010, the Tribunal proceedings were settled by a consent decision. Senior Member Creyke set aside the reviewable decision and substituted a decision:
(a)That the applicant suffered ‘strain of cruciate ligament of knee (left)(tear) (the injury), being an injury that was significantly contributed to by her employment with the Department of Education, Employment and Workplace Relations, and is deemed to have been sustained on 16 December 2008; and
(b)Comcare is liable to pay compensation to the applicant, under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth)(‘the Act’) in respect of the injury.[49]
[49] T100, folio 278.
In the years which followed, the applicant had significant periods of incapacity running almost continuously from July 2011[50]. The incapacity for work appeared to arise from an inability to sit or stand for periods greater than 10 minutes which was the result of increased pain.
[50] T158, folio 411.
She was referred to Dr Garth Eaton, occupational physician, for opinion and ongoing management on 12 October 2011. When he saw her, he recommended a 3 month program of psychological counselling, pain management training, appropriate medication and a rehabilitative exercise program.[51] A chronic pain management approach was taken in relation to her condition.[52]
[51] T138.1, folio 363.
[52] T139, folio 367.
The applicant was examined by occupational physician, Dr Marcus Navin, (on 24 February 2012 and 13 February 2013) who gave a diagnosis of sacroiliac joint, pelvis and secondary torsion of her L5/S1 joint initially, and in his later report as ‘pelvic malalignment.[53] He received a history broadly consistent with the history given to others, and reports a constant pain level of 7-8. He considered it was not appropriate for the applicant to participate in any work. He noted that it was her distress and her restlessness which impeded her capacity to return to work.
[53] T138, folio 358; T154, folio 402.
The applicant was referred for scans which provided limited insight into the causes of the applicant’s ongoing pain.[54] She remained on a combination of pain medication and anti-depressants.
[54] T146, folio 383; T149, folio 387.
By September 2013, active consideration was being given to invalidity retirement. That course was supported by consultant occupational physicians Dr Paul, Dr Eaton and Dr Williams.[55] Comcare supported the application for invalidity retirement.[56] On 31 July 2014, the applicant was invalidity retired from the Australian Public Service.[57]
[55] T165, folio 437.
[56] T169, folio 446.
[57] T173, folio 460.
In mid-2016, Comcare undertook a review of the applicant’s claim. Her General Practitioner reported on 15 August 2016 that her condition had not changed.[58]
[58] T178, folio 484.
On 31 August 2016, orthopaedic surgeon, Dr Stubbs, reported on the applicant following an examination undertaken on 26 July 2016. He reported that:
Clinically, there were no incontrovertible signs that Ms Ivill had an ongoing back injury. However, she certainly showed clinical signs, principally the left leg wasting, to suggest that her daily activities were restricted and that she showed consistent pain behaviour. I do not believe that she was consciously exaggerating the problem; I do not expect her to return to work.[59]
[59] T179, folio 495.
He questioned the original diagnosis and indicated that the applicant’s condition could be classified as a chronic pain syndrome.[60] Dr Stubbs noted the poor outcome in relation to the applicant’s left ACL surgery.[61] Dr Stubbs was of the view that:
Ms Ivill is the involuntary sufferer of the effects of the first workplace injury compounded by the left knee injury.[62]
[60] Ibid, folio 501.
[61] Ibid, folio 496.
[62] Ibid, folio 497.
He did, however, also note that there were a number of anomalies in the applicant’s clinical examination that could not be explained by ongoing tissue injury, but he did not think that the applicant was feigning symptoms.[63]
[63] Ibid, folio 497.
Dr Stubbs concluded that the applicant was physically well enough to undertake full time office work if her psychological issues were resolved.[64]
[64] Ibid, folio 502.
On 21 November 2016, the Department of Agriculture and Water Resources (Department of Agriculture) wrote to Comcare seeking a review of the applicant’s claim in light of Dr Stubbs’ report.[65] The request was made on the basis that the applicant’s condition was primarily related to her knee condition and that her knee condition is unrelated ‘to her previous employment with the department’[66].
[65] T182, folio 518.
[66] Ibid.
The request for review appears to be entirely misconceived. Dr Stubbs’ key conclusion was that the applicant was the ‘involuntary sufferer of the effects of the first workplace injury compounded by the left knee injury’. The 2001 Injury was described as ‘a co-factor in producing a chronic pain syndrome’ which was ‘unresolved’. Further, there was at that point an extant Tribunal decision which found a significant contribution by the applicant’s employment to her knee injury (although the employing department identified in that decision was not the Department of Agriculture).
In mid-2016, the applicant separated from her husband and in November 2016 she moved to Talbingo in regional NSW.
On 6 December 2016, the applicant was examined by Dr Dias, a consulting occupational physician, at the request of the Department of Agriculture. His conclusion was:
It is unlikely that her chronic and diffuse symptomatology affecting her lumbar spine and left hip region, are objectively and causally related to the work-related accident of 19 April 2001.[67]
[67] T185, folio 532.
