Millar and Comcare (Compensation) - [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.

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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

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.
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 of cruciate ligament of knee (left).[1] It affirmed that decision on reconsideration on 22 March 2016, and Ms Millar filed an application for merits review of that decision with the Tribunal on 29 March 2016 (matter 2016/1558).
[1] The use of italics in this decision generally indicates direct quotation.
On about 9 November 2010 Ms Millar was participating in the execution of a search warrant in Sydney when she lifted a large evidence bag containing various documents and injured her back. On 1 February 2011 Comcare accepted liability under s 14 for a condition of lumbar sprain (bilateral) and contusion of chest wall (bilateral). However, on 23 March 2016 Comcare determined that it had no present liability for Ms Millar’s treatment expenses, incapacity payments or household services under ss 16, 19 or 29 of the Act in respect of this condition. It affirmed that decision on reconsideration on 21 April 2016, and on the same day Ms Millar sought merits review by the Tribunal (matter 2016/2578).
Apparently in the first half of 2016, Ms Millar also claimed for a chronic pain condition arising out of the accepted lumbar sprain (bilateral) and contusion of chest wall (bilateral) condition. On 7 June 2016 Comcare denied liability under s 14 for the chronic pain condition, and affirmed that decision on 7 July 2016. On 14 July 2016 she sought merits review of that reviewable decision also (matter 2016/4101).
THE RELEVANT LEGISLATION
Section 14 of the Act provides:
(1) Subject to this Part, Comcare 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.
Section 5A, in turn, defines injury 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; 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…
Disease is defined in s 5B(1) to mean:
(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.
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.
Subsequently, her left knee continued to swell and she experienced continuous pain. She purchased a knee brace and used anti-inflammatory creams.
Within a few days Ms Millar informed a physiotherapist at the college that she had injured her left knee whilst she had been in the Army. She told the Tribunal that she later realised that she had injured her right knee in the Army rather than the left knee. She also later advised the physiotherapist of the incident with the rowing machine.
After consulting the physiotherapist, Ms Millar was still required to participate in all recruit PT sessions and AFP physical Operational Safety Training (OST), which included defence tactics and weapons. She told the Tribunal that, during this time, she experienced swelling, pain and restricted movement in the left knee. She was referred for X-rays, after which she was placed on a restricted training regime. However, she claimed that the regime continued to cause her knee pain and swelling. A request to transfer to other activities was declined. A mediation session, involving a superintendent at the college, was subsequently held to deal with her concern about the training regime.
She told the Tribunal that she raised the issue of knee pain with her doctor in 2015 because it wasn’t subsiding any more. Her left knee pain was disrupting just about everything. In a workers compensation claim form dated 15 November 2015 Ms Millar claimed compensation for MCL strain? – left knee she sustained as a result of performing physio exercises for back injury. She stated that she was doing repetitive squats and lunges, which aggravated knee injury from AFP College in 2010. Ms Millar stated that she first noticed her injury on 5 November 2010.
On 1 July 2016 Dr Gawel Kulisiwicz, an orthopaedic surgeon, operated on her left knee. