Millar and Comcare (Compensation)

Case [2019] AATA 4973

Millar and Comcare (Compensation) [2019] AATA 4973 (27 November 2019)

Division:                  GENERAL DIVISION

File Number(s):      2016/1558; 2016/4101; 2016/2578

Re:Tricia Millar

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Deputy President Gary Humphries AO

Date:27 November 2019

Place:Canberra

1.The reviewable decisions dated 21 April 2016 and 7 July 2016 are affirmed.

2.The Tribunal sets aside the reviewable decision dated 22 March 2016 and finds instead that Ms Millar suffered a tear of the medial meniscus (left knee) on 15 March 2010 pursuant to s 14 of the Safety, Rehabilitation and Compensation Act 1988.

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

Deputy President Gary Humphries AO

Catchwords

COMPENSATION – whether three claimed conditions are injuries for the purposes of the Safety, Rehabilitation and Compensation Act 1988 – whether the Applicant’s thoracic condition had resolved – whether the Applicant suffered from chronic pain condition, a sequela of the thoracic condition – whether the applicant suffered a tear of the medial meniscus (left knee) – whether the Applicant is a witness of credit – multiple instances of inconsistent and irreconcilable accounts provided in evidence to the Tribunal – reviewable decisions on thoracic and chronic pain conditions affirmed – reviewable decision on knee condition set aside and substituted

Legislation

Safety, Rehabilitation and Compensation Act 1988

Cases

Australian Postal Corporation v Lucas (1991) 33 FCR 101
Beezley v Repatriation Commission [2015] FCAFC 165
Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1
Cosgrove-Kaye and Comcare [2019] AATA 1238
Comcare v Power [2015] FCA 1502
Comcare v Reardon [2015] FCA 1166
Commonwealth v Beattie (1981) 35 ALR 369
Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626
Hopkins and Comcare [2016] AATA 742
Howard v Comcare [2019] FCA 1031
Mellor v Australian Postal Corporation & Anor [2009] FCA 504
Military Rehabilitation and Compensation Commission v Katterns [2017] FCA 641
Military Rehabilitation and Compensation Commission v May [2016] HCA 19
Richard Evans & Co Ltd v Astley [1911] AC 647
Stefaniak and Comcare [2019] AATA 1866
Singleton and Comcare [2018] AATA 4088

Williamson and Comcare [2019] AATA 4774

REASONS FOR DECISION

Deputy President Gary Humphries AO

27 November 2019

INTRODUCTION

  1. Ms Tricia Millar joined the Australian Federal Police (AFP) in February 2010. At the time of the hearing she was still a police officer, though at the rank of probationary constable; the medical issues which were the subject of these proceedings have prevented her progressing beyond this rank. She was born in 1968, and was 49 years old at the commencement of the hearing. She now lives in Darwin.

  2. She claimed to have been injured during recruit training at the AFP College in Canberra in February or March 2010, when she fell off a rowing machine and twisted her left knee. She submitted a claim for workers compensation in respect of her knee on 15 November 2015, but Comcare, the Respondent in these proceedings, denied liability under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (the Act) on 1 February 2016 in respect of strain…

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AGLC
Millar and Comcare (Compensation) [2019] AATA 4973
Case
[2019] AATA 4973
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal by Ms Millar against decisions made by Comcare regarding her entitlement to compensation under the *Safety, Rehabilitation and Compensation Act 1988* (Cth). The dispute involved three claimed conditions: a thoracic condition, a chronic pain condition alleged to be a sequela of the thoracic condition, and a tear of the medial meniscus in her left knee. The case was heard by Deputy Gary Humphries P.

The primary legal issues before the court were whether the three claimed conditions constituted injuries for the purposes of the Act, whether Ms Millar’s thoracic condition had resolved, and whether she suffered from a chronic pain condition as a sequela of that thoracic condition. A further issue was whether Ms Millar was a witness of credit, given multiple instances of inconsistent and irreconcilable accounts provided in her evidence.

The court found that Ms Millar's claims, particularly concerning the chronic pain condition, rested heavily on her own evidence of experiencing pain, making her credit a threshold question. The Tribunal concluded that Ms Millar was not a witness of credit, noting significant inconsistencies in her evidence and discrepancies in medical examinations regarding her physical capacity, which were difficult to explain on a purely physical basis. The court affirmed the reviewable decisions relating to the thoracic and chronic pain conditions. However, the Tribunal set aside the reviewable decision concerning the knee condition.

The court found, on the balance of probabilities, that Ms Millar’s employment by the AFP had contributed to a significant degree to the development of a tear of the medial meniscus in her left knee. A notional date of injury of 15 March 2010 was made due to the uncertainty of the exact date. The Tribunal reserved its decision on costs.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