In Dr Dias’ opinion:
It is unlikely that there is any specific organic pathology in [the lumbar spine and left hip region] which could account for the severity and chronicity of [the applicant’s] symptomatology over such a long period of time.
Dr Dias identified predominantly psychosomatic factors as perpetuating the applicant’s condition. Dr Dias noted the significant psychological comorbidity and the co-existence of a separate Comcare claim for workplace harassment.
On 3 January 2017, Comcare wrote to the applicant and advised that:
the weight of the current medical evidence supports the view that there is no relationship between your accepted conditions and the applicant’s employment with the Department of Agriculture or the Department of Education.[68]
[68] T186, folio 539.
On 21 January 2017, Dr Williams (the applicant’s General Practitioner) provided a report supportive of the applicant and the conclusions of Dr Stubbs.
On 25 January 2017, the applicant, through her lawyers, submitted claims for permanent impairment and non-economic loss in relation to her back, pelvis, left leg and knee, right leg and knee and for mental stress.[69] The applicant at hearing submitted that the claim for mental stress provides the basis for the Tribunal to determine the applicant’s claim for permanent impairment in relation to her adjustment disorder with depressed mood.
[69] T188, folio 544.
On 3 February 2017, Comcare determined that the applicant’s ‘aggravation of sacroiliitis, not elsewhere classified, sprain of other specified sites of hip & thigh (right) and displacement of intervertebral disc – lumbar’ has since resolved and she does not suffer from the effects of her compensable condition.[70] Consequently, Comcare was not liable to pay compensation under sections 16 or 19 of the Act.
[70] T190, folio 561.
It is of note that Comcare’s decision significantly misinterpreted Dr Stubbs report as supportive of its decision. While it is possible to read Dr Stubbs’ report as indicating that the applicant’s immediate soft tissue injuries following the accident had resolved, it is clear that Dr Stubbs accepts that the applicant continued to suffer from the effects of her 2001 Injury compounded by her left knee injury.[71] It is regrettable that the issues that Dr Stubbs had with the descriptive diagnosis of the condition were used by Comcare as the foundation for ceasing compensation payments to the applicant. When his report is properly understood, Dr Stubbs was supportive of continued liability but under a different diagnostic label.[72]
[71] T179, folio 497.
[72] I make this comment appreciating that I am undertaking de novo review. In that context it is necessary to consider whether the evidence before me is supportive of a decision to cease liability.
On the same day, Comcare determined that it had no present liability for medical expenses or incapacity payments in relation to the applicant’s left knee condition.[73] This decision was not based on a conclusion that Comcare had no ongoing liability in relation to the knee injury but on the view that:
(a)the applicant’s treating General Practitioner and Dr Stubbs agree that there is no medical treatment that will be beneficial to the applicant’s condition; and
(b)the applicant’s incapacity for work was ‘due to non-compensable factors’ – a conclusion which relied on Dr Stubbs’ comment that he is of the view:
that if the physical injuries were the only consideration and not the subsequent chronic pain syndrome and psychiatric issues, I would report her as fit for full-time office work, even taking the present muscle wasting in the left leg into consideration.[74]
[73] T191, folio 563.
[74] T191, folio 564-565.
The second finding again overlooks Dr Stubbs’ conclusion that:
Whatever the original diagnosis was of Ms Ivill’s back, there is evidence of ongoing dysfunction because of the persisting pain elements…I do accept that Ms Ivill is the involuntary sufferer of the effects of the first workplace injury compounded by the left knee injury…I do not think there are any prospects for resolution of this problem to the point where Ms Ivill will re-enter the workforce.[75]
[75] T179, folio 497.
On 2 March 2017, the applicant, through her solicitors, sought review of both decisions, relying heavily on the reports of Dr Stubbs and her General Practitioner.
On 3 March 2017, the applicant’s claim for permanent impairment in relation to the conditions arising from the 2001 Injury was rejected on the basis that ‘liability for the condition had been disallowed’.[76] The decision specifically noted that ‘Comcare have [sic] not accepted liability for ‘mental stress’, against [the applicant’s] current claim’.[77]
[76] T194, folio 573.
[77] T194, folio 574.
On 3 March 2017, Comcare also rejected the claim for permanent impairment in relation to the knee condition on the basis that ‘liability for this condition has been disallowed’.[78] The basis for that assertion is never explained and it appears to be at odds with the more narrow findings in relation to the knee condition cited at [98] above, which never involved a finding that liability for the knee condition had been disallowed.
[78] T195, folio 575.
On 31 March 2017, Comcare undertook a reconsideration of the determination made in relation to the applicant’s ‘aggravation of sacroiliitis, not elsewhere classified, sprain of other specified sites of hip & thigh (right) and displacement of intervertebral disc – lumbar’. The delegate recited significant parts of the applicant’s medical history which, almost without exception, supported the applicant’s claim of ongoing symptoms related to the original injury she suffered in 2001. The delegate went so far as to note that ‘Dr Williams agreed with Dr Stubbs that [the applicant’s] condition was a chronic pain condition due to [her] original injury’.[79]
[79] T197, folio 580.
