Keceski and Comcare (Compensation)

Case [2023] AATA 1265

Keceski and Comcare (Compensation) [2023] AATA 1265 (18 May 2023)

Division:GENERAL DIVISION

File Number(s):      2020/6213, 2021/2611

Re:Vera Keceski

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Emeritus Professor P A Fairall, Senior Member

Date:18 May 2023

Place:Sydney

In accordance with subsection 43(1) of the Administrative Appeals Tribunal Act 1975 (Cth), the reviewable decisions dated 22 September 2020 and 7 April 2021 are affirmed.

...............[SGD].........................................................

Emeritus Professor P A Fairall, Senior Member

CATCHWORDS

WORKERS COMPENSATION – Whether employee entitled to compensation pursuant to s 12 or s 16 in respect of injury – repetitive strain injury (RSI) – chronic pain condition – conflicting medical evidence – somatic condition – causation

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)

Safety, Rehabilitation & Compensation Act 1988 (Cth) ss 4, 6, 7, 14, 16, 19, 23

CASES

BWFS v Comcare [2021] AATA 324

Comcare v Power [2015] FCA 1502

Commonwealth Banking Corporation v Percival (1988) 20 FCR 176

Howard v Comcare [2019] FCA 1031

REASONS FOR DECISION

Emeritus Professor P A Fairall, Senior Member

18 May 2023

INTRODUCTION

  1. These proceedings involve two applications by Ms Vera Keceski (the Applicant) for review on the merits of reviewable decisions made by Comcare (the Respondent) under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act). The first application (the NPE decision) relates to a decision by Comcare to terminate ongoing support for Ms Keceski on the basis that she no longer suffers the effects of an accepted injury. The second application relates to a refusal by Comcare of her claim for compensation for a chronic pain condition (CPC) said to have occurred in the course of her employment.

    CHRONOLOGY

  2. On 5 February 2014, Ms Keceski claimed workers compensation for repetitive strain injury (RSI) sustained in the course of her employment with the Department of Human Services (‘the Department’ - now Services Australia).[1] On 7 April 2014, Comcare accepted liability for ‘sprain of unspecified site of elbow & forearm (right) and wrist sprain (right)’.[2] The injury was deemed to have occurred on 27 June 2013.[3] On 8 May 2017, she lodged a further claim for ‘left lateral epicondylitis and left wrist tendonitis’. Comcare accepted the claim on 6 February 2018, with the date of injury being 24 April 2014.[4] The delegate accepted the findings of Dr Matthew Paul, and Dr Simone Ryan, two occupational physicians, who examined Ms Keceski at the request of the Respondent.

    [1] T7, 25, 29.

    [2] T12, 54.

    [3] T12, 58.

    [4] T73, 356, 362.

    The NPE decision

  3. On 7 July 2020, Comcare sent Ms Keceski a notice of intent to cease her entitlements, to which she replied in detail on 5 August 2020.[5] On 12 August 2020, Comcare issued a ‘No Present Entitlement’ (NPE) certificate.[6] The comprehensive report provided by the authorised delegate determined that she no longer suffered from any injury to which her employment made a significant contribution.[7] This conclusion drew heavily on a report dated 30 December 2019 by Dr Mark Ridhalgh,…

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Keceski and Comcare (Compensation) [2023] AATA 1265
Case
[2023] AATA 1265
Decision Date

CaseChat Overview and Summary

This matter concerned two applications before the Administrative Appeals Tribunal, brought by Ms Keceski against Comcare. The dispute arose from Comcare's decision to cease Ms Keceski's compensation entitlements following a 'No Present Entitlement' (NPE) certificate issued on 12 August 2020, and its subsequent refusal to accept liability for a claimed chronic pain condition. Ms Keceski had previously received compensation for repetitive strain injury (RSI) and wrist sprains in her right arm, accepted by Comcare in 2014 and 2018 respectively. The NPE decision concluded that Ms Keceski no longer suffered from any injury to which her employment contributed significantly, terminating her entitlements to medical treatment, incapacity benefits, and household services.

The Tribunal was required to determine whether Ms Keceski continued to suffer from the effects of her accepted arm injuries as of 12 August 2020, and if so, whether these injuries resulted in any incapacity for work or the need for reasonable medical treatment or care services. Furthermore, the Tribunal had to consider whether Comcare was liable to pay compensation for a newly claimed condition of 'Bilateral Chronic Pain, Bilateral RSI', first noticed in January 2015, and whether this condition constituted an 'injury' under the relevant legislation.

