Kate Farrer and Comcare
[2014] AATA 943
•18 December 2014
[2014] AATA 943
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/6989
Re
Kate Farrer
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal Dr P McDermott RFD, Senior Member
Date 18 December 2014 Place Brisbane The Tribunal sets aside the reviewable decision of 31 October 2013 and remits the case to the respondent for re-determination, and order that the costs of proceedings before it incurred by the applicant (if any) shall be paid by the respondent.
...........................[Sgd].............................................Dr P McDermott RFD, Senior Member
CATCHWORDS
COMPENSATION – Whether respondent liable for applicant’s neuropathy or chronic neuropathic pain – Further investigation of condition required – Decision set aside and remitted to respondent for re-determination, with costs incurred by applicant payable by the respondent.
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth), s 2A
Safety Rehabilitation and Compensation Act 1988 (Cth), ss 5A, 5B, 14, 66, 67, 69
REASONS FOR DECISION
Dr P McDermott RFD, Senior Member
18 December 2014
INTRODUCTION
Mrs Kate Farrar (“the applicant”) commenced employment in an administrative position with the Department of Defence in 2007. On 22 February 2013 the applicant lodged a claim for workers’ compensation for “neuropathy or chronic neuropathic pain”.
On 7 May 2013 a determination was issued which denied liability for “neuropathy or chronic neuropathic pain (lumbar back)”. On 9 September 2013 the applicant requested a reconsideration of the determination. On 31 October 2013 a reviewable decision was made which affirmed the determination of 7 May 2013. The applicant has made an application to this Tribunal for review of the reviewable decision.
LEGISLATION
I have to determine whether there is liability under s 14 of the Safety Rehabilitation and Compensation Act 1988 (Cth) (“the Act”) for the condition of “neuropathy or chronic neuropathic pain”. For there to be liability under s 14 the applicant must sustain an “injury”, which is relevantly defined in s 5A of the Act to mean:
(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.
“Disease” is defined in s 5B of the Act to mean
(a) an aliment 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.
The term “significant degree” is defined by s 5B(3) of the Act to mean “a degree that is substantially more than material”.
MEDICAL REPORTS
“T- Documents”
The “T-Documents”[1] which were filed on 4 February 2014 contained a number of medical reports.
[1] Exhibit A.
Dr David Douglas, Consultant Occupational Physician
The “T-Documents” contained reports of Dr David Douglas dated 30 April 2013 and
30 September 2013.[2] On 6 November 2014, the day prior to the hearing, the respondent filed a report of Dr Douglas dated 4 April 2014. Mr Farrer, the husband of the applicant who acted as her advocate, pointed out that this report could not be properly understood without reference to some other reports of Dr Douglas. For example, Mr Farrer pointed out that Dr Douglas had issued two different reports on 4 April 2014. In the hearing,
Mr Farrer tendered an exchange of emails that he had with the solicitors of the respondent. That email correspondence detailed Mr Farrer’s request that the reports of
Dr Douglas be summoned as the reports of other medical practitioners had been provided. The respondent’s solicitors advised the applicant that they did not propose to issue a summons to Dr Douglas “given he was not a treating practitioner”.[3] However it was important in my view for all reports of Dr Douglas to be tendered into evidence. This is not only because he had examined the applicant on a number of occasions but, as was pointed out by Mr Farrer, the reviewable decision had referred to some reports of
Dr Douglas.
[2] Exhibit A, T30, pages 177-195.
[3] Exhibit I.
Counsel for the respondent had informed the Tribunal that she had arranged for the report of Dr Douglas dated 4 April 2014 to be filed in the Registry of the Tribunal. Counsel had certainly acted properly in arranging for the filing of that document. However, the receipt of that document just one day before the hearing may have necessitated an adjournment of the hearing. The applicant did not seek an adjournment. At the hearing the respondent adverted to the fact that as the applicant did not seek to rely upon the reports of
Dr Douglas. However, having regard to the inquisitorial function of the Tribunal, I thought that it was important that the available reports of Dr Douglas be admitted into evidence. The applicant had copies of other reports of Dr Douglas that were not in the “T-Documents”, or not in the possession of the respondent. Counsel for the respondent acted quite properly in tendering the reports of Dr Douglas dated 4 April 2014 (reference on report “S36”), 4 April 2014 (reference on report “FFD”), and 29 April 2014 which were received into evidence.[4]
[4] Exhibits D, E, and F.
I am not satisfied that all of the reports of Dr Douglas have been admitted into evidence. In his report dated 4 April 2013 (reference on report “FFD”), Dr Douglas has referred to a report dated 7 November 2013. This report is not in evidence and none of the parties had a copy of this report.