However, the delegate opted to take a narrow approach to her powers and found as follows:
In reviewing the above evidence, I note that Dr Stubbs, Dr Dias and Dr Williams all agree that your current condition is that of a chronic pain condition. As Comcare has not accepted liability for a chronic pain condition, I am unable to assess your requirement for medical treatment or incapacity as a result of this condition. I can only consider whether your compensable conditions of ‘aggravation of sacroiliitis, not elsewhere classified, sprain of other specified sites of hip & thigh (right) and displacement of intervertebral disc – lumbar’ continue to require medical treatment or result in an incapacity for employment.
Given the most recent medical evidence all supports that you no longer experience these conditions, I cannot be satisfied that they have a requirement for medical treatment or result in an incapacity for employment. Therefore, I find that you have no present entitlement for medical expenses or incapacity under sections 16 and 20 of the SRC Act.[80]
[80] Ibid.
Comcare thus ceased liability not because the applicant was no longer incapacitated as a consequence of the injuries she suffered in 2001, but on the basis that the earlier diagnosis had changed and should be the subject of a separate claim for a chronic pain condition.
On 4 April 2017, Comcare reviewed the decision it made on 3 February 2017 in relation to the applicant’s knee condition and payment of compensation for incapacity and medical treatment. The delegate found that the applicant’s incapacity for employment was not the result of her left knee injury but was due to other conditions. Comcare declined to pay for medical treatment on the basis that no active treatment of the knee condition would be beneficial.[81] There was, however, no suggestion that if the left knee did require treatment that Comcare was not liable for the injury.
[81] T198, folio 584.
On 4 May 2017, the applicant applied for review of the decisions to cease liability in relation to her 2001 Injury[82] and to refuse payment of incapacity payments and medical expenses in relation to her 2008 Injury.[83]
[82] T1.
[83] T2.
On 29 May 2017, the applicant sought review of Comcare’s decisions to reject the claims for permanent impairment in relation to the applicant’s knee condition and her injuries arising out of the 2001 Injury. Those decisions were reconsidered on 23 June 2017. In relation to the knee condition, the review delegate concluded that the medical evidence in relation to the applicant’s knee condition (from Dr Lethlean, Dr Paul and Dr Stubbs) did not justify an impairment rating of 10%.[84] The decision of 3 March 2017 was affirmed.
[84] ST7, folio 735.
In relation to the conditions arising from the 2001 Injury, the review delegate concluded, based on earlier decisions, that the applicant no longer experienced the effects of the accepted compensable conditions and on that basis refused compensation for permanent impairment,[85] and the decision of 3 March 2017 was affirmed.
[85] ST8, folio 739.
Applications were made to the Tribunal in relation to the decisions on 26 October 2017 after some delay in the delivery of those decisions.[86]
[86] ST2 folio 725; ST1, folio 723.
Meanwhile, out of an abundance of caution, the applicant submitted to Comcare fresh applications for compensation in relation to a ‘chronic regional pain syndrome’ arising from the 2001 Injury and a ‘depressive disorder’ which emerged in 2002. This was necessary because of the narrow approach taken by the delegate who considered the injuries arising out of the 2001 Injury. A fresh claim for compensation was submitted to Comcare in relation to the chronic pain syndrome around 11 July 2017[87] and in relation to the applicant’s claimed depressive disorder around the same date.[88]
[87] ST12.
[88] Exhibit R4.
The chronic pain syndrome was described as developing following the 05 (2001 Injury) and 07 (2008 Injury) claims. The depressive disorder claim was described in the following terms:
During my rehabilitation [in relation to the 05 and 07 claims], I realised I was struggling with my mental health and consulted my treating practitioners who diagnosed me with ongoing anxiety and depression. Please refer to the notes of Drs Frank New and Geoff Harding, report of Dr Stubbs (31 August 2016) requested by Comcare as well as the report of Dr Williams (GP) dated 1 February 2017 for further particulars.[89]
[89] Exhibit R4, 3.
As a result of these claims, the applicant was sent by Comcare to see Professor Youssef in relation to her chronic pain syndrome and to Mr Haralambous in relation to her depressive disorder.
It is worth noting at this point that all of the evidence, with the exception of Dr Dias, favoured the view that the applicant continued to suffer from the effects of the 2001 and 2008 Injuries. An issue had emerged in respect of diagnostic labelling but the overwhelming weight of the evidence supported ongoing liability.
Before summarising the reports of the new doctors it is also worth noting that the applicant’s psychological issues are complex. It appears from the documents available that the applicant had a separate psychological claim arising from the difficulties she experienced with other staff while employed as a dog handler (the 06 claim). However, the applicant’s treating doctors and doctors who had seen the applicant at the request of her employer, had frequently commented on the fact that psychiatric issues are impacting upon her perception of her pain and interfering with her ability to make a physical recovery. For example, in a report dated 14 November 2002 Dr Frank New, a psychiatrist, commented:
Comcare have decided that I am her treating specialist with respect to her currently unresolved stress claim, and that I have nothing to do with her pain. I find this a curious attitude particularly as I don’t believe the issues of her stress and her pain can be separated in a meaningful sense of the word.[90]
[90] Exhibit R1, 12.