The Tribunal's reasoning focused on the critical question of causation. While Ms Keceski argued that her chronic pain condition was a direct result of her original work injuries and that the chain of causation remained unbroken, Comcare relied on medical evidence suggesting her current presentation was unrelated to those physical injuries. The Tribunal acknowledged the conflicting medical opinions presented by various specialists, particularly regarding the link between repetitive keyboard and mouse use and the development of chronic pain. The central issue was whether the accepted injuries continued to cause incapacity or impairment, or if the chronic pain condition itself constituted a new injury for which Comcare could be held liable.

Ultimately, the Tribunal reviewed Comcare's NPE decision and the subsequent refusal to accept the chronic pain condition claim. The outcome of these reviews determined whether Ms Keceski's compensation entitlements would be reinstated or if the claims for ongoing incapacity and the chronic pain condition would be dismissed.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

In summary, Comcare is liable to pay compensation ‘in respect of an injury’ suffered by an employee if ‘the injury results in’ incapacity for work or impairment under section 14. Certain medical costs ‘in relation to the injury’ may be recovered from Comcare under section 16. Comcare is liable to pay for certain household expenses obtained ‘as a result’ of an injury under section 29.BACKGROUND The following outline is taken from various sources for the purpose of historical narrative. Ms Keceski was born in 1965.[18] She is one of two children but is estranged from her brother. Her mother died when she was 26 years old.[19] From 2012 she provided for her father who suffered Parkinson’s disease. He died in September 2021. She had two substantial relationships but was single at the time of the hearing. She has a 37-year-old daughter and lives alone.[20] [18] Applicant’s Statement, para 2, ST91, 501.[19] T4, 15.[20] ST85, 428. Between 1985 and 2007 she worked in various administrative and managerial roles, including for Australia Post as a customer service adviser from 2003 to 2007.[21] [21] Pre-Employment Medical Report and Questionnaire: ST2, 8. In early 2007 she applied for a job with the Child Support Agency (CSA). She was then employed as an APS level 3. On 23 February 2007, she completed a mandatory Health Status Assessment form.[22] The form stated explicitly that the purpose of the assessment was to assist the CSA and the candidate for employment to determine their medical compatibility with the requirements of the job. It was intended to ensure that a phone intensive environment would not exacerbate or worsen any underlying medical condition, and to ensure that an existing condition did not interfere with a person's capacity to do their job. She did not disclose any previous medical history. She completed and signed the form in the presence of a medical examiner. Given the stated absence of any reported neck or lower back injuries, upper or lower limb problems, or psychological conditions,[23] the medical examiner confirmed that she was medically suitable to perform the duties she was required to perform.[24][22] Ibid, ST2, 11.[23] Ibid, ST2, 12.[24] Ibid, ST2, 18. On 26 March 2007, she started working as an Employment Services Officer (APS4) in the CSA. Her initial role involved making decisions about child support where parents objected to an assessment. This was referred to as ‘Objections’. From 2009 she experienced conflict with her colleagues.[25] She was also the subject of complaints about her behaviour by customers and colleagues, which she strenuously denied.[26] [25] Applicant’s Statement, para 6, ST91, 501.[26] ST90. In 2011, she was the subject of a complaint by colleagues about her treatment of them.[27] Although she was cleared after inquiry, she received a formal warning. Following this incident, she provided a Workcover certificate which referred to stress and anxiety.[28] She was off work from 28 May – 15 July 2011. She applied unsuccessfully for workers compensation. Details of this application have not been provided to the Tribunal but are referred to in various medical reports.[29] [27] ST90, 481.[28] ST90, 481[29] ST90, 482. See for example, report by Dr Frank Chow dated 21 March 2017, T62, 295, at 296: “She said she put in a claim in 2011 after she was accused of yelling at other staff. She stated she eventually pulled out of the claim.” Dr Ridhalgh refers to this matter as well.