An injured worker may be entitled to compensation under other provisions of the Act. Section 16 sets out entitlements to the cost of medical treatment, s 19 to entitlements to incapacity payments and s 29 to entitlements to the cost of household services. However, the establishment of liability under s 14 is the sine qua non without which these entitlements generally cannot be accessed. MS MILLAR’S EVIDENCE On about 15 February 2010 Ms Millar commenced as a Recruit Police Officer at the AFP College in Barton, ACT. She was medically assessed for this role prior to commencement. She had previously served in the Australian Army until 2007, including as a military police officer. In a Statement of Medical History on joining the AFP, dated 24 February 2010, she disclosed that in 2007 she underwent a C5/C6 discectomy as a result of some blows to the neck she received while in the Army, but that she had been free of symptoms for more than 12 months. She told the Tribunal this operation occurred in about April 2007. A tendered statement dated 20 February 2017 indicated that I felt I had fully recovered by December 2007. She also suffered an injury to her right knee during her Army service, from which she fully recovered, she said. She gave evidence that, between about 15 February 2010 and 15 March 2010 she was participating in a physical training (PT) session under the supervision of an instructor during which she used a rowing machine. She became unbalanced, she said, and fell off the rowing machine to her right and onto the floor. Her left foot remained in its stirrup, causing her left knee to twist with her left leg stretched over the top of the apparatus, placing her knee under strain as her body weight was pulling on her left leg. She noticed soreness in her left knee and in other parts of her body, but did not report the injury at this time. In the witness box she said the incident involved the event that I suspect was the time, one of those times was when my injury occurred [sic]. When asked under cross-examination whether she had noticed anything at the time of this incident to suggest injury to her knee, she said everything hurt at the time. On the morning of about 15 March 2010 Ms Millar was participating in another PT session in which she was required to run up and down grass slopes. She gave evidence that during the course of running and turning she felt a sharp pain in her left knee. Thereafter she experienced pain when turning and running down the hill. She reported pain in her left knee, and she noticed restrictions in the knee’s movements and swelling. She reported the incident to an instructor, who arranged for Ms Millar to see a physiotherapist at the college. The physiotherapist instructed her to apply ice to her knee over the next 24 hours. She told the Tribunal that, at this consultation, she had forgotten about falling off the rowing machine and did not inform the physiotherapist of this incident. An incident report dated 15 March 2010 noted that Ms Millar reported stabbing/burning sensation running through the back and front of both knees during a PT session.

Decision

Reasons for decision

On the balance of probabilities, I consider that her employment by the AFP did contribute, to a significant degree, to the development of a tear of the medial meniscus (left knee).CONCLUSION The reviewable decisions of 21 April 2016 and 7 July 2016, relating to the thoracic and chronic pain conditions respectively, must be affirmed. However, the Tribunal sets aside the reviewable decision of 22 March 2016 and finds instead that Ms Millar suffered a tear of the medial meniscus (left knee) which was significantly contributed to by her employment by the AFP. Because the date of injury is uncertain, I make a (notional) finding that it occurred on 15 March 2010. The Tribunal reserves its decision on the question of costs pursuant to s 67 of the Act. The parties are invited to make submissions on the question by 9 December 2019.

Ratio Decidendi

Legal Principle Established

With respect to the pain in Ms Millar’s lower body, Prof Cohen said this:… you have sought to explain what this lady might be suffering within your field of specialty and I think we ended up with nociplastic pain, is that right? Yes, nociplastic pain or nociplastic condition. You agree with that?‑‑‑I agree that we ended up - I thought she had nociplastic pain but that was applied to the upper body complaints. Right. And what about the parts of her body? What are you applying or are you able to form an opinion about what ‑ ‑ ‑?‑‑‑I haven't actually assessed her form the point of view of the other parts of the body. Why is that?‑‑‑I wasn't asked to. CONSIDERATION There are three conditions Ms Millar claims to have suffered, and which are before the Tribunal in these proceedings. The first (in time) of those is a claim for strain of cruciate ligament of knee (left) sustained in February or March 2010 (which I will call the knee condition). The second is a claim for lumbar sprain (bilateral) and contusion of chest wall (bilateral) sustained on 9 November 2010. Although Comcare accepted liability under s 14 for a condition using this description in February 2011, later medical opinion focused on the thoracic spine as the most likely site of the injury. Accordingly, I call this condition the thoracic condition. The third condition is a condition said to be a sequela of the thoracic condition, namely a chronic pain condition. It must be observed that there is limited pathological evidence before the Tribunal for these conditions, most particularly the chronic pain condition. To varying degrees her claims rest on her own evidence of experiencing pain. Therefore, much turns on the threshold question of whether Ms Millar should be regarded as a witness of truth.Ms Millar’s credit Comcare put to the Tribunal that Ms Millar was not a witness of credit. After giving careful consideration to the evidence before it, the Tribunal agrees with this submission. Reasons for that conclusion are set out below. Ms Millar gave evidence over three days. She appeared to be in some discomfort, even pain, during much of this process. She also told the Tribunal that many of the events she was asked to recall occurred a long time ago. These factors may partially account for the vagueness and lack of specificity in many of her answers. However, the Tribunal was troubled by what seemed to be a lack of satisfactory explanation for essential inconsistencies in the matters she was placing in evidence. She answered many questions with I don’t recall. Before examining those areas of inconsistency, I turn to the medical evidence, some of which raises issues about credibility. In February 2012 Dr Gorman examined her and found her capable of Straight leg raising… to 80° bilaterally, despite her suffering widespread pain. However, Dr Christian recorded a capacity for straight leg raising of only 10° in August 2011, while in February 2016 Dr Eaton recorded a left leg raise of 10° and right leg of 5°. Dr Le Leu, the occupational physician, agreed under cross-examination that this was an enormous discrepancy and one which was hard to explain on a physical basis. He said that discrepancy could be explained by a conscious falsehood or an unconscious psychological issue. He later appeared, however, to concede that if, as Dr Zsadanyi (an excellent psychiatrist) had opined, Ms Millar did not suffer from a psychiatric condition, then the discrepancy must be conscious, i.e. the deliberate exaggeration of her symptoms.