In his report of 31 August 2016 Dr Stubbs commented:
In terms of the purely musculoskeletal management of her low back and knee injuries, I would regard both of them as capable of major improvement with an appropriate rehabilitation program. The problem seems to be that the associated psychiatric illness is impeding that, or even natural improvement from taking place.[91]
[91] T179, folio 501.
The complex interaction between the applicant’s physical pain and her psychological issues arising from conflict in her workplace were commented on as far back as July 2002.[92]
[92] Exhibit R1, 9.
However, by 2016 the applicant was still exhibiting signs of depression in a context where she had not been in any Commonwealth workplace since 2011. Dr Stubbs (who is not a psychiatrist) described the ongoing relationship in the following terms:
There are associated workplace disturbances which I did not discuss in depth with Ms Ivill and which would best be left to a psychiatrist to discuss. Although the cause of these is no longer present; the effects seem to have become ingrained.[93]
[93] T179, folio 496.
It is in this context that Mr Haralambous was engaged to assess the applicant.
In his report dated 17 November 2017, Mr Haralambous concluded that, after conducting the following psychometric tests:
(a)Minnesota Multiphasic Personality Inventory – 2 (MMPI-2) ; and
(b)Structured Inventory of Malingered Symptomatology (SIMS)
the applicant did not suffer from persistent manifestations of a diagnosable psychological disorder.[94]
[94] ST14, folio 833.
This conclusion was reached based on both the psychometric testing results and from the applicant’s history and presentation at interview. Important findings included:
(a)objective evaluation with the MMPI-2 indicated a tendency to exaggerate and/or embellish the negative psychological effects of the circumstances from which the applicant’s claim arose including the negative psychological effect of pain experiences;[95]
(b)the applicant did not appear depressed, she related in a calm manner and was never tearful, she did not demonstrate any signs of psychomotor disturbance and she did not demonstrate any obvious signs of elevated levels of anxiety;[96] and
(c)the findings from objective psychometric evaluation are not consistent with genuine persistent manifestations of a chronic psychological pain syndrome.[97]
[95] Ibid, folio 831 - 832.
[96] Ibid, folio 831.
[97] ST14, folio 833.
On 15 January 2018, based on Mr Haralambous’ report, Comcare rejected the applicant’s claim for a depressive disorder.[98]
[98] ST15, folio 835.
Professor Peter Youssef was engaged by Comcare to consider the applicant’s physical complaints. He considered that the 2001 Injury caused soft tissue injuries that resolved. There were no other significant physical conditions. He could not find a physical cause for a chronic pain syndrome. He noted that he was not a psychiatrist and did not have the expertise to comment on whether there was a mental illness which predisposed the applicant to developing a chronic pain disorder. In any event he did not find evidence of an identifiable chronic pain syndrome.[99]
[99] ST13, folio 785.
On 15 January 2018, based on the report of Professor Youssef, Comcare denied liability in relation to a chronic pain syndrome.[100]
[100] ST16.
On 23 February 2018, both decisions denying liability were affirmed but in a procedurally unconventional way.[101] The applicant sought review of the decision in respect of the depressive disorder describing it as a claim for ‘psychiatric illness – depressive disorder’ arising out of the 05 and 07 claims.[102]
[101] ST18; ST19.
[102] Exhibit R4, 3.
Comcare reconsidered the decision, not by reference to the claimed injury – depressive disorder – but by considering in two separate decisions whether the depressive disorder was related to either the 2001 Injury or the 2008 Injury.[103]
[103] ST18; ST19.
In its reviewable decisions Comcare determined:
(a)that any psychological injuries experienced by the applicant resulted from conflict within the workplace, separate to the injuries arising from the 2001 Injury and that condition was considered under claim 455947/6;[104] and
(b)further psychological symptoms had been addressed as early as 2002 as part of the 06 claim and no psychological treatment was obtained after 2008. Accordingly, any psychological condition was not related to either the 2001 Injury or the 2008 Injury and liability should not be accepted.[105]
[104] ST19.
[105] ST18.
The applicant also sought review of the decision in relation to her chronic pain syndrome. Again, Comcare reconsidered the decision, not by reference to the claimed injury – chronic pain syndrome – but by considering in two separate decisions whether the chronic pain syndrome was related to either the 2001 Injury or the 2008 Injury.[106]
[106] ST19.
Comcare determined that the chronic pain from which the applicant suffered results from factors other than the 2001 Injury and the 2008 Injury.
The applicant applied to the Tribunal to review these decisions on 28 February 2018.[107]
[107] ST9; ST10.