Evidence

Evidence Before The Court

In these applications, the Tribunal is given the task of disentangling and disposing of two claims associated with chronic pain. In the first matter, pain appears as a symptom of the original injuries, for which compensation was paid until the NPE decision. In the second, pain itself may constitute the injury.EVIDENCE The Tribunal heard from Ms Keceski and from her former team leader Mr Mark Salmon, an administrative officer employed by the Department. Dr Ryan and Dr Ridhalgh were called by the opposing parties. Dr Ryan is an occupational physician and Dr Ridhalgh an orthopaedic surgeon. The Applicant also called Dr Tim Ho, a rehabilitation and pain specialist, while the Respondent called Dr David Gorman, a pain management physician, Associate Professor Dr Neil McGill, a consultant rheumatologist, and Dr David Vivian, a musculoskeletal physician with a special interest in interventional pain techniques. Each of the medical experts was highly qualified and experienced in their fields and the Tribunal is grateful for their expertise. The Applicant’s Statement of Facts, Issues and Contentions (ASFIC) sets out a useful chronology of medical reports spanning the period 2014 to 2021. The Respondent’s counsel, Mr Kelly, did not take issue with the summary, although he declined to endorse every medical opinion contained in the various reports.[70] I wish to add that I found the summary extremely helpful, although I have decided not to set it out in this decision due to its length. [70] See RSFIC, 3.1. The Tribunal was provided with an extensive medical record relating to both applications. The record is simply too voluminous to identify individual documents, which are referenced in the decision. WITNESSES (a)Ms Keceski The Applicant’s statement of 16 June 2022 was tendered in evidence.[71] She gave evidence over three days. Her evidence was regrettably interrupted due to technical difficulties, and to allow for the interposing of other witnesses. [71] ST91, 501. She was examined extensively on her work history with the Department and her past medical record. Her central claim is that her workload was unmanageable and unfair. She simply did not have enough time to get the work done. She could not keep up. If she had time off, on her return she was required to complete her previous work allocation as well as work assigned on her day off. In one instance she was required to attend work in the middle of her leave of absence. She considered that her team leader was unsympathetic to her restricted work conditions, and that he was giving her an unfair allocation of work. She felt that she was being set up to fail. Mr Kelly drew attention to the medical assessment form completed and signed by her as part of the initial recruitment process. He asked her why she had failed to disclose aspects of her previous medical history. He referred to treatments she had received for anxiety and depression, dizziness and fainting, and pain in her Achille’s tendon, which she put down to ill-fitting shoes. She said that none of her symptoms were sufficiently “debilitating” to warrant disclosure on the form. Her depression was “reactive”. In her opinion, her medical history at the time did not limit her and therefore she was not required to disclose it. She experienced depression a long time ago during a relationship breakdown with her daughter’s father, for which she did not receive treatment.[72] [72] See ST91, 501, para 4.

Decision

Reasons for decision

On 5 February 2014, Ms Keceski claimed workers compensation for repetitive strain injury (RSI) sustained in the course of her employment with the Department of Human Services (‘the Department’ - now Services Australia).[1] On 7 April 2014, Comcare accepted liability for ‘sprain of unspecified site of elbow & forearm (right) and wrist sprain (right)’.[2] The injury was deemed to have occurred on 27 June 2013.[3] On 8 May 2017, she lodged a further claim for ‘left lateral epicondylitis and left wrist tendonitis’. Comcare accepted the claim on 6 February 2018, with the date of injury being 24 April 2014.[4] The delegate accepted the findings of Dr Matthew Paul, and Dr Simone Ryan, two occupational physicians, who examined Ms Keceski at the request of the Respondent. [1] T7, 25, 29.[2] T12, 54.[3] T12, 58.[4] T73, 356, 362.The NPE decision On 7 July 2020, Comcare sent Ms Keceski a notice of intent to cease her entitlements, to which she replied in detail on 5 August 2020.[5] On 12 August 2020, Comcare issued a ‘No Present Entitlement’ (NPE) certificate.[6] The comprehensive report provided by the authorised delegate determined that she no longer suffered from any injury to which her employment made a significant contribution.[7] This conclusion drew heavily on a report dated 30 December 2019 by Dr Mark Ridhalgh, Consultant Orthopaedic Surgeon.[8] The delegate stated:I am not persuaded away from my view that, on balance, Ms Keceski’s employment has not and does not contribute to a significant degree to her current presentation, which is unrelated to the physical injuries suffered in 2013 and 2014.[9][5] T80, 417; T81, 418.[6] T83, 446.[7] T82, 427, 444.[8] T78, 390, 396.[9] T82, 427, 444. On 22 September 2020, Comcare affirmed the NPE decision on internal review (the first reviewable decision).[10] This terminated Ms Keceski’s entitlements to compensation for medical treatment, incapacity benefits, or household services. On 9 October 2020, she applied to the Administrative Appeals Tribunal (the Tribunal) for review of this decision.[11] [10] T85, 450, 458.[11] Matter 2020/6213: T2, 3, 5. Chronic Pain Condition (CPC) On 12 October 2020, Ms Keceski submitted a further claim for ‘Bilateral Chronic Pain, Bilateral RSI’ first noticed in January 2015.[12] The newly reported condition related to ‘Both hands, both thumbs, both wrists, outer and inner arms below elbow, both shoulders across back and up into neck on both sides’.[13] [12] PT4, 6, 7.[13] PT4, 8. On 25 February 2021, the claim officer determined that Comcare was not liable to pay compensation pursuant to section 14 of the SRC Act in respect of the claimed pain condition.[14] On 7 April 2021, Comcare affirmed this decision on internal review,[15] based on a detailed report prepared by a delegate.[16] Ms Keceski also applied to the Tribunal for review of this decision.[17] [14] PT6, 14; PT8, 26. [15] PT14, 63.[16] PT13, 53-62. [17] Matter 2021/2611: PT2, 3. LEGISLATION The following statutory provisions of the SRC Act are relevant to these applications.

