Kallimanis and Linfox Australia Pty Ltd (Compensation) - [2023] AATA 4496

Kallimanis and Linfox Australia Pty Ltd (Compensation) [2023] AATA 4496 (19 December 2023)
Division: GENERAL DIVISION
File Number(s): 2021/3157
2022/2947
2022/3308

Re:Eftimios Kallimanis
APPLICANT

Linfox Australia Pty LtdAnd
RESPONDENT

DECISION
Tribunal:Senior Member Dr Linda Kirk
Date:19 December 2023
Place:Sydney

The First Review Application is dismissed under section 42B(1)(c) of the Administrative Appeals Tribunal Act 1975 (Cth).
The Reviewable Decisions which are the subject of the Second and Third Review Applications are affirmed.
.................................[SGD].......................................
Senior Member Dr Linda Kirk
CATCHWORDS
PRACTICE AND PROCEDURE – COMPENSATION – estoppel – claims previously made for compensation arising from employment – whether raising same substantive issues – relevance of principles of res judicata, estoppel, issue estoppel in proceedings of Tribunal – whether application frivolous or vexatious – power of Tribunal to limit evidence on matters canvassed in review of previous decisions and subject of extensive findings of fact – First Review Application dismissed.
COMPENSATION – whether liability should be accepted under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) – Applicant diagnosed with Adjustment Disorder – whether a consequence of the injury sustained to his left biceps during the work incident on 12 January 2017 and left biceps tendon surgery and recovery period -d whether an ailment – whether a disease – causation – whether ailments contributed to, to a significant degree, by employment – Second and Third Reviewable Decisions affirmed.
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Seafarers Rehabilitation and Compensation Act 1992 (Cth)
Tribunals Amalgamation Act 2015 (Cth)
CASES
Abrahams v Comcare (2006) 93 ALD 147
Australian Postal Corporation v Sellick (2008) 101 ALD 245
Cheung v Administrative Appeals Tribunal (2009) 176 FCR 20
Commonwealth v Snell [2019] FCAFC 57
Drake v Minister for Immigration (1979) 24 ALR 577
Ellison and Comcare (2022) 175 ALD 62
Ellison v Comcare [2022] FCA 95
Frosch v Comcare [2004] FCA 1642
Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 23
Hickey v Australian Postal Corporation [2023] FCA 57
Jeffrey & Katauskas v SST Consulting Pty Ltd (2009) 239 CLR 75
Kallimanis and Linfox Australia Pty Ltd (Compensation) [2020] AATA 1796
Kallimanis and Linfox Australia Pty Ltd (Compensation) [2022] AATA 3737
Kennedy v Comcare [2014] FCA 82
Lees v Comcare (1999) 56 ALD 84
Morgan v WorkCover Corporation [2013] SASCFC 139
Mununggurr v Comcare [2020] FCA 1786
Novosel v Comcare [2017] FCA 722
NXPQ and Comcare [2021] AATA 4094
Re Ashton and Linfox Armaguard Pty Ltd (2011) 128 ALD 593
Re Durham and TNT Australia Pty Ltd (2011) 124 ALD 136
Re Quinn and Australian Postal Corporation (1992) 15 AAR 519
Rippon v Chilcotin Pty Ltd [2001] NSWCA 142
Snell and Commonwealth of Australia (Compensation) [2018] AATA 1107
State Bank of New South Wales Ltd v Stenhouse Ltd (1997) Aust Torts Reports 81-423
Telstra Corporation v Hannaford [2006] FCAFC 87
Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507
Wong v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 242
Woodhouse v Comcare [2021] FCAFC 95; 285 FCR 14
REASONS FOR DECISION
Senior Member Dr Linda Kirk
19 December 2023
INTRODUCTION
First Review Application - 2021/3157

On 25 November 2020, Mr Eftimios Kallimanis (‘the Applicant’) lodged a claim for compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (‘SRC Act’) in relation to a condition described as ‘chronic pain syndrome’ affecting his ‘left arm and left shoulder’ (‘the chronic pain condition’). [1] He claimed to have sustained this condition on 12 January 2017 when he was ‘moving a heavy crate on a pallet’ during the course of his employment with Linfox Australia Pty Ltd (‘the Respondent’).[2]
[1] Exhibit R1, T89, 381 – 386, Questions 19 and 20.
[2] Ibid, T89, 383, Question 22.
On 20 January 2021, the Respondent issued a Determination denying liability for the Applicant’s chronic pain condition pursuant to section 14 of the SRC Act.[3]
[3] Ibid, T94, 392 – 397.
On 4 February 2021, the Applicant, through his solicitors, formally requested a reconsideration of the Determination dated 20 January 2021.[4]
[4] Ibid, T95, 398 – 399.
On 16 March 2021, the Respondent affirmed the Determination dated 20 January 2021 (‘Reviewable Decision 1’). [5]
[5] Ibid, T97, 401 – 407.
On 13 May 2021, the Applicant, though his solicitors, lodged with the Administrative Appeals Tribunal (‘the Tribunal’) an application for review of Reviewable Decision 1 (‘the First Review Application’).[6]
[6] Ibid, T1, 1 – 4.
Second and Third Review Applications - 2022/2947 and 2022/3308
On 6 December 2021, the Applicant lodged a claim for compensation under the SRC Act in relation to ‘Chronic Adjustment Disorder with Depressed and Anxious Mood’ (‘the psychological condition’) alleged to have been ‘secondary to left arm injury sustained on 12 January 2017 and associated chronic pain and disability’.[7]
[7] Exhibit R2, T98, 439 – 444, Questions 19, 21 and 22.
On 7 December 2021, the Applicant lodged a claim for a lump sum permanent impairment compensation in relation to the psychological condition.[8]
[8] Ibid, T99, 445 – 458.
On 8 February 2022, the Respondent issued a Determination denying liability for the psychological condition pursuant to section 14 of the SRC Act.[9]
[9] Ibid, T103, 462 – 469.
On 21 February 2022, the Respondent issued a Determination that the Applicant had no entitlement to the payment of lump sum permanent impairment and non-economic loss compensation pursuant to sections 24 and 27 of the SRC Act.[10]
[10] Ibid, T105, 471 – 477.
On 21 February 2022, the Applicant, through his solicitors, formally requested a reconsideration of the Determinations dated 8 February 2022 and 21 February 2022.[11]
[11] Ibid, T106, 478 – 479.
On 14 March 2022, the Respondent affirmed the Determinations dated 8 February 2022 and 21 February 2022.[12]
[12] Ibid, T107 and T108, 480 – 496.
On 11 April 2022, the Applicant, through his solicitors, lodged with the Tribunal an application for review of the Reviewable Decisions (‘the Second and Third Review Application’).[13]
[13] Ibid, T3, 9 - 13.
On 7 November 2022, the Tribunal, constituted by Deputy President Rayment, refused the Respondent’s application for dismissal of the Review Applications under section 42B(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (‘AAT Act’).[14] The Tribunal stated:[15]
If evidence reveals to be correct the proposition that the applicant is seeking to make substantially the same claim on substantially the same facts, then Linfox may seek to pray in aid the earlier Tribunal decision, in addition to calling again Dr Steadman, or other evidence to the same effect.
[14] Kallimanis and Linfox Australia Pty Ltd (Compensation) [2022] AATA 3737.
[15] Ibid, [28].
The Review Applications were heard by the Tribunal as presently constituted (‘the Tribunal’) on 28, 29 and 30 August 2023 (‘the Tribunal hearing’).
The Applicant appeared at the hearing in person and was represented by counsel.
The following witnesses gave oral evidence at the Tribunal hearing:
·the Applicant;
·Professor Dr Peter Steadman, Consultant Orthopaedic Surgeon;
·Associate Professor Dr Tillman Boesel, Pain Medicine Physician;
·Dr Martin Allan, Consultant Psychiatrist; and
·Dr Wasim Shaikh, Psychiatrist.
The following documents were before the Tribunal:
- Section 37 T-Documents, Application 2021/3157 (T1 – T97, pp. 1 – 407) filed on 9 June 2021 (Exhibit R1);
- Section 37 T-Documents, Applications 2022/2947 and 2022/3308 (T1 – 108, pp. 1 – 496) filed on 9 June 2021 (Exhibit R2);
- Joint Hearing Book (pp. 1 – 157) filed on 31 August 2022 (Exhibit R3);
- Letter of instruction to Dr Tim Ho, Specialist in Pain and Rehabilitation Medicine dated 27 August 2021;
- Report of Dr Tim Ho, Specialist in Pain and Rehabilitation Medicine dated 1 October 2021;
- Letter of instruction to Dr Martin Allan, Consultant Psychiatrist dated 21 October 2021;
- Report of Dr Martin Allan, Consultant Psychiatrist dated 8 November 2021;
- Letter of instruction to Associate Professor Dr Tillman Boesel, Pain Medicine Physician dated 28 February 2022;
- Report of Associate Professor Dr Tillman Boesel, Pain Medicine Physician dated 7 March 2022;
- Report of Dr Kwan Yeoh, Hand, Wrist and Upper Limb Surgeon dated 20 August 2020;
- Letter of instruction to Dr Martin Allan, Consultant Psychiatrist dated 7 July 2023;
- Report of Dr Martin Allan, Consultant Psychiatrist dated 11 July 2023;
- Applicant’s Statement dated 22 July 2023;
- Applicant’s Further Statement dated 28 July 2023;
- Curriculum vitae of Associate Professor Dr Tillman Boesel, Pain Medicine Physician undated;
- Applicant’s Treating Medical Reports as at 26 August 2021;
- Letter of instruction to Dr Wasim Shaikh, Medical Examiner and Consultant Psychiatrist dated 20 April 2023;
- Report of Dr Wasim Shaikh, Medical Examiner and Consultant Psychiatrist dated 26 May 2023;
- Applicant’s Statement of Facts, Issues and Contentions (‘ASFIC’) dated 19 August 2022;
- Respondent’s Statement of Facts, Issues and Contentions (‘RSFIC’) dated 2 June 2023;
- Respondent’s Submissions on Dismissal Application dated 18 May 2022;
- Applicant’s Written Submissions for Respondent’s Dismissal dated 24 June 2022;
- Respondent’s Application for Dismissal dated 28 August 2023;
- Respondent’s Final Submissions in Support of Dismissal Application dated 30 August 2023;
- Respondent’s Closing Submissions dated 6 September 2023;
- Applicant’s Written Submissions in Reply dated 8 September 2023; and