As Dr Douglas has examined the applicant on a number of occasions, it would have been useful for him to be a medical witness as he has opined that physical activities and posture will make the symptoms worse.
Dr Cameron, Neurologist
At the hearing the respondent tendered a report dated 13 May 2014 of Dr John Cameron, neurologist, which was admitted into evidence.[5] Dr Cameron was commissioned by the representatives of the respondent to examine the applicant and provide a report regarding the applicant to this Tribunal.
[5] Exhibit C.
CONSIDERATION
On 5 January 2007 the applicant commenced employment with the Defence Materiel Organisation, Department of Defence. The applicant worked in an office environment where her duties were largely administrative and clerical in nature.
The supervisor of the applicant from December 2008 until August 2009 was
Wing Commander Guedon who has discussed the duties performed by the applicant:
Nature of duties were of a sedentary nature involving predominantly extensive computer work sitting in meetings… Mrs Farrar also worked long hours in occasions, travelled and delivered briefs to senior Officers which in my opinion could all contribute to her condition… I was aware that Mrs Farrar had back related issues… At the point of time of my observation period, there was no event that required changes to her duties… I have no doubt that the nature of sedentary duties can exacerbate the problem.[6]
[6] Exhibit H.
The applicant has made an application for compensation for her neuropathy and chronic neuropathic pain in her lumbar spine, hip and left leg which have gradually worsened since June 2008.
The respondent accepts that the applicant has not suffered any back pain prior to
June 2008. I am satisfied that this concession by the respondent is certainly appropriate as the health assessments of the applicant that were made during her service in the
Royal Australian Air Force do not contain any reference to back pain.[7]
[7] Exhibit B, T1, T2 and T3.
There is no dispute that the applicant is in pain. In the reviewable decision the review officer remarks: “I am satisfied that you have suffered from an ailment, namely neuropathic pain to the lower back”.[8] That the applicant continues to suffer from pain has been confirmed by a number of medical practitioners. Dr Cameron in his report of
13 May 2014 as well as in his oral evidence before the Tribunal has confirmed that this is the case. Dr Cameron reports that the applicant:
…is certainly troubled by her discomfort, is walking with a prominent limp, could not weight [sic] support on the left foot. She has restricted back movement, could not do straight leg raising. She has minimal wasting of the left calf and has slight alteration of sensation in a probable S1 distribution. [9]
[8] Exhibit A, T31, page 199.
[9] Exhibit C, page 6.
In 2008, Dr Sangeeta Nagpal referred the applicant to a radiologist Dr H Naidoo, who opined that the applicant’s pain may be caused by a posterior disc bulge at the L5/S1 level of the spine pushing on the right S1 nerve root.[10] However, a CT guided S1 nerve root injection in 2011 “states that the limited examination… show[ed] no disc herniation or change and… no evidence of radiculopathy involving with the left L5 or S1 nerve”,[11] no abnormalities were then detected as to the cause of the pain.[12]
[10] Exhibit A, T2, page 13; Exhibit A, T34, page 34.
[11] Exhibit A, T2, page 13; Exhibit A, T34, page 216.
[12] Exhibit C, page 4.
On 8 August 2011 the applicant was operated upon for the removal of a desmoid tumour. On 25 June 2013 Dr Scott Somerville, orthopaedic surgeon, remarked that in his opinion “the suggestion that the treated tumour is the cause is erroneous”. Dr Somerville explained: “The pain pre-dated the tumour” and “[d]esmoid tumours tend to present as painless, enlarging masses and this is one, being in the subcutaneous tissues at the posterior ilium, could not cause the symptoms referable to her lower back or left leg”.
There are certainly a number of references in the medical evidence to the applicant suffering from neuropathic pain. More recently, on 11 February 2014 Dr Peter Georgius,
Pain & Rehabilitation Specialist, has stated that her condition is “highly suggestive of elements of neuropathic pain”.[13] However, as Dr Cameron has explained “this is a purely descriptive term as to the nature of the pain but gives no insight into the cause of the disturbance.”[14] Dr Cameron has concluded that “no cause has been found for
Mrs Farrar’s pain disturbance”.[15] Both in his report and in his oral evidence, Dr Cameron stated that he has never seen a presentation like this caused by sitting in a chair for periods of four to five hours at a time particularly when there is no underlying spinal pathology or pathology intrinsic to the vertebral column affecting the nerve.
[13] Exhibit A, T23, page 159.
[14] Exhibit C, page 5.
[15] Ibid.