In addition to the matters which were the subject of explicit determination by Comcare, the applicant has also sought to have the Tribunal consider whether the applicant should receive compensation for permanent impairment in relation to a psychiatric disorder. The Tribunal’s jurisdiction to make such a determination was said to arise from the permanent impairment claim made on 25 January 2017 (for permanent impairments arising from the 2001 Injury) which identified the impairments suffered as including ‘mental stress’. That claim was rejected on 3 March 2017 by way of determination on the basis that there was no accepted claim for ‘mental stress’. The applicant sought review of the 3 March 2017 determination on 29 May 2017 in very broad terms and a decision was made to affirm the decision under review on 23 June 2017. Even though no express reference was made to the ‘mental stress’ aspect of the original determination, the effect of the decision of 23 June 2017 was to affirm the rejection of the claim. This decision is sufficient to give the Tribunal jurisdiction to consider whether the applicant has suffered a psychiatric permanent impairment arising out of her physical injuries.
The applicant did make a claim for permanent impairment in relation to a mental condition arising from the 2001 Injury. Comcare did make a determination in relation to that issue on 3 March 2017. Review of that decision was sought in the most general terms and Comcare affirmed the decision under review on 23 June 2017. Consequently the requirements for jurisdiction outlined in Lees v Comcare and Another[108] (Lees) are met. Comcare was on notice in relation to the applicant’s claim and medical evidence in relation to the issue was filed by both parties. I am satisfied that I have jurisdiction to deal with the issue.
[108] (1999) 56 ALD 84 at [48]- [50].
SUMMARY OF ISSUES
In summary, there are 6 reviewable decisions which are the subject of Tribunal review. One of those decisions, the permanent impairment decision in relation to the 2001 Injury (the 05 claim) (2017/7229), raises Comcare’s liability for permanent impairment in relation to both physical and psychiatric impairments arising from the 2001 Injury. Consequently, the total number of issues which need to be addressed is 7.
Comcare’s primary contention is that the applicant suffered a soft tissue injury in 2001, and those injuries resolved no later than mid-2002. As a consequence, the 2001 Injury is no longer compensable and could not have been responsible for the leg weakness that led to the 2008 Injury. The result is that the applicant’s current incapacity and impairments did not arise out of or in the course of her employment, nor did employment make a material contribution to the development of any disease (including any chronic pain syndrome or depressive disorder).
Comcare also submits that even if I were to accept that work factors at some point made a material contribution to the conditions from which the applicant now suffers, non-work factors are now operative and the work contribution is no longer material.
EVIDENCE AVAILABLE TO THE TRIBUNAL
Prior to the hearing the applicant filed:
(a)a witness statement from the applicant dated 10 October 2017;
(b)a copy of an extract from the applicant’s diary dated 1 July 2008;
(c)two reports from occupational & musculoskeletal physician, Dr David McGrath, dated 8 February 2018 and 7 June 2018;
(d)two reports from occupational physician, Dr Garth Eaton, dated 10 February 2018 and 10 June 2018; and
(e)three reports from psychiatrist, Dr Leon Turnbull, dated 6 February 2018, 7 March 2018 and 22 May 2018.
Prior to the hearing Comcare filed:
(a)Tribunal Documents;
(b)a bundle of extracted summonsed material;
(c)a further report from Professor Peter Youssef dated 12 April 2018;
(d)a further report from Mr George Haralambous dated 11 April 2018; and
(e)the applicant’s workers’ compensation claim form dated 3 July 2017.
The applicant’s oral evidence
The witness statement filed by the applicant was of limited assistance to the Tribunal. It was part witness statement and part submission and was clearly a document prepared by the applicant’s lawyer based on a close review of the file. It is filled with quotations from medical reports which it is impossible to believe the applicant recovered from her own memory. That much was accepted by counsel for the applicant at hearing.
The principles identified by Justice Robertson in a speech entitled ‘Affidavit Evidence’ are relevant:
[It is important] to let a deponent speak for himself or herself. Too many times a deponent is asked in cross examination what they meant by particular words and the implicit or explicit answer is ‘I don’t know, my lawyer drafted it’. This does not instil confidence in the reliability of the evidence of that witness. Even worse is where the affidavit, for example, has frequent reference to the XYZ trust and the deponent has either never heard of it or does not know it by that description or title.[109]
[109] Alan Robertson, ‘Affidavit Evidence’ (Speech, College of Law 2014 Judges’ Series, 26 February 2014) <
Notwithstanding that the Tribunal is a more informal jurisdiction, in circumstances where an applicant is expected to enter the witness box and adopt a statement under oath or affirmation, the same principles should be applied to the preparation of a witness statement as would be applied to the preparation of an affidavit. In cases where, the applicant’s claim history is long and her memory may be incomplete or inaccurate, unless there is reason to doubt the veracity of her reporting to doctors on earlier occasions, it is likely that contemporaneous records of reported symptoms will be more reliable than evidence given by an applicant from their memory.
Incorporating doctors notes into a witness statement as if it were the applicant’s memory is unhelpful to the Tribunal and has the potential to damage the applicant’s credit. Generally speaking I have placed little weight on the parts of the applicant’s statement which deal with historical matters, as they are clearly derived from sources other than the applicant’s memory.[110] Matters such as the applicant’s description of her current symptoms I accept has been sourced from her, but for the reasons discussed below, I am sceptical about the accuracy of them.
[110] I have relied on primary sources from which they were derived.
The statement was supplemented by oral evidence from the applicant.