Outline of Respondent’s Submissions, Applications 2018/2681 and 2019/2338 dated 20 December 2019.The Tribunal has reviewed the evidence before it and refers to relevant materials below.
BACKGROUND
The Applicant was born in 1963 and is currently 60 years of age. In 2011, he commenced employment with the Respondent. In January 2017, the Applicant was employed as a Storeperson Grade 2 and was 2IC to the Team Leader in respect of the 3PL contract to Joint Logistics Command, Department of Defence and Naval, at Garden Island.[16] His work duties included sorting, lifting, packing, paperwork, and computer use.[17]
[16] Applicant’s statement, 22 July 2019, [5].
[17] Exhibit R1, T11, 90.
Work incident - 12 January 2017
On 12 January 2017, an incident report recorded the following:
At approximately 1000hrs today one of our employees [the Applicant] had felt a twinge in the left arm and as such was taken to the Medical Centre.
It was determined from there that [the Applicant] had to undergo additional Medical Treatment and as such the treating Physician has advised that [the Applicant] needs surgery to remedy the injury.
In his statement dated 22 July 2019, the Applicant described how the incident (‘the work incident’) occurred and the pain he consequently felt:[18]
… I was moving a crate so that it would sit on a pallet correctly. I did not realise how heavy the crate was. It did not have a “heavy item” sticker on it. When I went to lift and slide the crate, I felt sudden severe pain in my left elbow.
[18] Applicant’s statement, 22 July 2019, [19].
On 12 January 2017, the Applicant was examined by Dr Kwan Yeoh, Hand, Wrist and Upper Limb Surgeon, who diagnosed him as suffering from an ‘acute rupture left distal biceps tendon’ and recommended that he undergo a ‘repair left distal biceps tendon’.[19]
[19] Exhibit R1, T9, 74 – 75.
First compensation claim – 13 January 2017
On 13 January 2017, the Applicant lodged a claim for compensation (‘First compensation claim’) under the SRC Act in relation to ‘bicep tear at elbow level’ he claimed to have sustained on 12 January 2017 as a consequence of ‘sliding a crate’.[20] The part of the body injured was ‘upper left arm from elbow.’[21]
[20] Ibid, T11, 87, Question 10.
[21] Ibid, T11, 87, Question 11.
On 16 January 2017, the Respondent issued a Determination accepting liability for the Applicant’s left elbow condition, being an ‘acute rupture left distal biceps tendon’ pursuant to section 14 of the SRC Act (‘the left biceps tendon condition’).[22] Several Determinations were subsequently issued by the Respondent accepting liability to pay compensation for the Applicant’s medical treatment expenses.[23]
[22] Ibid, T14, 98 – 103.
[23] Ibid, T23, T28, 118 – 121, 129 – 132.
On 19 January 2017, the Applicant underwent repair of the left distal biceps tendon (‘left biceps tendon repair surgery’) performed by Dr Yeoh.[24]
[24] Ibid, T21, 113 – 114.
Following the work incident, the Applicant was off work for about three months and then returned to work on light duties and restricted hours. He gradually progressed to full-time hours, but he remained on restricted duties as the injury to his bicep prevented heavy lifting.[25] The Respondent continued to compensate the Applicant in respect of the left biceps’ tendon condition.[26]
[25] Applicant’s statement, 22 July 2019, [27].
[26] Ibid, [24].
The Applicant continued to suffer pain and restriction of movement in his left elbow and tingling in the fingers of his left hand for months after the biceps repair surgery.[27] In about mid-2017, he began to feel pain in his left shoulder that he had not previously experienced.[28]
[27] Ibid, [28].
[28] Ibid, [30].
On 31 January 2018, the Applicant underwent an independent medical examination conducted by Dr Peter Steadman, Orthopaedic Surgeon. In his report dated 23 February 2018, Dr Steadman stated that the Applicant complained of ‘significant symptoms’ in his left arm which he had experienced following the surgery, including ‘a painful left shoulder, irritation of his ulnar nerve, his left hand has been going to sleep, and he is suffering from lateral epicondylitis of the elbow or tennis elbow.’ Dr Steadman concluded that it was unlikely that these symptoms ‘would [be] a direct result of either overuse or use activities or the original injury. The initial mechanism of injury would not cause the changes of the lateral epicondyle and the features on the nerve conduction studies show that the ulnar nerve has some entrapment proximal cubital tunnel. This is not likely to be work related.’[29]
[29] Exhibit R1, T58, 220 – 228.
On 26 March 2018, the Respondent issued a Determination finding the Applicant to have no ongoing entitlement to the payment of compensation for medical treatment expenses and incapacity benefits pursuant to sections 16 and 19 of the SRC Act arising from the left biceps tendon condition.[30]
[30] Ibid, T61, 233 – 239.
In a Reviewable Decision dated 8 May 2018, the Determination dated 26 March 2018 was affirmed (‘the First Reviewable Decision’). [31]
[31] Ibid, T62, 240 – 247.
On 14 May 2018, the Applicant applied to the Tribunal for review of the First Reviewable Decision.
On 22 August 2018, the Applicant underwent a left cubital tunnel release performed by Dr Yeoh.[32] Following this surgery, the tingling he felt in his left fingers improved for some time, but it then returned.[33]
[32] Ibid, T65, 255 – 257.
[33] Applicant’s statement, 22 July 2019, [41].
In late 2018 and early 2019, the Applicant attended a series of meetings at the request of the Respondent. He was told that he needed to provide full medical clearance from his doctors so that he could return to his pre-accident duties. He was unable to provide this due to continuing problems with his left elbow and left shoulder.[34] In March 2019, the Applicant’s employment with the Respondent was terminated.[35]
[34] Ibid, [42].
[35] Ibid, [43].
Second compensation claim – 9 January 2019
The Applicant lodged a further claim for compensation on 9 January 2019 (‘Second compensation claim’) in relation to ‘rupture of biceps tendon at left arm, ulnar neuritis at left arm, axillary nerve lesion at left arm, lateral epicondyle at left arm’ (‘other left arm conditions’) he claimed he sustained as a consequence of the incident of 12 January 2017.[36] The part of the body injured was ‘left arm and left shoulder’.[37]
[36] Exhibit R1, T74, 282 – 286, Questions 19 and 21.
[37] Ibid, T74, 282 – 286, Question 20.
On 17 January 2019, the Respondent issued a Determination denying liability under section 14 to pay compensation in relation to the Applicant’s other left arm conditions.[38]
[38] Ibid, T75, 287 – 303.
On 12 April 2019, the Respondent affirmed the Determination dated 17 January 2019 (‘the Second Reviewable Decision’).[39]
[39] Ibid, T81, 313 – 330.
On 30 April 2019, the Applicant applied to the Tribunal for review of the second Reviewable Decision.
First Tribunal decision – 11 June 2020
In its decision dated 11 June 2020, the Tribunal, constituted by Deputy President Constance and Dr Bygrave (‘the First Tribunal’), affirmed both Reviewable Decisions.[40] It found that as at 8 May 2018 (the date of the First Reviewable Decision) the Applicant had no present entitlement to payment of compensation for medical treatment expenses and incapacity benefits pursuant to sections 16 and 19of the Act arising from the accepted left biceps tendon condition.[41] In relation to the Second Reviewable Decision, the First Tribunal found that the Respondent was not liable under section 14 of the Act to compensate the Applicant for his other left arm conditions.
[40] Kallimanis and Linfox Australia Pty Ltd (Compensation) [2020] AATA 1796; Exhibit R1, T87, 341 – 378.
[41] Ibid, [62] and [175].
The Tribunal relevantly determined:
(1)that by 28 March 2018, the Applicant's accepted left biceps tendon condition had been satisfactorily repaired;[42]
(2)since 26 March 2018, there was no medical treatment obtained by the Applicant that was reasonable for him to obtain in respect of the left biceps tendon condition;[43]
(3)from 26 March 2018, the Applicant has suffered from no incapacity for employment;
(4)the Applicant’s other left arm conditions were not compensable for the purposes of section 14 of the SRC Act;[44] and
(5)made factual findings as to the physiological conditions suffered by the Applicant in the context of his reported pain conditions.
LEGISLATIVE FRAMEWORK
[42] Ibid, [52].
[43] Ibid, [50].
[44] Ibid, [109], [135], [174].
Liability to pay compensation
The entitlement to compensation for an employee under the SRC Act is conferred by section 14(1) of the SRC Act which provides that a respondent is:
… liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
‘Injury’ is defined in section 5A of the SRC Act:
(1)…
(a)a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee's employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee's employment.
A ‘disease’ is relevantly defined in section 5B of the SRC Act to mean:
(1)…
(a)an ailment suffered by an employee; or
(b)an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee's employment by the Commonwealth or a licensee.
(2)In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee's employment by the Commonwealth or a licensee, the following matters may be taken into account:
(a)the duration of the employment;
(b)the nature of, and particular tasks involved in, the employment;
(c)any predisposition of the employee to the ailment or aggravation;
(d)any activities of the employee not related to the employment;
(e)any other matters affecting the employee's health.
This subsection does not limit the matters that may be taken into account.
(3) In this Act:
‘significant degree’ means a degree that is substantially more than material.