Ratio Decidendi

Legal Principle Established

However, he recommended evaluation with nerve conduction studies, followed up with a neurologist and an opinion from a pain physician.[132] CONSIDERATION[132] PT12, 45; ASFIC, 3.1.41.The NPE decision - 2020/6213 The critical questions are whether, as of 12 August 2020, Ms Keceski continued to suffer from the effects of the accepted arm injuries, and if so, whether those injuries resulted in any incapacity for work or the need for reasonable medical treatment or household and attendant care services. The question is not simply whether the Applicant was in fact incapacitated or impaired, but whether any such incapacity or impairment was the result of the index injuries. The Tribunal must be positively satisfied that the injuries in respect of which it has previously accepted liability no longer, as of 12 August 2020, result in incapacity for work or impairment. Mr Hilliard argued that she continued to experience the effects of the workplace injury as of 12 August 2020. The original injuries had not resolved and there was a direct causal link between her original work injuries and her experience of chronic pain. He submitted:… the chain of causation between the work, the inadequate and inappropriate measures initially taken, the continuation of issues whilst continually engaged in computer work, the partial resolution after cessation of work, and the prolonged incapacity by the failure of the department to continue to engage in rehabilitation program support, is clear and is unbroken. She would not have this debilitating pain condition had she not been injured at work and hence the cease effects decision should be overturned.[133] (Emphasis added)[133] Transcript, 23 November 2022, 77. Mr Hilliard relied heavily upon the evidence of Dr Ryan. In her professional opinion, the original injuries had not resolved. She did, however, accept that by 12 August 2020 the original injuries had been “superseded” by a chronic pain condition. She described this in her oral evidence as a “sequalae”, by which I take her to mean that there was a causal link between her original injuries and the chronic pain condition. In her report of 18 December 2017, Dr Ryan opined that Ms Keceski had developed a chronic pain condition and diagnosed “bilateral occupational overuse syndrome triggering chronic pain syndrome”.[134] [134] T71, 349-350. Whether factors such as repetitive movement can give rise to local inflammation and sensations of pain, or chronic pain, that continue after the cessation of those activities is of course a medical or scientific question. On that question there were deep divisions between the expert witnesses. The specialists called by the Respondent were sceptical of the claim that repetitive use of a mouse/keyboard combination could cause an injury, to say the least. Dr Vivian, Dr Gorman, Dr McGill and Dr Ridhalgh were deeply sceptical of the theory that her injuries were associated with repetitive wrist action. Some of the academic papers provided by Dr McGill showed some tenuous connection between lateral epicondylitis and repetitive keying. But upon examination he concluded that the published literature did not support an association between keying activities and lateral epicondylitis.[135][135] Report dated 3 March 2021, p 8.