The applicant gave evidence, in two separate periods totalling 2.5 hours, broken only by the lunch break. In that time, although she was hunched over throughout, she did not stand or take any short breaks despite having been offered the opportunity to do so.
The description she gave in the witness box of her original accident in 2001 was significantly different and more serious than the contemporaneous records of the incident indicate. In particular, the applicant claimed to have been pinned to the floor by the desk after it collapsed and that she could not move until two male colleagues lifted the table off her. That account is not consistent with contemporaneous documents[111] and even accounts given to doctors within twelve months of the incident.[112] Wherever the applicant’s account departs from the contemporaneous accounts recorded in the documents available to the Tribunal, I have preferred the contemporaneous accounts.
[111] See T4, folio 7; T7, folio 14.
[112] See T16, folio 36.
I am satisfied that the applicant, in giving her account of the 2001 Injury, was making a conscientious effort to remember the incident accurately, but the memory has become distorted and she remembers it now as a much more serious accident than it actually was. This tendency to unconsciously exaggerate matters concerning her claim is significant in the assessment of the applicant’s claims more generally.
The applicant’s account of the 2008 Injury was broadly similar to the contemporaneous records. I am satisfied that the accident occurred as a result of weakness in her left leg causing her foot to slip off the pedal.[113] I accept her evidence in this regard.
[113] See T87; T88; T89; T90; T199, folio 640.
I also accept that she continues to have pain from these injuries which results in incapacity for work and results in the need for medical treatment. However, I do note that there was much about the applicant’s evidence which suggested that the incapacity resulting from her symptoms was not as significant as she made out.
In her witness statement the applicant described her pain as at a constant level of 7–8 out of ten.[114] This is a severe level of pain. There was nothing in the applicant’s demeanour while giving evidence that indicated that she was experiencing pain of anything like that intensity. Her claim in her statement that ‘I cannot settle, or sit or stand without having to shift my position every two or three minutes as the pain becomes unbearable’[115], was also inconsistent with her demeanour while giving evidence.
[114] Exhibit A1.
[115] Ibid, [69].
The applicant also claimed in her witness statement that her ‘interpersonal relationships have largely broken down, including my marriage’. However, the evidence she gave orally was inconsistent with that assessment.[116] While I am satisfied that the applicant’s marriage has broken down, many other interpersonal relationships remain intact. She has a long term business partner who she assists with a dog breeding business and with whom she attends dog shows twice a year. Her invalid father lived with her for a while, and when asked about what she did in the few days prior to attending at the Tribunal, the applicant volunteered that she had had dinner with her sister and her father and visited a friend. A visit she undertook on foot. The matters specifically described were not consistent with the applicant’s claims of feeling ‘isolated, alone and fearful of the future’.[117]
[116] Ibid, [65(f)].
[117] Ibid, [65(d)].
This claim was submitted around 11 July 2017. The original claim form for the Depressive Disorder appears at Exhibit R4.
The claim form identifies the following tasks being performed when the applicant was injured.
Transferred to Melbourne Airport from usual position at Brisbane Airport. Was undertaking workplace activities as well as rehabilitation activities from previous workplace injuries.[164]
[164] Exhibit R4, 3.
On the claim form the applicant described how her injuries came about by cross-referencing her 05 claim (which relates to the 2001 Injury). She claims to have first sought treatment in relation to the condition on 9 August 2002 from Dr Geoff Harding (who she mistakenly identifies as a psychiatrist when in fact he is a doctor with additional training in the treatment of musculo-skeletal conditions).[165] She notes that she has made a previous claim in relation to an adjustment disorder (which is the 06 claim discussed at paragraph [112] above). In making the claim she relies on the notes of Drs New (a psychiatrist) and Dr Harding, who treated her in 2002, and a report dated 31 August 2016 by Dr Stubbs (an orthopaedic surgeon) and a report of her General Practitioner, Dr Williams dated 1 February 2017.
[165] In 2002 the relevant test was whether the employee’s employment contributed to an ailment to a material degree.
In considering the claim it is important to keep in mind that:
(a)the claim is for an injury (in the broad sense defined in the Act) which dates back to 2002;
(b)pursuant to section 14, Comcare is liable to pay compensation in accordance with the Act in respect of an injury if the injury results in incapacity for work or impairment;
(c)in 2002, an injury included a disease suffered by an employee. A disease was defined as (i) any ailment suffered by an employee; or (ii) the aggravation of any such ailment – being an ailment or an aggravation that was contributed to in a material degree by the employee’s employment by the Commonwealth;
(d)the applicant has already been compensated for significant periods of incapacity and significant amounts of medical treatment as a consequence of her related physical conditions and accepted psychological condition. Consequently a finding that at some point the applicant met the section 14 thresholds in relation to a psychological condition does not mean that she is entitled to any additional compensation over and above what she has already received; and
(e)the fact that the applicant met the threshold for section 14 liability in relation to this condition in the past does not mean that she still meets that threshold and/or is entitled to compensation now or in the future. Her current entitlement to compensation in relation to this condition is a separate question.