An ‘ailment’ is defined in section 4 of the SRC Act to mean:
… any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
‘Aggravation’ includes acceleration or recurrence.
ISSUES FOR DETERMINATION
The issues for determination are as follows:
Preliminary Issue
1) Should the Review Applications be dismissed pursuant to section 42B of the AAT Act?
First Review Application
1) Does the Applicant suffer from a chronic pain syndrome condition?
2) If yes to 1), and it is an ‘injury’, has the Applicant’s chronic pain condition arisen out of, or in the course of his employment with the Respondent such as to give rise to an entitlement to compensation pursuant to section 14 of the SRC Act?
3) In the alternative, if yes to 1) has the Applicant's chronic pain condition arisen secondary to any accepted condition under the provisions of the SRC Act?
Second Review Application
1) Does the Applicant suffer from a psychiatric condition which is ‘outside the boundaries of normal mental functioning and behaviour’?
2) If yes to 1), has the Applicant’s psychiatric condition developed secondary to a compensable condition under the provisions of the SRC Act?
Third Review Application
1) Does the Applicant suffer from the effects of any accepted psychological condition under the provisions of the SRC Act?
2) If yes to 1), has the Applicant suffered an impairment, that is permanent in respect of any accepted psychological condition under the provisions of the SRC Act?
3) If yes to (2), has the Applicant suffered from an impairment of 10% or greater, such as to give rise to an entitlement to the payment of lump sum permanent impairment compensation under section 24 of the SRC Act?
APPLICANT’S EVIDENCE
Pain in left upper limbs following surgery
In his statement dated 22 July 2019, the Applicant described the pain he experienced in his left upper limbs following the left biceps repair surgery:[45]
Months after the surgery I continued to suffer from pain and restriction in my left elbow. I was also experiencing tingling in my left fingers.
By about mid 2017 I also had pain up into my left shoulder. I was told by Dr Yeoh that this was probably caused by the fact that I was not able to use my left arm normally because of my left elbow.
It felt like my whole left arm was becoming useless. I had never felt anything like it before. I was worried it would keep getting worse.
In September 2017 I was referred to sports physician Dr Paul Annett. Dr Annett suggested to me that I had some kind of “pain syndrome” related to my left elbow. He suggested that I keep doing the exercises I had been given by the physiotherapist and to try and reduce my medication. He also suggested that I might need injections.
…
I continue to suffer pain and restriction of movement in my left elbow and left shoulder. I experience a burning pain down from my left shoulder to my elbow. The pain is worse if I lift anything heavy in my left arm or if I knock or rest my left elbow on something. I always wear a brace to protect my elbow
[45] Applicant’s Statement, 22 July 2019, [28]-[31], [55].
When he gave oral evidence at the First Tribunal hearing in November 2019, the Applicant confirmed that he felt pain in his left shoulder at the time he was injured and that he informed Dr Han, his General Practitioner, of this on the same day. He believes he also informed Dr Yeoh.[46] He told the First Tribunal that during the latter half of 2017 he was taking Panadeine Forte to relieve the pain in his left bicep, elbow, and shoulder. By the end of 2017, his shoulder and elbow were equally troublesome,[47] and he continued to take medication for pain.[48] In May 2019 he continued to suffer pain in and around his left elbow and pain in his left shoulder.[49]
[46] Transcript of proceedings, 5 November 2019, 39.
[47] Ibid, 60-61.
[48] Ibid, 47.
[49] Ibid, 48.
The Applicant described to the First Tribunal the sites of the pain/numbness he was experiencing at the time of the hearing in November 2019:[50]
·numbness from the inside to the outside of his left elbow;
·pain and a ‘pinched nerve feeling’ from just below his left elbow to a point about 15cm down the inside of his forearm, also described as the middle of the forearm;
·numbness and tingling all the way down the left forearm to the middle, ring and little fingers;
·pain from the inside of the left elbow up the outside of the upper arm to the back of the left shoulder,[51] described as a ‘pull pain’.[52]
[50] Kallimanis and Linfox Australia Pty Ltd (Compensation) [2020] AATA 1796, [77].
[51] Transcript of proceedings, 5 November 2019, 50-53.
[52] Ibid, 54.
He said these pains were present all the time and that his left hand becomes fatigued.[53]
[53] Ibid, 53.
In his statement dated 28 July 2023, the Applicant described the ‘chronic pain’ he suffers in his left upper limbs and shoulder:[54]
[54] Applicant’s Further Statement, [44]-[52].
Chronic pain
I continue to suffer shoulder pain radiating down the back of my arm. My shoulder aches and I also get a burning pain.
I experience burning pain in my left upper arm.
My lower arm feels numb. I get pins and needles into my hand. I regularly experience aching, burning, sharp pain in my left arm from my elbow down. I experience electric shock pain in my left arm and a stinging sensation when I move my left arm or lean on anything.
lf I try and do anything with my left arm, l find the pain gets much worse.
I am woken up by the pain in my left elbow, arm, and shoulder. I rarely get a good night's sleep.
I experience regular headaches. These come on when the pain is at its worst.
I have had to change almost everything I do to accommodate my injury.
I tend to do most things now much slower and take rest breaks in between.
I am now always conscious of pain in my left elbow, arm, and shoulder.
The Applicant also outlined in his statement the advice he has received from his treating doctors in relation to his ‘chronic pain’:[55]
I had previously been told by sports physician Dr Annett that I had some kind of ‘pain syndrome’ related to my left elbow back in 2017 ... I did not think much of it. I just wanted to get better. The Respondent was paying my medical expenses and was providing suitable duties at the time.
My GP Dr Han has also mentioned this to me and included reference to ‘chronic pain syndrome’ in the Chronic Disease Management plans [dated 14 March 2018 and 5 April 2019] issued after the Respondent stopped paying my medical expenses.
[55] Ibid, [10]-[11].
During cross-examination at the Tribunal hearing, the Applicant was questioned about what he reported to Dr Paul Annett in November 2017 in relation to the pain he was then experiencing in his left upper arm and shoulder. He said that he described to Dr Annett pain in his left upper arm, elbow and shoulder, and symptoms in his hand, specifically pins and needles.[56]
[56] Transcript of proceedings, 28 August 2023, 28.
The Applicant confirmed that he told Dr Roger Pillemer in August 2018 that he had significant sensitivity on the medial side of his left elbow associated with pins and needles radiating down to the fourth and fifth fingers of his left hand, discomfort in his left shoulder with pain going as high as nine out of ten, and discomfort over the lateral aspect of his left elbow radiating down his forearm towards the wrist, and these symptoms started just after the surgery in early 2017.[57]
[57] Ibid, 30-31.
Psychological condition
In his statement dated 28 July 2023, the Applicant described the ‘Mental injury’ he sustained following the work incident in January 2017:[58]
[58] Applicant’s Further Statement, [29]-[43].
Mental injury
Since my initial bicep tendon injury on 12 January 2017, l have found my mental health has been impacted dramatically by my pain and disability.
This became particularly apparent to me in the 6-12 months after the initial incident as I realised that I was not recovering as I expected I would and that I could not do the things that I could do before. Not being able to get back to my preinjury work has made this worse.
Everything started to get on top of me. I found myself becoming increasingly irritable and angry about my circumstances. Sometimes I would cry to myself.
Over the years since my injury, I have noticed that this is affecting my relationship with my family and my general attitude to life. I used to be a happy person and not an angry person. I have become irritable and argue with my wife and family.
I continue to feel anxious and depressed.
I struggle to sleep because of my pain, and I lie awake thinking about my circumstances.
I no longer sleep with my wife.
I feel irritable and frustrated a lot of the time.
I no longer socialise very much. I struggle to motivate myself to go out. My wife will prompt me to do things, but l tend to avoid socialising now, except with my immediate family.
I have difficulty concentrating. lt now takes me a long time just to complete my regular job applications.
My wife often must encourage me to do things at home and to look after myself. I often struggle now to motivate myself to do much.
I often now feel unhappy, anxious, overwhelmed and withdrawn. I get frustrated and irritated with people.
I feel depressed that I have been unable to return to work.
My GP Dr Han mentioned the possibility psychological treatment for the effect of my injury a while ago, but l was not keen to pursue it at the time. I think now that I probably need to although I am not sure I can afford it.
Before my injury I always thought of myself as quite a resilient person. I never dreamed that I would need to take medication or seek psychological treatment
MEDICAL EVIDENCE
1.Chronic pain condition
The following is a chronological outline of the assessments and reports provided by medical practitioners and specialists in relation to the Applicant’s claimed chronic pain condition.
May 2017
On 30 May 2017, the Applicant attended a post-surgery appointment with Dr Yeoh who provided a report of the same date, in which he stated:[59]
I saw [the Applicant] again today. The injection to the left radial tunnel [performed 20 April 2017] did not make any difference to his pain and he continues to have ongoing left elbow pain vaguely around the left elbow. Some of this is at the distal biceps tendon anteriorly in the elbow, but other areas are laterally and medially around the elbow. Some of this suggestive of cubital tunnel syndrome/ulnar nerve irritation, with shooting pain down towards the ulnar side of the wrist. However, this is not reproduced on clinical examination and the examination findings are more suggestive of a general overuse problem.
I think that [the Applicant’s] current left elbow problem probably relates to doing too much too early and I have recommended that he take one week completely off from exercises and therapy. This will allow everything to settle down, after which he can then restart at a lower rate.
[59] Exhibit R2, T30, 138.
July and August 2017
Dr Steadman assessed the Applicant at the request of the solicitors for the Respondent on 12 July 2017 and 31 January 2018. He provided reports dated 28 July 2017,[60] 18 August 2017,[61] 23 February 2018,[62] 17 September 2018,[63] and 7 November 2018,[64] and gave oral evidence at both Tribunal hearings.
[60] Ibid, T37, 158 – 166.
[61] Ibid, T39, 169 – 174.
[62] Ibid, T57, 239 – 247.
[63] Ibid, T66, 277 – 288.
[64] Ibid, T69, 293 – 295.
During examination in chief at the Tribunal hearing, Dr Steadman was asked whether he has qualifications, experience or specialist knowledge that would allow him to express opinions about ‘pain conditions’. He stated: [65]
Well, in terms of the modern day, I’m not a pain specialist, but as an orthopaedic surgeon, naturally we see and treat and diagnose pain as part of our day to day work. When people have surgery, they’re in pain and we often have to manage them. We treat patients with injuries, and we observe them to be developing pain type conditions. And depending on what’s going on, we request services of other people who are involved in pain care that can assist, if there’s no surgical treatment we can provide that assists with that pain. So what I mean by that, is if someone came to the hospital with a broken leg and they got pain overnight, if they had a broken tibia and they’ve got compartment syndrome, we would release the compartment syndrome because that would (sic) the surgical treatment for acute pain. But equally we might see people who have had surgery, and they’re in the process of gradually recovering each day with their pain improving, And the adjustment of their medications is left to the anaesthetic pain service rather than – and that’s a, sort of, tertiary service that’s available in most hospitals these days, and often done by the anaesthetist and people who are involved and interested in that sub-speciality …
[65] Transcript of proceedings, 29 August 2023, 90.
On each of the two occasions, Dr Steadman examined the Applicant (July 2017 and January 2018), he asked him to mark on diagrams of the human body where he was experiencing pain. In July 2017, the Applicant did not mark the area of the left shoulder. During his oral evidence, Dr Steadman confirmed that when he examined the Applicant in July 2017, he told him that he ‘had a painful left arm’ which he thought was ‘consistent with his injury and treatment’.[66]
[66] Ibid, 91.
In his first report dated 28 July 2017, Dr Steadman stated:[67]