Both Dr Masters and Dr Andrews consider that the work of the applicant has contributed to her problem. While the reports of these medical practitioners were not challenged by the respondent, those reports do not fully explain the basis of their conclusions. In a report dated 16 August 2013, Dr Andrews remarked: “I am unsure as to what is the actual cause of her condition”.[16] In a report dated 28 August 2013, Dr Masters remarked:
“An exact reason or causation for her pain will likely be problematic”.[17]
[16] Exhibit A, T26, page 164.
[17] Exhibit A, T27, page 169.
On 11 February 2014 Dr Georgius, Pain & Rehabilitation Specialist, commented
“[t]he exact nature and cause of the pain is not explained with the investigations to date”.[18] There is considered opinion that there is a need for further investigation of the condition of the applicant. Dr Douglas in his report of 4 April 2014 (reference on report “FFD”)[19] had recommended “a bone scan to determine if there are any particular focal hotspots, which could be associated with her exiting S1/2 nerve”.[20] Dr Cameron in his report of 13 May 2014 had recommended that there was a need for a
PET (positron emission tomography) scan. Dr Cameron remarked:
I would strongly suggest that [Mrs] Farrer undergo a PET scan of her body in view of the nature of her symptoms and her past history of her desmoid tumour. I would be happy to arrange this if you feel that this would add some light to a diagnosis. It is quite likely that the test will be normal. If any abnormality is defined however, it would certainly mean that the disturbance is not work related.[21]
[18] Exhibit J.
[19] Exhibit E.
[20] Exhibit E, page 2.
[21] Exhibit C, page 8.
I asked Dr Cameron whether a PET scan had been administered to the applicant, and he confirmed that no PET scan had yet been done. Mr Farrer, the advocate of the applicant, has also confirmed that this procedure has not been undertaken.
Dr Douglas in his report of 4 April 2014 (reference on report “FFD”),[22] had also recommended that there was a need for further neurological investigation in the form of nerve conduction studies. This is why during the hearing of this application I asked
Dr Cameron whether any nerve conduction studies have been undertaken. Dr Cameron confirmed that Dr Peter Patrikios, consultant neurologist, in his report dated
29 May 2013 disclosed that he undertook such studies and found no evidence of peripheral neuropathy. The report of Dr Patrikios was then tendered in evidence.[23]
[22] Exhibit E.
[23] Exhibit K.
The respondent has an obligation under s 69 of the Act to make determinations “accurately” in relation to claims made under the Act. It is my conclusion that the condition of the applicant requires further investigation as recommended by Dr Cameron and Dr Douglas. Having regard to this statutory obligation of the respondent to make an accurate determination, a fair and appropriate as well as the most economical[24] course of action is to remit this matter to the respondent for re-determination of liability under
s 14 of the Act. Dr Douglas has also referred to the fact that the applicant has been treated by Dr Fraser. It may be the case that Dr Fraser may be able to give an insight into the condition of the applicant. I also mention that Professor Robin Creyke has mentioned at a recent seminar that there may be longer term financial advantage for an agency if the Commonwealth arranges for and pays the cost of a specialist to test whether the prolongation of a person’s physical condition is attributable to work or has another cause.[25]
[24] Administrative Appeals Tribunal Act 1975 (Cth), s 2A.
[25] Creyke R, “Helpful Harry? Duty to Assist – the view of a former tribunal Member” (Paper presented to the Law Council of Australia, Federal Litigation and Dispute Resolution Section, Hot Topics in Commonwealth Compensation, Sydney, 12 December 2014).
I am required under s 67(9) of the Safety Rehabilitation and Compensation Act 1988 (Cth) to make an order that the costs of proceedings before it incurred by the applicant shall be paid by the responsible authority. Comcare is defined to be the responsible authority under s 67(1A)(a) of the Act. As the applicant was represented by her husband, Mr Farrer, it may be the case that she has not incurred any costs at all. In any event the order will enable the applicant to claim any costs that may have been incurred.
In this case the applicant had not been advised of the implications of s 66(1)(b) of the Act which places certain restrictions on claimants presenting evidence to the Commonwealth, these restrictions do not apply to the Commonwealth. In my view it is fair that an unrepresented applicant in a Workers’ Compensation case should be alerted to
s 66(1)(b) of the Act.
DECISION
I set aside the reviewable decision of 31 October 2013 and remit the case for
re-determination by the respondent.
Pursuant to s 67(9) of the Act I order that the costs of proceedings before it incurred by the applicant shall be paid by the respondent.
I certify that the preceding 26 (twenty -six) paragraphs are a true copy of the reasons for the decision herein of
Dr P McDermott RFD, Senior Member............................[Sgd].............................................
Associate
Dated 18 December 2014
Date of hearing 7 November 2014 Advocate for the Applicant David Farrer Counsel for the Respondent Elenne Ford Solicitors for the Respondent Matthew Hawker, Sparke Helmore
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