The original determination in relation to this condition was made on 15 January 2018. The delegate determined:
Comcare is not liable for your 'Depressive disorder' condition under section 14 of the SRC Act; and
Liability is not accepted under section 16 of the SRC Act, for medical treatment relating to your 'Depressive disorder' condition.
Liability was denied because:
the medical evidence indicates that it is more likely that your current presentation is as a result of other factors than your former Commonwealth employment.
The applicant sought review of this decision describing her claim as a claim for ‘psychiatric illness – depressive disorder’ arising out of claims 455947/5 (the 2001 Injury) and 455947/7 (the 2008 Injury).
Comcare reconsidered the decision, not by reference to the claimed injury - depressive disorder - but by considering in two separate decisions whether the depressive disorder was related to either the 2001 Injury or the 2008 Injury. Comcare determined that any psychological injuries experienced by the applicant resulted from conflict within the workplace, separate to the injuries arising from the 2001 incident. That condition was considered under claim 455947/06. Further (in the decision at ST18 in relation to the 2008 Injury) Comcare concluded that the applicant’s psychological symptoms had been addressed as early as 2002 as part of the 06 claim and no psychological treatment was obtained after 2008. Accordingly, any psychological condition was not related to either the 2001 Injury or the 2008 Injury and liability should not be accepted.
At the hearing, the applicant pressed the claim on the basis that there was liability for the applicant suffering depression as a result of the effects of pain in her back.[166] In closing submissions this claim was described as a back-up claim – which should otherwise be dealt with under the 05 or 07 claims if they were broad enough to cover the psychological effects of the two injuries. Given that a psychological disorder is a distinct injury, separate from the physical injuries suffered as a result of the 2001 Injury and 2008 Injury, it is appropriate to consider the claim as separate from the 05 and 07 claims.
[166] See Applicant’s Statement of Facts, Issues and Contentions at [112].
As with most aspects of this claim, the complex medical history combined with the complex claim history make it difficult to tease out the correct way of dealing with the claim.
The applicant undoubtedly suffered from psychological conditions arising from conflict in her workplace in the early 2000s. That is not in issue in these proceedings. However, even in 2002 the applicant’s physical injuries were also identified as contributors to her psychological symptoms. Dr New, in his report of 24 December 2002, identified ‘the physical damage as a result of the collapse of the desk’ as an employment contribution to the applicant’s adjustment disorder.[167]
[167] T29, folio 64.
The adjustment disorder claim (the 06 claim) was accepted and significant compensation was paid in relation to it particularly during 2005-2007.[168] However, Comcare always regarded it as unrelated to the applicant’s physical injuries.
[168] T80, folio 214.
Comcare’s approach however has been unduly narrow. It has been clear since Dr New reported on the applicant in 24 December 2002 that the applicant was suffering from a psychological disorder which was materially contributed to by her physical injuries.[169] This condition has persisted even after the applicant ceased effective participation in the workforce in July 2011. She remained on anti-depressants.[170] When she was seen by Dr Stubbs in 2016 she remained depressed. He commented as follows:
I believe Ms Ivill’s problems arise from workplace stress acting upon a work injury when a desk collapsed. This was compounded by a knee injury, these problems are still the cause of her inability to work. You will need to discuss the extent and reasons for her depression etc with a psychiatrist…In terms of the purely musculoskeletal management of her low back and knee injuries, I would regard both of them as capable of major improvement with an appropriate rehabilitation program. The problem seems to be that the associated psychiatric illness is impeding that, or even natural improvement from taking place.[171]
[169] T29, folio 64.
[170] As noted in the report of Dr Paul dated 30 September 2013 at T165, folio 4.
[171] T179, folio 500 - 501.
The most coherent analysis of the applicant’s psychological condition is that she began to suffer from an adjustment disorder with depressive features in 2002 which was brought on by the treatment she received in the workplace and which was aggravated by the pain of her injuries.[172] Psychiatric symptoms related to the applicant’s pain persisted until at least 2016.[173] Based on the report of Mr Haralambous, I am satisfied that her symptoms have significantly diminished. They may not have completely resolved or may fluctuate in intensity but they are currently less prominent than before the applicant moved to Talbingo following her divorce.
[172] T29, folio 64.
[173] See for example the report of Dr Stubbs at T185.
I am satisfied that Comcare is liable to pay compensation in accordance with the Act in relation to the condition (but given the payments made in relation to her other claims in the past, and my finding that the condition has now largely resolved, it seems unlikely that any amounts will be payable). The applicant’s present entitlement to compensation arises from her physical conditions.
Accordingly, the question of s 14 liability, in relation to the applicant’s psychological condition, is to some degree moot. However, if psychological symptoms (like depression) re-emerge and give rise to a need for medical treatment, permanent impairment or incapacity, Comcare is liable.
In light of this analysis I set aside the reviewable decisions in Tribunal Applications 2018/1160 and 2018/1161 in so far as they relate to the applicant’s depressive disorder and find Comcare liable to pay compensation in respect of an adjustment disorder with depressed mood arising from pain experienced as a result of the 2001 Injury and 2008 Injury. This is a separate injury to the applicant’s physical injuries.