As well as the torn biceps tendon he has ulnar nerve pathology, which all appeared to have come on around the time of the injury…
The condition [torn left biceps tendon and ulnar nerve irritation] is a result of the left elbow injury sustained on 12.01.2017. I am not aware of any pre-existing factors or non-employment factors that have contributed to this.
[67] Exhibit R1, T36, 158.

Dr Steadman provided a supplementary medical report dated 18 August 2017, in which he stated:[68]
The information provided indicates that, in addition to the healing distal biceps tendon rupture repair, he has MRI changes consistent with lateral epicondylitis of the elbow. Most of the clinical findings that I observed indicate that there is restricted range of motion and some scar complications along with some sensory alterations around the surgical area.
…
The remainder of the signs that I observed, including his range of motion and discomfort and sensory loss, may or may not ever recover fully. The process of reaching maximal medical improvement will likely take another four months.
[68] Ibid, T38, 165.
September to November 2017
The Applicant saw Dr Paul Annett, Sports Physician, who provided a report dated 5 September 2017 in which he observed:[69]
[The Applicant] unfortunately sustained a left biceps rupture on 12 January this year lifting some crates. He tells me he had surgery within a week and was immobilised for the best part of twelve weeks. Unfortunately, since this time he has continued to complain of fairly generalised pain around the elbow. At various times this may occur laterally, anteriorly, medially and even posteriorly. He has also described pain around his forearm that radiates into his wrist… [The Applicant’s] symptoms appear to be more widespread than a simple case of tennis elbow. It seems to look more like a post injury pain syndrome with associated mild stiffness, irritability and hypersensitivity of his left elbow. His clinical areas of concern are widespread. Despite the findings on the MRI scan I am not clinically convinced that he has a strong component of lateral epicondylosis, and am not sure that performing a PRP injection is going to necessarily improve his pain. Today I tried to reassure him that this kind of injury after surgery may take up to 12 months to improve, and there is no reason he cannot continue to use the elbow and slowly increase the amount of load is doing in his exercises. We discussed pain management strategies, although I do not think [he] is quite at this point. A simple measure we are going to trial regular Panadol Osteo, 2 tablets twice daily and try to keep him away from Panadeine forte.
[69] Ibid, T41, 175 – 176.
In a further report dated 17 October 2017, Dr Annett reported:[70]
[The Applicant] continues to have grumbling pain in his left elbow which has not improved that much over the last six weeks… [He] still has grumbling non specific elbow pain post surgery, most likely a combination of stiffness and muscle weakness. He is reasonably pain focused, although at the same time feels like he is able to cope with the pain. Today, I spent a lot of time simply encouraging normal function.
[70] Ibid, T43, 178.
In a report dated 28 November 2017, Dr Annett observed that the Applicant:[71]
continues to describe generalised pain which is at times worse laterally, anteriorly and posteriorly and even medially. He is also describing some shoulder pain. He tells me he has always had lateral pain since the time of the operation… Once again, [he] looks to be suffering from a chronic pain syndrome relating to his elbow, although I accept he does have lateral pain and signs of common extensor tendinopathy on his MRI scan.
[71] Ibid, T47, 192
A medical certificate prepared for the Applicant by Dr George Han, dated 3 October 2017, recorded the diagnosis of the Applicant's condition as ‘L biceps injury - in rehab due to chronic pain’.[72]
[72] Ibid, T4, 37.
On 14 November 2017, the Applicant was assessed by Dr Nicholas Burke, Consultant Occupational Physician for the purposes of his engagement with a rehabilitation program. Dr Burke provided a report dated 24 November 2017, in which he stated:[73]
[The Applicant] continues to report ongoing symptoms in both the left shoulder and left elbow region. In the left shoulder he describes pain that is anterior shoulder pain with radiation down the anterior aspect of his left upper arm and into the cubital fossa. He also describes a pain extending down the back of his left upper arm and into the region of his posterior elbow. He did have some pins and needles and tingling mainly affecting the inner aspect of his left forearm and extending into the ulnar two digits however this has significantly improved.
…
The current medical diagnosis is persistent pain in the left cubital fossa region associated with the surgical repair of the distal biceps tendon rupture and left shoulder pain most probably related to inflammation in the region of the proximal biceps tendon.
The prognosis particularly in relation to his elbow symptoms is guarded. The most recent MRI indicates tendinopathy of the distal biceps tendon and some degree of fraying.
Dr Yeoh indicated that there was evidence of tendinopathy affecting the biceps tendon at operation. Overall it appears likely that in the longer term he will continue to experience symptoms particularly associated with heavier lifting, carrying, pushing and pulling activities.
[73] Ibid, T46, 206.
In a medical certificate written by Dr Han dated 11 December 2017, the Applicant’s condition was reported as ‘L biceps injury. Slow to resolve and onset of Chronic Pain Syndrome’.[74]
[74] Ibid, T4, 41
January 2018
In a report dated 11 January 2018, Dr Yeoh reported the following in relation to the Applicant’s post-surgery condition:[75]
12 months left post left distal biceps tendon repair. Ongoing left shoulder pain (subacromial impingement, biceps tendinopathy). Ongoing left elbow pain (distal biceps tendinopathy, lateral epicondylitis, cubital tunnel syndrome, possible radial tunnel syndrome).
…
I saw [the Applicant] again today with his wife. He has ongoing pain in the left elbow and left shoulder, and this remains a very difficult problem to solve. While the initial problem was a distal biceps tendon rupture due to lifting at work in a tendon with age-related changes, this has now spread to other areas of the upper limb. He has had ongoing pain due to ongoing degenerative changes in the repaired tendon and, as this has affected the mechanics of the upper limb as a whole, now has secondary problems with other tendons and regions of the left upper limb.
More specifically, in the left shoulder, he has symptoms and clinical signs on examination consistent with severe subacromial impingement and moderate bicipital tendinopathy in the biceps groove. In particular, the subacromial impingement and associated bursitis cause him significant pain.
In the left elbow, he has symptoms and clinical signs consistent with ulnar nerve compression in the cubital tunnel (cubital tunnel syndrome) with pain and tingling from the medial part of the elbow down to the ring and little fingers. He also has signs of ongoing tendinopathy in the distal biceps tendon and lateral epicondylitis (tennis elbow). He also has tenderness over the radial tunnel suggestive of radial tunnel syndrome, but this has not responded in the past to an injection, so it is possible that the symptoms in this area are referred from the lateral epicondylitis rather than being a separate problem.
[75] Ibid, T52, 200 – 201.

On 31 January 2018, the Applicant had a further appointment with Dr Steadman. When asked to mark on a diagram of the human body where he was experiencing pain, the Applicant marked the front and back of the left shoulder and indicated that the pain extended up towards his neck and down towards his elbow.
February 2018
On 12 February 2018, an MRI was conducted by Dr Wendy Brown. She reported the following:[76]
1.High-grade bursal-sided partial tear of the anterior fibres of the supraspinatus tendon at the enthesis measures 1cm in the anterior-posterior diameter. Articular-sided fibres are frayed. No medial tendon retraction or muscle atrophy.
2.Prominent acromial bony spur.
3.Moderate degenerative change acromioclavicular joint.
[76] Exhibit R2, T55, 235 – 236.
In his report dated 23 February 2018, Dr Steadman stated:[77]
[The Applicant] is complaining of significant symptoms in his left arm. He says he has been complaining of them ever since the injury occurred. He says that he has had a painful left shoulder, irritation of his ulnar nerve, his left hand has been going to sleep and he is suffering from lateral epicondylitis of the elbow or tennis elbow. He said that the ulnar nerve is probably the most troublesome thing followed by the shoulder. He saw Dr Annett who diagnosed tendinitis. He feels that the shoulder grabs and this is the result of the way the arm has been held. He reports he has had no other investigations. He has not had a nerve conduction study nor had any other tests such as an MRI of the upper limb which I have requested.
Currently he complains that he has ulnar nerve symptoms. The ulnar nerve symptoms go down the medial side of the forearm and go to the little finger. The symptoms on the lateral side of the elbow go from the lateral epicondyle down the back of the forearm to the level of the wrist. The left shoulder symptoms are associated with most activities but in particular worse when he lifts the arms to the side.
He suffers from a rotator cuff tear and AC joint degeneration of the left shoulder.
…
He suffers from a torn biceps tendon but reportedly still has ongoing lateral epicondylitis and ulnar nerve symptoms which he believes are related to the elbow.
[77] Exhibit R1, T58, 220 – 228.
In relation to the cause of this condition, Dr Steadman stated:[78]
It is unlikely … that this would have a direct result of either overuse or use activities or the original injury. The initial mechanism of injury would not cause the changes of the lateral epicondyle and the features on the nerve conduction studies show that the ulnar nerve has some entrapment proximal cubital tunnel. This is not likely to be work related.
Overall then in my opinion it is difficult to justify that the left shoulder … [is] in any way work-related.
[78] Ibid.
July 2018
Dr Yeoh provided a further report dated 12 July 2018, in which he reported:[79]
[The Applicant’s] symptoms continue, despite ongoing physiotherapy and splints. He continues to have symptoms and clinical signs consistent with cubital tunnel syndrome and left shoulder subacromial impingement and a possible supraspinatus tear. These are both issues that can be dealt with operatively.
However, he continues to have problems anteriorly in the elbow at the distal biceps tendon and over the lateral part of the elbow at the common extensor origin. These are not issues that can be dealt with operatively.
[79] Ibid, T63, 248.
August 2018
On 16 August 2018, at the request of his solicitors, the Applicant was examined by Dr Roger Pillemer, Orthopaedic Surgeon. In his report of the same date, Dr Pillemer observed:[80]
As far as the biceps repair is concerned in relation to [the Applicant’s] left elbow, he is aware of a feeling of slight stiffness in the elbow and the fact that his biceps is still more prominent in his upper arm.
A further concern is significant sensitivity on the medial side of his left elbow associated with pins and needles radiating down into the fourth and fifth fingers of his left hand. He says that these symptoms have been present from after his surgery.
A further concern is with his left shoulder region where he has significant discomfort particularly in the posterior aspect of his shoulder extending down to his biceps. These symptoms can go as high as 9/10. He feels reasonably comfortable when he is simply resting.
He also has residual discomfort over the later aspect of this left elbow region with discomfort radiating down the dorso-lateral aspect of his upper forearm towards the wrist.
…
[The Applicant’s] main injury at the time was a rupture of the distal insertion of his biceps tendon which has now been satisfactorily repaired with slight loss of flexion of his elbow and partial re-rupture of the biceps repair.
In addition he has significant symptoms of ulnar neuritis on the left side and is due to have an ulnar nerve release/transposition on 22 August 2018.
In my opinion [the Applicant] has evidence of an axillary nerve lesion on the left side as evidenced by the typical findings noted above.
[80] Ibid, T64, 249 – 253.
On 22 August 2018, the Applicant underwent a left cubital tunnel release performed by Dr Yeoh.[81]
[81] Ibid, T65, 254.
September 2018
In a supplementary report dated 17 September 2018, Dr Steadman reported:[82]
[The Applicant] has a painful left arm from his shoulder to his little finger. As we know, he sustained an acute rupture of his left biceps tendon and this was a consistent work injury.
Subsequently his left arm became more troublesome and this initial elbow condition was superseded by a host of age-related degenerative conditions and findings including rotator cuff tendinitis, lateral epicondylitis and ulnar nerve entrapment. These clinical conditions (although he has carpal tunnel syndrome which is asymptomatic) he reports he had from the very minute of the injury.
…
It is also unusual that, given the duration since the troublesome new (or old, if you take his position) complaints halted his recovery, he reports his pain is still 8-9/10 in all the conditions and even with all the treatment, particularly in the tennis elbow where there should have been substantial improvement by now. This raises issues of clinical inconsistency going forward. Were it not for the other problems in the left arm in my opinion he would be back at work doing largely his normal job. This is the nature of biceps tendon rupture and long-term recovery
[82] Ibid, T67, 258 – 269.
October 2018
In a report dated 12 October 2018, Dr Yeoh reported:[83]
I have seen [the Applicant] a couple of times since his surgery. Some of his symptoms of cubital tunnel syndrome have settled down although he continues to have some pain anteriorly around the biceps tendon along with the intermittent swelling. He continues to have problems with his left shoulder and subacromial impingement. This is probably where we would expect them to be at this time anyway, with some of his symptoms settled and some of them still continuing.
I have recommended that he continue with physiotherapy for his left elbow and give this at least 3-6 months to recover. We can tackle his left shoulder with targeted strengthening and scapulothoracic dysrhythmia correction when his elbow feels a little stronger, although he is allowed to start this if he feels ready for it now
[83] Ibid, T68, 270.
November 2018
Dr Steadman provided a further report dated 7 November 2018 in response to surveillance carried out in relation to the Applicant. Dr Steadman observed:[84]
There did not seem to be any impediment to the day-to-day activities required to function normally in the community.
…
I would maintain that his left elbow biceps tendon rupture has now recovered and that any reported impediments from the multitude of age-related conditions, or is now non- physical, have been thrown in more doubt as to their veracity, because of what appears to be normal function of the upper limbs.
[84] Ibid, T70, 274 – 276.
February 2019
In a report dated 1 February 2019, Dr Yeoh provided an update with respect to the Applicant's symptoms:[85]
Interestingly, he has been having a burning pain over the posterior aspect of his elbow which is not present prior to the operation. This is away from the wound, ulnar nerve and biceps tendon, so I cannot really explain the cause of this. When I asked him whether he thought this might be related to his shoulder rather than his elbow, it seems unclear and the pain seems to be reproduced with direct pressure to the muscle between the shoulder and the elbow, indicating that perhaps there is some other cause separate to the joints.
…
[The Applicant] continues to have left ulnar nerve symptoms, now associated with subluxation after a cubital release. He should continue with general rehabilitation of the elbow and shoulder, and I have recommended that he continues with the elbow gel pad and perhaps consider an extension splint for the elbow at night. He also had posterior elbow and arm pain which I cannot explain, but if this does not settle down, he may need the assistance of a pain specialist. He continues to have some symptoms associated with the left supraspinatus tendon and we are repeating the MRI scan in order to assess whether there has been any increase in the tear size since the previous MRI a year ago.
[85] Ibid, T76, 304.
On 8 February 2019, the Applicant underwent an MRI of his left shoulder which revealed the following pathology:[86]
1.Mild progression of the supraspinatus tendon tear predominantly on the basis of posterior extension of the non retracted anterior avulsion as a partial thickness articular surface tendon avulsion with mildly progressed interstitial delamination tearing in its mid and posterior fibres as detailed.
2.Progressed rotator interval/articular segment LHB tendinosis.
3.Stable likely attributional SLAP 2B tear of the superior labrum on the background of sublabral sulcas.
4.Stable AC joint degeneration.
5.Stable small SASD bursal fluid.
[86] Ibid, T77, 305.
In a further report dated 13 February 2019, Dr Yeoh recorded:[87]
I saw [the Applicant] again today with his wife. He clarifies that the posterior pain the left elbow is actually an extension of the medial pain, rather than a separate problem. He has also noted left shoulder pain to continue, although it is not as bad as what he feels at the elbow.
…
I have explained that increase in tear size is fairly common and when it becomes a full thickness tear, especially when it starts retracting, then it is more urgent that we fix it as it will continue increasing in size and causing problems down the line. There is no urgency in deciding what to do with it now, but it if is causing him pain, then certainly serious consideration could be made for an arthroscopic rotator cuff repair, which will be relatively simple with a small tear size.
[87] Ibid, T78, 306.
March 2019
Dr Steadman provided a further report dated 14 March 2019, in which he stated:[88]
I would maintain that the inability to return to work is not physical with the expansive host of degenerative findings only fitting in with significant multifactorial behavioural based issues and are not either acute or consequential to the lifting which created the distal biceps avulsion.
[88] Ibid, T80, 309 – 312.
May 2019
Dr Yeoh provided a further update dated 15 May 2019, in which he reported:[89]
[The Applicant’s] left shoulder is also causing him ongoing pain in the examination is consistent with pain from supraspinatus and from subacromial impingement. As you know, there is a high-grade partial thickness tear which is increasing in size on serial MRI scans.
I have had a discussion with him about further treatment options. At this stage, his elbow doesn't really seem to be settling with nonoperative management, so it would be reasonable to treat this surgically. I have recommended an anterior transposition of the ulnar nerve. At some stage in future, if his shoulder continues to cause him problems, then an arthroscopic subacromial decompression, acromioplasty and rotator cuff repair can be performed.
[89] Ibid, T82, 331.
Dr Pillemer provided a further report dated 16 May 2019, in which he stated:[90]
I read [the Applicant’s] … symptoms as he described them to me in August 2018 and he feels that the pins and needles in the medial digits of his left hand have improved slightly, but otherwise he does not feel that there has been much in the way of improvement. He still gets significant discomfort in the posterior elbow region and the medial side of his elbow, and he still has the pins and needles radiating down into the fourth and fifth fingers of his left hand.
He still has significant ongoing discomfort in his left shoulder region indicating the main discomfort in the posterior aspect of the shoulder extending down the lateral aspect of his arm towards his elbow. Once again he feels his symptoms can go as high as 9/10. He is again reasonably comfortable when he is simply at rest.
The discomfort over the lateral aspect of his elbow extending down his forearm seems to have settled down at this stage.
[90] Ibid, T83, 332 – 336.
In his report dated 23 May 2019, Dr Yeoh stated:[91]
At this stage, [the Applicant] has ongoing issues with his left shoulder. I have recommended a left elbow ulnar nerve anterior transposition. When he has recovered from this, I have then recommended that he have a left shoulder arthroscopic rotator cuff repair. While I think these will help with his current symptoms, there is of course no guarantee that he will not develop any other symptoms related to other conditions around these joints as has happened. In the past, and there is still a change (sic) he will have some ongoing pain.
[91] Ibid, T84, 337 – 338.
At the Respondent’s solicitors’ request, Dr Yeoh provided a further report dated 28 May 2019, in which he stated:[92]
Since the operation, his numbness and tingling attributable to the left cubital tunnel syndrome have subsided, but he has continued to have surgical site pain, which is likely coming from ongoing subluxation of the ulnar nerve around the elbow. Therefore, I have recommended an anterior transposition of this nerve to alleviate the symptoms.
[92] Ibid, T85, 339.
June 2020
In a GP Management & Team Care Plan completed by Dr Han dated 10 June 2020, it was recorded:[93]
19.11.17 Repair of rupture L biceps tendon (work injury on 12.1.2017).
Subsequent complication of chronic pain syndrome. Shoulder & elbow & arm disabilities…
[93] Ibid, T86, 340.
August 2020
Dr Yeoh provided a further report dated 20 August 2020 in which he stated:[94]
Thank you for referring [the Applicant] back to me regarding his left upper limb pain. He continues to have pain over the ulnar nerve aspect of the elbow, but also more broadly around the posterior aspect of the elbow and anteriorly at the distal biceps tendon repair site. He continues to have pain over the superolateral area of the left shoulder. These are causing him significant distress and when I examined him, he certainly has some ulnar nerve subluxation at the elbow and signs of shoulder pain consistent with a rotator cuff tear. However, the elbow pain is far more than just the ulnar nerve or distal biceps tendon. It does not seem to relate to any one particular anatomical region.
Overall, while I think that his ulnar nerve subluxation is contributing to some of his left elbow pain, I think this is a fairly minor contributor. I do not think that resolving the subluxation would help with the overall condition of the elbow.
I think that a rotator cuff repair for his left shoulder may assist his pain, but I am concerned given his previous post-operative courses that he will do poorly after the operation with ongoing stiffness and chronic pain.
I think that his biggest problem at the moment is managing his chronic pain and this is making it difficult to function with everyday life, but also making management difficult from a medical perspective…
[94] Ibid, T88, 379 – 380.
September 2021
On 9 September 2021, at the request of his solicitors, the Applicant was examined by Dr Tim Ho, Pain Medicine and Rehabilitation Medicine Physician and provided a report dated 1 October 2021.[95]
[95] Joint Hearing Book, 132 – 139.
Dr Ho documented the following history as the basis for his opinion and diagnosis:[96]
[The Applicant] is a 58-year-old right-handed gentleman with chronic left upper extremity pain on background of lifting injury during work; and sustained the following injuries:
·Left biceps tendon rupture at elbow; and
·Left cubital tunnel syndrome and ulnar nerve entrapment.
[96] Ibid, 133.
Dr Ho diagnosed the following:[97]
My diagnoses for [the Applicant’s] chronic pain syndrome are: -
1.Chronic nociplastic shoulder/elbow secondary to central sensitisation, post repair of left biceps tendon.
2.Chronic neuropathic upper extremity pain secondary to left ulnar neuropathy, central sensitisation.
3.Cortical augmentation with adjustment disorder, catastrophisation and reduced self-efficacy.
In my opinion, the above diagnoses is triggered by the workplace injury as above, contributed to by central sensitisation, perpetuated by adjustment disorder, catastrophisation and reduced self efficacy.
[97] Ibid, 137.
March 2022
The Applicant underwent an independent medical examination by Dr Tillman Boesel, Pain Medicine Physician. In his report dated 7 March 2022,[98] Dr Boesel detailed the following with respect to the diagnosis of the conditions suffered by the Applicant in respect of his left upper limb:[99]
[The Applicant] is indeed suffering from a complex pain disorder of the left upper limb. He has the following relevant diagnoses:
·     Left-sided neuropathic pain in the ulnar nerve distribution related to compression at the elbow. This has not improved with surgical cubital tunnel release and causes persistent difficulties.
·     Left-sided lateral epicondylitis.
·     Left-sided rotator cuff (supraspinatus) partial tear with chronic shoulder pain.
·     Residual tendinopathy of the reattached distal biceps tendon.
[98] Ibid, 152 – 157.
[99] Ibid, 155.
With respect to causation, Dr Boesel opined:[100]
It is clear that he suffered the biceps tendon injury at the time of the incident. On history and on subsequent developments, he appears to have had left-sided ulnar nerve symptoms from very early on in the course. Given the early nature of his surgery to correct the biceps tendinosis and the persistent pain in spite of the operation, I am satisfied that the ulnar nerve symptomatology arose in the postoperative recovery period. I am uncertain as to the time-point when the pathology started. It is possible that the tear occurred at the time of his injury, with the pain having been masked by the severe biceps pathology. Alternatively, it may have occurred during the recovery process. The starting timepoint is somewhat unclear.
[100] Ibid, 155.
Dr Boesel gave oral evidence at the Tribunal hearing via video-link. He confirmed that he trained as an anaesthetist and then subsequently specialised in pain medicine through the Australian and New Zealand College of Anaesthetists (ANZCA), Faculty of Pain Medicine. He became a member of the ANZCA Faculty of Pain Medicine (FPMANZCA) in March 2013. He explained that the majority of practicing pain medicine doctors hold the pain medicine fellowship.[101] He confirmed that he is not an orthopaedic surgeon, however he sees a large number of orthopaedic patients in his practice because chronic pain disorder is one of the most common type of complication that arises out of orthopaedic surgery.[102] He has worked with pain patients since 2006. [103]
[101] Transcript of proceedings, 29 August 2023, 67.
[102] Ibid, 68.
[103] Ibid, 66.
During cross-examination, Dr Boesel was asked about the statement in his report produced at [92] above. He was asked whether the four conditions are those from which the Applicant’s pain disorder arises. He stated:[104]
They’re the primary peripheral conditions set out casually linked to the pain.
[104] Ibid, 69.