Application for Permanent Impairment – Mental Stress – 2017/7229
On 25 January 2017, the applicant submitted a claim for permanent impairment arising from her 2001 Injury. The description of the conditions in respect of which the applicant wished to claim permanent impairment included ‘mental stress’. On 3 March 2017, the claim was rejected on the basis that Comcare had never accepted liability for mental stress in relation to the 05 claim. Review of that decision was sought in very general terms on 29 May 2017. That decision was affirmed on 23 June 2017, on the basis that the applicant no longer experiences the effects of the compensable condition. The applicant sought review of that decision.
As noted above, I am satisfied that the applicant suffered a psychological injury contributed to by her 2001 Injury and 2008 Injury. Consequently, it is open to the applicant to claim permanent impairment in relation to that injury.
Comcare’s rejection of the claim for mental stress and the subsequent reviewable decision rejecting the claim for permanent impairment satisfy the Lees requirements and are sufficient to give the Tribunal jurisdiction to consider the question of whether Comcare is liable to pay compensation pursuant to sections 24 and 27 of the Act in relation to any psychological impairment.
For Comcare to be liable to pay the applicant compensation in respect of permanent impairment, I must accept the evidence of Dr Turnbull. Dr Turnbull is supportive of a determination of 10% whole person impairment in relation to a psychiatric condition which he describes as an adjustment disorder with depressed mood.
His views are however at odds with the views formed my Mr Haralambous. To the extent that the two cannot be reconciled I prefer the views of Mr Haralambous for the reasons discussed at [192] above. Mr Haralambous found that the applicant did not presently suffer from a diagnosable pathology that may be reasonably attributed to the circumstances from which her claim arises.[174]
[174] ST14, folio 831.
In my assessment, the evidence supports the conclusion that the applicant suffered from a significant depressive illness contributed to by the pain she experiences as a result of the 2001 and 2008 Injuries. However, the symptoms of that illness have varied and they were not significant when the applicant was assessed by Mr Haralambous. While Dr Turnbull saw the applicant after she was assessed by Mr Haralambous, in my assessment he accepted too readily the applicant’s statements about her mental state.[175] For that reason, and because of the clear findings on objective testing that there was a propensity on the part of the applicant to exaggerate, I prefer the assessment of Mr Haralambous. The applicant’s presentation to Mr Haralambous, which was very consistent with her presentation in the Tribunal, was not consistent with a psychological condition that met the thresholds for payment of compensation for permanent impairment under Table 5.1 of the Guide.
[175] See paragraph [198] above.
Accordingly, I affirm the decision under review. The applicant has no entitlement as to costs in relation to this aspect of the matter.
DECISION
There are 6 decisions under review.
The Tribunal affirms the reviewable decision in Tribunal Application 2017/6376 refusing the applicant permanent impairment payments in respect of the left knee. The applicant has no entitlement as to costs.
The Tribunal affirms the reviewable decision in Tribunal Application 2017/7229 refusing the applicant permanent impairment payments in respect of any impairment arising from the 2001 Injury including any psychological impairment. The applicant has no entitlement as to costs.
The Tribunal affirms the reviewable decision in Tribunal Applications 2018/1160 and 2018/1161 in so far as those decisions determine that Comcare is not liable to pay compensation under s 14 of the Act it relation to the applicant’s Chronic Pain Syndrome.
The Tribunal sets aside the reviewable decisions in Tribunal Application 2018/1160 and 2018/1161 in so far as they relate to the applicant’s Depressive Disorder, and in substitution determines that Comcare is liable to pay compensation in respect of an adjustment disorder with depressed mood arising from pain experienced as a result of the 2001 Injury and the 2008 Injury, noting that this finding may be of historical significance only. Comcare is to pay the applicant’s reasonable party/party costs as agreed or taxed pursuant to s 67(8) of the Act.
The Tribunal sets aside the reviewable decision in Tribunal Application 2017/2620 and remits the matter to Comcare for reconsideration in accordance with a direction that Comcare is liable to pay compensation under ss 16 and 20 of the Act. Comcare is to pay the applicant’s reasonable party/party costs as agreed or taxed pursuant to s 67(8) of the Act.
The Tribunal sets aside the reviewable decision in Tribunal Application 2017/2645 and remits the matter to Comcare for reconsideration on the basis that Comcare is liable under ss 16 and 20 of the Act for medical expenses and incapacity payments in relation to the applicant’s knee injury suffered in the incident of 16 December 2008. Comcare is to pay the applicant’s reasonable party/party costs as agreed or taxed pursuant to s 67(8) of the Act.
I certify that the preceding 272 (two hundred and seventy two) paragraphs are a true copy of the reasons for the decision herein of Senior Member D O’Donovan.
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Associate
Dated: 16 January 2020
Date(s) of hearing: 20 May 2019 – 24 May 2019 Solicitor for the Applicant: Ms Claire Natoli, Baker, Deane & Nutt Counsel for the Applicant: Mr Alan Anforth Solicitor for the Respondent: Mr Peter Lehmann, Lehmann Snell Lawyers
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