He was asked whether there any other orthopaedic conditions that are causally linked. He stated:[105]
So, they’re the initiating conditions. [The Applicant] almost certainly has what’s called central sensitisation, which is a functional state in the nervous system that arises out of having chronic unrelenting pain. So, you get reorganisation of the pain pathways in the spinal cord and in the brain. We don’t have any objective ways of measuring that. There are no diagnostic tools, that’s an assumed diagnosis.
[105] Ibid, 69.
Dr Boesel was asked to explain the phrase ‘complex pain disorder’. He stated:[106]
It is a diagnostic label that refers to multifocal pain, so where there are multiple pain generators. It is a qualitative descriptor. Certainly if somebody had a single pain generator we would just call that a pain disorder. I refer to complexity in this case simply because there are multiple interacting pain generators, which I’ve listed.
[106] Ibid, 70.
He confirmed that the four listed conditions in [92] are the ‘pain generators’.[107]
[107] Ibid, 71.
Counsel for the Respondent suggested to Dr Boesel that ‘complex pain disorder’ is not a ‘standalone diagnosis’ that is ‘recognised in the medical community’ or ‘listed in peer review articles’. Dr Boesel explained that it is ‘a frequently used qualitative descriptor’.[108]
[108] Ibid.
Dr Boesel told the Tribunal that ‘[p]atients can develop pain disorders after any surgical procedure, and it doesn’t necessarily reflect surgical misadventure.’ He confirmed that whether or not the Applicant’s pain disorder ‘arose out of surgical misadventure is very difficult to say.’ [109]
2.Psychological condition
[109] Ibid, 74.
November 2021
On 2 November 2021, the Applicant underwent an independent medical examination by Dr Martin Allan. In his report dated 8 November 2021, Dr Allan diagnosed the Applicant as suffering from ‘a chronic adjustment disorder with depressed and anxious mood’.[110]
[110] Exhibit R2, T97, 427 – 438.
In relation to the history of the Applicant’s injury, Dr Allan recorded:[111]
[The Applicant] confirmed the details of his injury. He was first injured in January of 2017 … and had surgery within a week as he was advised by his specialist that expedient treatment was necessary. He had three moths (sic) off work and returned gradually thereafter to restricted duties, he was never able to return to full duties. He reports that by mid-2017, when his arm was taken out of a sling pain that he had been aware of prior to that time affecting his shoulder and finger had worsened and he was told by specialists that the mobility associated with the removal of the sling contributed to the escalation of pain at that time. Itself being directly related to the injury. He was later referred for a sports physician review and was diagnosed with a pain syndrome. In early 2018 required ultrasound-guided injections in the left "cubital tunnel".
In March 2018 [the Respondent] had disputed his injury and all treatment since that time he has had to fund himself. Having worked effectively on restricted duties once these were removed from him in 2018, he ceased working and has been unable to work since that time. He reports no attempts to seek work and has never felt well enough to purse (sic) work on the open labour market.
…
I regard [the Applicant’s] condition as secondary to his chronic pain issues and reduced physical function, having developed a chronic adjustment disorder with depressed and anxious mood.
…
[The Applicant] did not instantly develop a depressive disorder or any other condition in January of 2017 when the incident occurred. It is the failure to recover from that injury and ongoing disability as well as constant pain that [the Applicant] finds himself in which has led to the decline in his mood.
…
I found not (sic) evidence of any prior psychiatric condition but the account he gives is one of failed recover (sic) from his injury and a worsening of mood in that context.
[111] Ibid. T97, 432.
In his oral evidence at the hearing, Dr Allan was asked when he believes the Applicant began to suffer the symptoms of an adjustment disorder. He told the Tribunal that he believes that the ‘onset of [the Applicant’s] gradually developing condition’ was in late 2017 to early 2018.[112] He was further asked when he believes that the disorder became ‘chronic’, to which he replied that in his opinion the ‘chronic aspect comes beyond the 12-month period.’[113]
[112] Transcript of proceedings, 28 August 2023, 44.
[113] Ibid, 47.
May 2023
On 10 May 2023, the Applicant underwent an independent medical assessment by Dr Wasim Shaikh, psychiatrist, via video link. In his report dated 26 May 2023, Dr Shaikh reported:[114]
[The Applicant] notes that he has not returned to work in the past four years, but has been putting forth various applications in relation to management type and operational positions. In most of these applications, there has not been progress, since once the employers are aware of his injury ‘everything stops’.
[The Applicant] advises that his emotional symptoms dated back to 2017, and he started becoming increasingly distressed. Despite this, he had not sought any psychiatric treatment.
He reported being stoic in nature and did not see the point of psychiatric treatment, as the main issue what his physical distress ‘How is psychological treatment going to help the pain?’.
Around the time of the current assessment, [the Applicant] noted that he was keeping clean and showering regularly. He was trying to eat healthy. He was preparing meals, he was taking the dog out for walks.
He would go to the park with his wife. He could get to the local shops. He was involved in chores. He still had motivation towards activities such as playing golf or going fishing. When involved in such activities, he would have the ‘after effect’ with pain. He recently spent Easter with his family.
[114] Report of Dr Wasim Shaikh, 26 May 2023.
Dr Shaikh made the following findings:[115]
[115] Ibid, 6-7, 8.
[The Applicant] is a 60-year-old gentleman, who claims compensation in relation to psychiatric injuries, allegedly sustained secondary to a physical injury to his arm in January 2017. It would appear that [he] has been through an extended compensation battle, over the last six years. Only recently has he applied for compensation in relation to a psychiatric condition. Whilst there is evidence to suggest the present (sic) of depressive and anxiety phenomena, he has never requested psychiatric treatment. He himself is of the opinion that psychological treatment is unlikely to address the primary issue, which is his chronic pain.
It is reasonable to diagnose an adjustment disorder with mixed anxiety and depressed mood. The condition arises secondary to his reported ongoing pain, and the related restrictions in his abilities. There is inconsistency in information provided by [the Applicant], and rather than the initial injury, his condition appears to relate to his ongoing and more recent symptoms, and it is very probable that his ongoing involvement in the compensation process and decision therein have had contribution towards his mental health dysfunction.
Despite the reported depressive symptomatology, and some anxiety about his future, [the Applicant] maintains reasonable social functioning. His restrictions are primarily physical in nature. He maintains his self-care. He is able to socialise as allowed from a physical perspective. He drives without major emotional concerns. He gets along well with his wife, as well as friends. He has an interest in return to work, and restrictions are primarily physical.
…
[The Applicant] suffers an adjustment disorder with mixed anxiety and depressed mood. I do note inconsistency in provision of information and highlight that there have been no reports of emotional complaints until late last year - there may be further gain factors involved.
On the basis of available information, I would diagnose an adjustment disorder with depressed mood. I would like to highlight that [the Applicant] unlikely suffers from a pain disorder with psychological contribution, as in his case, the psychological distress is secondary to the pain, and not cause … of the pain. …
The causation has been discussed above. I believe the condition relates to his ongoing perception of chronic pain. There is likely to be a significant involvement with the claim/litigation process. …
…
There are no restrictions from a psychiatric perspective.
…
There is no incapacity from a psychiatric perspective.
In his oral evidence at the hearing, Dr Shaikh stated that the Applicant told him that after his injury in January 2017, he was ‘frustrated with his ongoing physical injury complaints and his restrictions in movement, restrictions in abilities to do things.’ But it was only in the past two or three years that he had considered psychological treatment.[116] Dr Shaikh was asked whether he considered that the Applicant’s frustration would give rise to a psychological diagnosis. He stated:[117]
No, I did not. An adjustment disorder is the diagnosis that is to be considered. And it’s a diagnosis that gets considered when symptoms, or emotional symptoms, are in excess of expectations or in excess of what may be understood as part and parcel of the then presentation. And I felt that in an individual who had an extended history of work, the fact that he struggled with ongoing physical symptoms would have led to some level of emotional distress. And if he wouldn’t have had that I would be surprised. But that doesn’t automatically equate to there being a psychiatric condition or an adjustment disorder because it was not in excess of expectations. This is a gentleman who has previously experienced emotional symptoms in response to various stressors back in 2005, 2007, 2011, 2012. And he has discussed symptoms with his GP. But those are stress-based symptoms rather than referring to a psychiatric diagnosis.
[116] Transcript of proceedings, 29 August 2023, 84.
[117] Ibid.
July 2023
On 11 July 2023, the Applicant was re-examined by Dr Allan. In his report dated 11 July 2023, he confirmed his diagnosis of the Applicant’s condition as ‘Chronic adjustment disorder with depressed and anxious mood.[118] He stated:[119]
[The Applicant] continues to experience enduring pain, discomfort and difficulties with the function of his left arm. His physical function is impacted and he alters how he utilises his arm to accommodate this discomfort and pain. He continues to suffer from a chronic adjustment disorder with features of anxiety and distress. I commented in my previous report that as long as pain persisted his mood would continue to be impacted and this has been the case and I note issues with irritability, low frustration tolerance, anxiety, low mood and sleep disturbance.
…
I continue to be of the opinion that [the Applicant’s] pain has been the source of what is a chronic adjustment disorder. He has low mood and anxiety which arise as a result predominantly of his reduced function in his arm. The ongoing pain he experiences impacts his mood and has continued to do so since my last review in 2021.
[118] Report of Dr Martin Allan, 11 July 2023, 10.
[119] Ibid, 9.
In relation to causation, Dr Allan opined:[120]
His condition was contributed to by a significant degree by the incident in January of 2017 that caused his arm injury and his lack of recovery and ongoing pain has contributed to the development of his chronic adjustment disorder with depressed and anxious mood.
[120] Ibid, 10.
Dr Allan observed that it was unclear why the Applicant had not been prescribed medication for his condition and that he had not been referred for psychological treatment:[121]
[The Applicant] indicates that he would be “open to” medications and appears to be open minded to psychological treatment. It is entirely unclear why he has not been referred for any psychological treatment or been referred to a psychiatrist for any discussion of mental health medication. Furthermore there are no reasons why his GP if they were comfortable managing mental health difficulties could not begin to prescribe medications immediately …
Dr Shaikh suggested psychological treatment and I am in agreement with this. I would recommend 12 sessions on a fortnightly basis initially and if these prove to be beneficial continuing treatment less frequently for a further three-six months on a monthly basis would potentially be useful. I am of the opinion that if he pursues treatment there is the possibility that his adjustment disorder may mildly alter but as long as he continues to experience pain there will continue to be a level of distress associated with that work related injury.
[121] Ibid, 9.
In relation to the Applicant’s prognosis, Dr Allan opined:[122]
In the context of potential treatment the outcome prognostically is difficult to assess as it is by no means clear how much treatment may assist him. Given that the alternative is to consider that he has had no treatment up to this point in time and the delay in having appropriate treatment will definitely lead to a reduced likelihood of treatment benefitting him going forward but the degree of benefit from treatment is by no means clear.
From my perspective as an independent psychiatrist I feel the likelihood of his condition improving dramatically is poor given the chronic nature of his pain and whilst he continues to experience chronic pain and the absence of any ongoing pain therapy I think it is more likely than not that he will continue to suffer enduring adjustment symptomatology with the caveat stated that there is a potential of some mild improvement in his symptoms in the context of potential psychological treatment
[122] Ibid, 10 – 11.
and medication utilisation.
Dr Allan provided the following opinion in relation to the Applicant’s capacity to work:[123]
From a psychiatric perspective I believe he will struggle with work. He is withdrawn
and overwhelmed. His concentration and focus are poor. His stress levels impact his
function to a degree where I believe he would be overwhelmed, have difficulties
interacting, and be disorganised and ineffective with even basic duties. I regard his as unsuitable for full time work and part time work at this time.
CONTENTIONS
[123] Ibid, 11.
Applicant
The First Tribunal had no jurisdiction in the 2020 reviews to decide the compensability of a chronic pain syndrome or a psychiatric injury. However, the currently constituted Tribunal does have jurisdiction to decide these ‘secondary’ injuries. Prior to 11 June 2020, the Applicant had never lodged a compensation claim for either a chronic pain syndrome or a psychiatric injury.[124]
[124] Applicant’s Written Submissions for Respondent’s Dismissal Application, 24 June 2022, [9].
The Applicant’s chronic pain syndrome was diagnosed prior to the cessation of the Respondent’s liability for the left biceps tendon condition during the period 12 January 2017 to 25 March 2018. It is open to the Applicant to argue that the left biceps tendon condition and the ensuing pain, suffering, and medical treatment led to a chronic pain syndrome as diagnosed by Dr Annett on 28 November 2017. This case was never argued before the First Tribunal because it had no power to rule upon such an argument.[125]
[125] Ibid, [15].
A chronic pain syndrome is a separate and distinct injury. It more naturally falls under the rubric of an ‘ailment’ or ‘disease’ as opposed to an ‘injury (other than a disease)’ or injury simpliciter. Following the recent Full Federal Court decision of Wuth v Comcare,[126] such an injury does not require pathological or physiological change for it to be compensableas a disease under the SRC Act.
[126] [2022] FCAFC 42; Applicant’s Written Submissions for Respondent’s Dismissal Application, 24 June 2022, [11].
The Applicant is not attempting to relitigate his claims. He accepts that the First Tribunal ruled against him in relation to the injuries which it had jurisdiction to decide.
The Tribunal must consider the undermining of public trust and confidence which ensues when an Australian citizen or resident lawfully brings a claim before it to be decided according to law and on the merits, but they are peremptorily stopped from having their grievances heard without proper justification.[127]
[127] Applicant’s Written Submissions for Respondent’s Dismissal Application, 24 June 2022, [13].
The Respondent has not established that the Review Applications ought to be dismissed. Its dismissal application ought to be dismissed for want of substance.[128]
[128] Ibid, [16].
Respondent
The Review Applications should be dismissed pursuant to section 42B of the AAT as an abuse of process.[129]
[129] Respondent’s Final Submissions in Support of Dismissal Application, 30 August 2023, [1].
The Applicant relies upon the same constellation of symptomatology as the basis of his claims for compensation for the chronic pain condition (25 December 2020) (‘the chronic pain condition claim’) and the psychological condition (6 December 2021) (‘the psychological claim’) which formed the basis of the First compensation claim for the left biceps tendon condition (13 January 2017) and the Second compensation claim for the other left arm conditions (9 January 2019). These physiological conditions that formed the basis of the First and Second compensation claims were found by the First Tribunal to be unrelated to the Applicant’s employment with the Respondent. [130]
[130] Respondent's Submissions on Dismissal Application in Reply, 30 June 2022, [2(a)].
The additional medical evidence relied on by the Applicant in the First Review Application with respect to the claimed chronic pain condition provided by Dr Boesel, Dr Yeoh,[131] Dr Ho, and Dr Allan traverses the same factual matrix and re-enlivens the causation issues determined by the First Tribunal.[132]
[131] Report of Dr Kwan Yeoh, 20 August 2020.
[132] Respondent's Submissions on Dismissal Application, 18 May 2022, [67]-[70].
The same symptomatology and pain picture which was at the centre of the review applications determined by the First Tribunal has simply been recast and/or reformulated in an attempt to circumvent the adverse findings in respect of the Applicant’s entitlements to compensation made by First Tribunal.[133]
[133] Respondent's Submissions on Dismissal Application, 18 May 2022, [71].
The First Tribunal had jurisdiction to consider any condition of the left upper limb, including a purported pain condition, regardless of whether it decided the matter using particular terms: Ellison and Comcare.[134]
[134] (2022) 175 ALD 62; [2022] FCA 95; Respondent’s Application for Dismissal, 28 August 2023, [8].
The First Tribunal’s decision indicates that it was alive to the issue of the Applicant’s claimed chronic pain condition by reason of its reference to the reports provided by Dr Annett.[135] In its submissions to the First Tribunal, the Applicant did not seek to argue the Respondent was liable for the claimed chronic pain condition; he instead imputed the same pain pathology to the left biceps tendon condition and the other left arm conditions.[136] The Applicant had every opportunity to request the First Tribunal decide the matter in any particular terms: Novosel v Comcare.[137]
[135] Respondent's Submissions on Dismissal Application, 18 May 2022, [73].
[136] Ibid.
[137] Respondent’s Application for Dismissal, 28 August 2023, [8].
To permit the First Tribunal’s decision or the factual findings therein to be avoided by augmenting or reformulating a diagnosis of the Applicant’s condition as a mechanism to subvert such findings and attempt to persuade a differently constituted Tribunal to reach a different decision in relation to the same factual scenario, undermines public confidence in the Tribunal’s decision-making function and the finality of its decisions.[138] For a review application to be allowed to proceed in these circumstances is uneconomical due to the cost of the proceedings, unfair and unjust as the Respondent is required to respond to the same claims and largely the same evidence, and not quick as it results in protracted litigation.[139]
[138] Respondent's Submissions on Dismissal Application, 18 May 2022, [75(d)].
[139] Ibid, [75(a)-(c)].

The Applicant contends that the First Tribunal’s findings related only to sections 16 and 19 of the SRC Act, and the Respondent’s Determination dated 16 January 2017 accepting liability under section 14 of the SRC Act for the left biceps tendon condition has not been revoked and remains ‘on foot’.[214] He contends that as the section 14 liability is ongoing, then it is open to the Applicant to bring a claim for secondary or consequential injuries.[215] The Respondent contends that the effect of the First Tribunal’s decision is that the left biceps tendon condition ceased to be compensable under section 14 in respect of the work incident that occurred on 12 January 2017.[216]
[214] Applicant’s Written Submissions in Reply,8 September 2023, [18].
[215] Ibid.
[216] Respondent’s Closing Submissions, 6 September 2023, [18].
Woodhouse v Comcare
Relevant to determining the effect of the First Tribunal’s decision is the Full Court of the Federal Court’s decision in Woodhouse v Comcare.[217] In his judgment, Derrington J (Collier and Rangiah JJ agreeing) emphasised that the existence of an entitlement to compensation under sections 16 and 19 is conditioned by an entitlement to compensation pursuant to section 14 of the SRC Act:[218]
It may be accepted that the import of the Full Court’s reasons [in Prain v Comcare] at [89] is that Comcare’s liability to pay compensation in respect of incapacity for work depends on it being liable to pay compensation in respect of an injury: s 14. Likewise, it is implicit in the passage in Lees [at [27]] if there is no entitlement to compensation pursuant to s 14, then there can be no entitlement to compensation pursuant to s 19.
The applicant contended those authorities do not support the further proposition that if an “injury” ceases for the purposes of the SRC Act, then an employee’s entitlement to compensation pursuant to s 14 (and in turn pursuant to ss 16 and 19) also ceases (even if that was the result in those cases in the absence of the contentions raised by the applicant in this appeal). She submitted that the reference to “injury” in ss 16 and 19 includes injuries which have ceased for the purposes of the SRC Act.
These submissions must be rejected. As the authorities referred to make clear, the satisfaction of the requirements of s 14 is essential to Comcare’s liability to pay compensation. The Act operates such that only injuries within the scope of that section can be the subject of compensation. A determination that the section is satisfied is an acceptance by Comcare that its liability exists. Other sections may control the content, duration and means of satisfying how the liability is met or how compensation is paid, but they do not extend liability beyond the section: see also Australian Postal Corp v Oudyn (2003) 73 ALD 659 [29]. The structure of the Act as articulated in Prain makes that clear. It follows that if an injury ceases to be compensable under s 14 in respect of a relevant period of claim, no compensation is payable in respect of it under s 19.
…
For the reasons referred to previously, the existence of an entitlement to compensation pursuant to s 14 in respect of a relevant period of time depends on there being an “injury” from which the employee suffers during that period of time. Compensation is only payable for the period during which the injury retains the relevant causal nexus with employment. In other words, that the contribution requirement remains unbroken. In the case of a disease, it must be one that was contributed to in a material (or significant) degree by the employee’s employment. For the reasons explained in Lees (at [27]), the entitlement to compensation arises pursuant to s 14 and is then controlled by the provisions that follow in Pt II of the SRC Act. For that reason, in the absence of a present “injury” and a consequent entitlement pursuant to s 14, there cannot be liability to pay compensation for incapacity for work that occurs “as a result of” an injury pursuant to s 19.
[217] [2021] FCAFC 95; 285 FCR 14, [109].
[218] Ibid, [102]-[104], [109] cited in Hickey v Australian Postal Corporation [2023] FCA 57, [94].
The First Tribunal found that the Applicant’s left biceps tendon condition had been satisfactorily repaired and he suffered no incapacity for employment from 26 March 2018. It concluded that ‘the ongoing conditions of his left arm suffered by [the Applicant] are not related to his employment by [the Respondent].’ The effect of the finding that from 26 March 2018, the Applicant’s left biceps tendon condition was no longer related to his employment is that it ceased to be an ‘injury’ for which compensation is payable pursuant to section 14 of the Act.
This was explained in the context of an ‘ailment’ by Derrington J in Woodhouse:
Comcare has no liability under s 14 in relation to an ailment, the continued existence of which can no longer be said to have the necessary causal connection to the employee’s employment. The mere fact that the ailment suffered may once have had the necessary connection is irrelevant. Even where the ailment continues unabated, if it ceases to have the characteristic of being one which was relevantly contributed to by the employee’s employment, Comcare’s liability ceases.
For the reasons stated above, the Tribunal is satisfied that the effect of the First Tribunal’s finding that from 26 March 2018 any ongoing symptoms related to the Applicant’s left biceps tendon condition are not related to his employment by the Respondent, is that there is no longer an ‘injury’ for which the Respondent is liable to pay compensation under section 14 of the SRC Act. The consequence of this finding is, as the First Tribunal determined, that the Applicant has no ongoing entitlement to the payment of compensation for medical treatment expenses and incapacity benefits pursuant to sections 16 and 19 of the SRC Act arising from the left biceps tendon condition.
(f) What were the First Tribunal’s findings in relation to Second Reviewable Decision (Applicant’s other left arm conditions claim)
The First Tribunal found that the Respondent was not liable under section 14 of the Act to compensate the Applicant for his other left arm conditions.
In relation to the Applicant’s complaint of pain radiating down his left forearm, the First Tribunal noted that Dr Han did not record any such complaint and he did not become aware of the Applicant complaining of left shoulder pain until January 2018.[219] It accepted Dr Han’s oral evidence that he would have recorded a complaint of shoulder pain in his clinical notes had it been made by the Applicant, and that he would have been particularly careful to do so in regard to an injury suffered at work.
[219] Exhibit R1, T87, 374[156] reference to Transcript of proceedings, 6 November 2019, 106.
Based on the evidence of Dr Pillemer and the absence of any record of a complaint of such pain by either Dr Han or Dr Yeoh until some months after the initial injury, the First Tribunal found that the Applicant did not suffer the pain radiating down his left forearm until sometime between the date of the left biceps tendon repair surgery (19 January 2017) and his examination by Dr Yeoh on 30 May 2017.
The First Tribunal did not accept the Applicant’s evidence that he suffered pain in his left shoulder at the time he moved the crate or immediately thereafter during the work incident on 12 January 2017.[220]
[220] Ibid, T87, 373, [155].
The First Tribunal noted that the Applicant’s first report of a complaint of left shoulder pain is recorded in the report of Dr Annett dated 28 November 2017. The Applicant did not report a shoulder pain complaint to Dr Annett when he consulted him on 5 October 2017 and 17 October 2017.[221]
[221] Ibid, T87, 374, [157].
The First Tribunal also noted that when the Applicant was examined by Dr Steadman in July 2017, he did not mark on the diagram of the human body the left shoulder as an area where he was experiencing pain. When the Applicant was examined by Dr Steadman in January 2018, he marked the front and back of the left shoulder and indicated that the pain extended up towards his neck and down towards his elbow.[222]
[222] Ibid, T87, 374, [158].
Based on the lack of recording by Dr Han, Dr Yeoh and Dr Annett of a shoulder complaint by the Applicant on the dates above, the First Tribunal found on the balance of probabilities, the Applicant did not begin to suffer pain in his left shoulder until sometime between 17 October and 28 November 2017.[223]
[223] Ibid, T87, 374, [159].
In relation to left elbow pain, the First Tribunal noted the reports of Dr Yeoh dated 13 and 21 July 2017 which recorded the Applicant’s complaint of pain in this region, and which was confirmed by a MRI. In September 2017, the Applicant reported ‘fairly generalised pain around the elbow’ to Dr Annett who considered the symptoms to be ‘indicative of a post-injury pain syndrome.’ Dr Annett opined in his 28 November 2017 report that the Applicant was suffering from a ‘chronic pain syndrome’ relating to his elbow.[224]
[224] Ibid, T87, 366 and 167, [116] and [122] referencing Dr Annett report dated 28 November 2017.
The First Tribunal was not satisfied that the diagnoses of the Applicant’s left arm condition by Dr Yeoh nor Dr Annett were consistent with the type of ‘physiological change’ referred to by the High Court in Military Rehabilitation and Compensation Commission v May.[225] Furthermore, it found that even if it had been satisfied that it was appropriate to consider the condition under paragraph 5A(1)(b), taking into account the evidence of Dr Steadman, it would not have been satisfied, on the balance of probabilities, that the condition arose out of, or in the course of, the Applicant’s employment.[226]
[225] Ibid, T87, 369, [133].
[226] Ibid, T87, 369, [134].
The First Tribunal found that taking into account the differing diagnoses made of the Applicant’s left arm condition by Dr Yeoh and Dr Annett, and that neither gave evidence at the hearing, it could not be satisfied that the Applicant’s employment contributed to his condition to a significant degree.[227] Also considering Dr Steadman’s evidence and that of Dr Pillemer, ‘who could not explain how the condition occurred’, the First Tribunal was not satisfied on the balance of probabilities that the Applicant’s employment made the required contribution to his ailment. It concluded that the Applicant’s other left arm conditions were not an ‘injury’ entitling him to payment of compensation under section 14 of the SRC Act.
[227] Ibid, T87, 368, [128].
(g) Should the First Tribunal’s decision be reconsidered?
As discussed in paragraphs [143]-[147] above, the Full Federal Court in Snell held that prior decisions made either by an administrative decision maker or by the Tribunal, do not create an issue estoppel binding a subsequent decision-maker. However, it was recognised that ‘generally, there should not be re-litigation without reason of the same issues before the same Tribunal where the re-litigation involves the same facts and issues already determined.’[228] In such circumstances ‘the previous determination would generally be regarded as establishing the matters actually decided and the grounds for the same and it is open to the Tribunal to proceed in that manner.’[229]
[228] Snell, [65] citing Cheung v Administrative Appeals Tribunal (2009) 176 FCR 20 at [49].
[229] Snell, [65].
As Perry J stated in Novosel, the Tribunal should not generally allow re-litigation of issues already decided and it would be ‘inappropriate and unreasonable’ for there to be re-litigation of the same issues before the Tribunal. As Her Honour recognised, this is consistent with the Tribunal’s objective in section 2A of the AAT Act, namely, to provide a mechanism of review that is fair, just, economical, informal and quick. Her Honour acknowledged, consistently with the judgments in Snell, that re-litigation may be justified where there is a reason, and that new evidence may provide such a reason if it was not available prior to the Tribunal’s decision.[230]
[230] Novosel, [112].
Based on these authorities, the Tribunal finds that issues that were considered and determined by the First Tribunal should not be re-litigated in the current review proceedings, particularly in circumstances where the jurisdiction of the Tribunal in relation to the First Review Application is the same, unless there is a reason to do so. As the Tribunal found in paragraph [168] above, the First Tribunal had jurisdiction to consider and make findings in relation to any diagnosed condition of the Applicant’s left upper limb, including a chronic pain condition, he suffered following the injury he sustained during the work incident on 12 January 2017. The jurisdiction of the currently constituted Tribunal in relation to the First Review Application is to consider and make findings in relation the Applicant’s ‘chronic pain syndrome’ affecting his ‘left arm and left shoulder’.
The Applicant provided updated medical evidence to the Tribunal in support of the First Review Application in relation to his claimed chronic pain condition which was not before the First Tribunal. The Tribunal now considers whether this amounts to new evidence which justifies re-litigation, where the re-litigation involves the same facts and issues already determined by the First Tribunal.
e)Is there new evidence to justify re-litigation of facts and issues already determined by the First Tribunal?
The additional medical evidence the Applicant provided in support of the First Review Application is as follows:
·Dr Yeoh – report dated 20 August 2020;
·Dr Ho – report dated 1 October 2021; and
·Dr Boesel – report dated 7 March 2022 and oral evidence at the hearing.
Dr Yeoh’s report refers to the Applicant’s ‘chronic pain’ in his ‘left upper limb’ and while he does not explain this physiologically, he relates it to pain in the following regions of the Applicant’s body:
·over the ulnar nerve aspect of the elbow
·the posterior aspect of the elbow
·anteriorly at the distal biceps tendon repair site
·the superolateral area of the left shoulder
·ulnar nerve subluxation at the elbow
·signs of shoulder pain consistent with a rotator cuff tear.
·elbow pain that does not seem to relate to any one particular anatomical region
Dr Ho’s report refers to the Applicant’s ‘chronic pain syndrome’ and provides the following diagnoses:
·     Chronic nociplastic shoulder/elbow secondary to central sensitisation, post repair of left biceps tendon.
·     Chronic neuropathic upper extremity pain secondary to left ulnar neuropathy, central sensitisation.
·     Cortical augmentation with adjustment disorder, catastrophisation and reduced self-efficacy.
Dr Boesel’s report refers to the Applicant’s ‘complex pain disorder of the left upper limb’ and identifies the following locations and generators of the pain:
·     Left-sided neuropathic pain in the ulnar nerve distribution related to compression at the elbow.
·     Left-sided lateral epicondylitis.
·     Left-sided rotator cuff (supraspinatus) partial tear with chronic shoulder pain.
·     Residual tendinopathy of the reattached distal biceps tendon.
In his oral evidence at the hearing, Dr Boesel explained that the term ‘complex pain disorder’ is a ‘diagnostic label that refers to multifocal pain’ in circumstances ‘where there are multiple pain generators.’ It is a ‘qualitative descriptor’ which is used when a patient has more than one pain generator. If the patient has only a single pain generator the appropriate description of their condition is ‘pain disorder’. As the Applicant has ‘multiple interacting pain generators’ his pain disorder is ‘complex’. Dr Boesel confirmed that the Applicant suffered pain from the four ‘pain generators’ listed in his report in the post-operative period in 2017.
In his 23 February 2018 report, Dr Steadman reported that the Applicant complained of the following:
·‘significant symptoms in his left arm’.
·‘painful left shoulder’
·‘irritation of his ulnar nerve’
·‘left hand has been going to sleep’
·‘lateral epicondylitis of the elbow or tennis elbow’
·‘ulnar nerve symptoms [which] go down the medial side of the forearm and … to the little finger’
·‘symptoms on the lateral side of the elbow [which] go from the lateral epicondyle down the back of the forearm to the level of the wrist’
·‘left shoulder symptoms … associated with most activities but in particular worse when he lifts the arms to the side’
·‘rotator cuff tear and AC joint degeneration of the left shoulder’
·‘a torn biceps tendon [and] ongoing lateral epicondylitis and ulnar nerve symptoms which he believes are related to the elbow’.
In his 16 August 2018 report, Dr Pillemer noted the Applicant reported:
·‘sensitivity on the medial side of [his] left elbow associate8d with pins and needles radiating down into the fourth and fifth fingers of his left hand’
·‘significant discomfort [in his left shoulder region] … particularly in the posterior aspect … extending down to his biceps’
·‘residual discomfort over the later aspect of his left elbow region with discomfort radiating down the dorso-lateral aspect of his upper forearm towards the wrist.’
·‘rupture of the distal insertion of his biceps tendon which has now been satisfactorily repaired with slight loss of flexion of his elbow and partial re-rupture of the biceps repair’
·‘significant symptoms of ulnar neuritis on the left side’; and
·‘axillary nerve lesion on the left side’.
These medical reports were before the First Tribunal, and it found the Applicant’s following other left arm conditions to be non-compensable:
·‘rupture of biceps tendon at left arm’
·‘ulnar neuritis at left arm’
·‘axillary nerve lesion at left arm’
·‘lateral epicondyle at left arm’
In relation to the additional medical evidence provided by the Applicant in support of the First Review Application, the Tribunal finds for the reasons that follow that this does not constitute new evidence which would justify the re-litigation of the issues that were before the First Tribunal.
The Applicant did not make any reference to Dr Ho’s opinion in his Statement of Facts, Issues and Contentions, nor did he seek to rely on Dr Ho’s diagnoses relevant to his chronic pain condition in submissions to the Tribunal. Nor did the Applicant call Dr Ho as a witness or make him available for cross-examination at the Tribunal hearing. As Dr Ho’s opinion in his 1 October 2021 report has neither been relied on by the Applicant or tested, the Tribunal has given it very limited weight.
The symptoms or ‘pain generators’ Dr Boesel identifies in his 7 March 2022 report were recorded by the Applicant’s treating doctors in 2018, including Dr Steadman and Dr Pillemer, both of whose 2018 reports above in paragraphs [195] and [196] were before and considered by the First Tribunal. The basis of Dr Boesel’s opinion relies on the same factors that resulted in the findings of Dr Steadman and Dr Pillemer in their 2018 reports in relation to the Applicant’s other left arm conditions, which were found by the First Tribunal to be non-compensable.
In his oral evidence at the hearing, Dr Boesel confirmed that the Applicant’s ‘complex pain disorder’ is not a medical ‘diagnosis’; it is a description of the multiple ‘pain generators’ that constitute the Applicant’s condition. Dr Boesel’s report confirms that the Applicant suffered pain from these ‘pain generators’ in the period following the left biceps tendon repair surgery in January 2017. They were generating the Applicant’s left upper limb pain from at least mid-2017, and they were ongoing when the two Reviewable Decisions were considered by the First Tribunal which the Tribunal has found had jurisdiction to make findings in relation to conditions affecting the Applicant’s left arm and left shoulder, including a chronic pain condition. The First Tribunal, having considered the medical evidence before it, found that the Applicant’s other left arm conditions which were characterised by pain were non-compensable.

Having had regard to the additional medical evidence the Applicant provided in support of the First Review Application, the Tribunal finds that there is no new evidence that would justify re-litigation of the same issues that were determined by the First Tribunal. Accordingly, the Tribunal is satisfied that there should be no re-litigation of these issues for the reasons detailed in Snell and Novosel, specifically it would be ‘inappropriate and unreasonable’ for there to be re-litigation of the same issues before the Tribunal. This finding is consistent with the Tribunal’s objective in section 2A of the AAT Act, namely, to provide a mechanism of review that is fair, just, economical, informal and quick. The First Tribunal’s determination should be regarded as establishing the matters it decided and the grounds for the same.[231]
[231] Snell, [65].
The First Review Application is dismissed under section 42(1)(c) as an abuse of process of the Tribunal.
Second and Third Review Applications – the psychological condition
The Applicant contends that he is entitled to compensation pursuant to section 14 of the SRC Act arising out of the work incident on 12 January 2017 for his psychological condition, specifically Adjustment Disorder with Depressed and Anxious Mood.[232] His primary submission is that his psychological condition flows from his chronic pain condition, and this is supported by the evidence of Dr Allan and Dr Shaikh.[233]
[232] ASFIC, [30].
[233] Transcript of proceedings, 29 August 2023, 111.
The Applicant contends that if the Tribunal finds that the chronic pain condition claim is an attempt to re-litigate the same issues determined by the First Tribunal, then it submits that the psychological claim flows from the left biceps tendon injury which occurred on 12 January 2017 in the course of his employment, and the sequelae, including the surgery and the post-surgery recovery period.[234]
[234] Ibid.
The Respondent contends that the psychological condition rests entirely on acceptance of the chronic pain condition which is the basis of the First Review Application. If the First Review Application is dismissed on the basis that it is re-litigation, it follows that the Second and Third Review Applications have no reasonable prospects of success.[235]
[235] Respondent’s Application for Dismissal, 28 August 2023, [7].
The two psychiatrists who provided evidence in relation to the Applicant’s psychological claim (Dr Allan and Dr Shaikh) both diagnosed the Applicant as suffering an Adjustment Disorder with Depressed and Anxious Mood (‘Adjustment Disorder’).[236] They also agree that the Adjustment Disorder is ‘secondary’ to the Applicant’s chronic pain and reduced physical functions. In his report dated 8 November 2021, Dr Allan opined:
I regard [the Applicant’s] condition as secondary to his chronic pain issues and reduced physical function, having developed a chronic adjustment disorder with depressed and anxious mood.
…
[The Applicant] did not instantly develop a depressive disorder or any other condition in January of 2017 when the incident occurred. It is the failure to recover from that injury and ongoing disability as well as constant pain that [the Applicant] finds himself in which has led to the decline in his mood.
[236] Exhibit R2, T97, 427 – 438; Report of Dr Wasim Shaikh, 26 May 2023.
In his oral evidence, Dr Allan told the Tribunal that he believes that the ‘onset of [the Applicant’s] gradually developing condition’ was in late 2017 to early 2018.[237]
[237] Transcript of proceedings, 28 August 2023, 44.
In his 10 May 2023 report, Dr Shaikh stated:
It is reasonable to diagnose an adjustment disorder with mixed anxiety and depressed mood. The condition arises secondary to his reported ongoing pain, and the related restrictions in his abilities.
The Tribunal has found in paragraph [203] above that the First Review Application relating to the Applicant’s chronic pain condition claim is dismissed for abuse of process under section 42B(1)(c) of the AAT Act. Accordingly, if the Applicant’s psychological condition arises ‘secondary’ to his chronic pain condition, the Second and Third Review Applications which relate to the psychological condition must be dismissed under section 42B(1)(b) of the AAT as they have no reasonable prospects of success.
The Tribunal has considered the Applicant’s alternative argument that his diagnosed Adjustment Disorder is a consequence of the injury he sustained to his left biceps during the work incident on 12 January 2017, and the left biceps tendon surgery and recovery period which followed. This requires the Tribunal to consider whether the Applicant’s Adjustment Disorder is a ‘disease’ under the section 5B of SRC Act.
The Tribunal finds that the Applicant’s Adjustment Disorder is an ‘ailment’ defined in section 4(1) as ‘any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).’ In order for this to satisfy the definition of ‘disease’ in section 5B(1) of the SRC, the Applicant’s employment must have contributed, to a significant degree, to the condition.
In his report, Dr Shaikh opined that the Applicant’s Adjustment Disorder related not to the injury to his left biceps tendon in January 2017, but to subsequent symptoms and the compensation claims process:
There is inconsistency in information provided by [the Applicant], and rather than the initial injury, his condition appears to relate to his ongoing and more recent symptoms, and it is very probable that his ongoing involvement in the compensation process and decision therein have had contribution towards his mental health dysfunction.
During his oral evidence at the hearing, Dr Shaikh told the Tribunal that the Applicant told him that after the initial injury of January 2017 he ‘was frustrated with his ongoing physical injury complaints and his restrictions in movement, restrictions in abilities to do things.’ Dr Shaikh said that the Applicant reported to him ‘that it was the last two or three years that were most significant and to the extent that he had considered psychological treatment.’[238]
[238] Transcript of proceedings, 29 August 2023, 84-85.
In his oral evidence, Dr Shaikh was asked to elaborate on the statement in his report quoted above in paragraph [213], that the Applicant provided inconsistent information. He stated:[239]
So the inconsistency was about the history of psychiatric complaints. And [the Applicant], during the assessment, discussed the presence of emotional complaints dating back to the initial injury of January 2017. And then stated that he did not believe at the same time that psychological treatment was required or was going to be of benefit. And then he stated that whilst he was distressed with decisions taken by his employer or decisions in the course of the ongoing compensation process, this was not of much relevance and it was his ongoing pain that reflected his psychiatric condition and psychiatric symptomatology. From his reports however, and from the available documentation the information that I had was otherwise.
[239] Ibid, 84.
When asked whether he thought that the ‘frustration’ the Applicant felt following the injury to his left biceps tendon in January 2017 would give rise to any psychological diagnosis, Dr Shaikh stated that he ‘did not.’[240]
[240] Ibid, 85.
In his 11 July 2023 report, Dr Allan limited his answer in relation to causation to the work incident on 12 January 2017 that caused the Applicant’s arm injury and his lack of recovery and ongoing pain. In his oral evidence at the hearing, Dr Allan was not asked and did not give an opinion as to whether he was of the view that the Applicant’s employment contributed to his Adjustment Disorder, and if so whether this contribution was significant.
Dr Shaikh was asked how his opinion in relation to causation differs from that of Dr Allan. He stated:[241]
So the assessment of Dr Allan reflected that he believed the causation was from the events of January 2017 and the ongoing pain and disability from that initial injury. My discussion and my report reflected that I believe the causation was multifactorial. It was related to the chronic pain experienced by the claimant but also contributed to by decisions that have been taken whether it was – and the process of his compensation order by his employer which had led to emotional distress.
[241] Ibid, 84.
Based on the evidence before it, the Tribunal is not satisfied that the Applicant’s employment, specifically the work incident on 12 January 2017, contributed to his psychological condition to a significant degree. In making this finding, the Tribunal has placed considerable weight on Dr Shaikh’s view that the Applicant’s psychological condition is contributed to by his ongoing and more recent symptoms, and the high probability that his ongoing involvement in the compensation process and the denial of his claims have contributed to his condition.
The Tribunal is therefore not satisfied that Applicant’s ailment was contributed to, to a significant degree, by his employment. Accordingly, it finds that his psychological condition is not a ‘disease’ for the purposes of section 5B(1) of the SRC Act. It follows that the Applicant is not liable to payment of compensation for an ‘injury’ under section 14 of the SRC Act.
DECISION
The First Review Application is dismissed under section 42B(1)(c) of the AAT Act.
The Reviewable Decisions which are the subject of the Second and Third Review Applications are affirmed.

I certify that the preceding 222 (two hundred and twenty-two) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr Linda Kirk

......................................[SGD]..................................
Associate
Dated: 19 December 2023

Date(s) of hearing:

28, 29 and 30 August 2023

Counsel for the Applicant:

J. Mrsic, Fourth Floor Selbourne Chambers

Solicitors for the Respondent:

S. Wright, Australian Government Solicitor

Date(s) of hearing:	28, 29 and 30 August 2023
Counsel for the Applicant:	J. Mrsic, Fourth Floor Selbourne Chambers
Solicitors for the Respondent:	S. Wright, Australian Government Solicitor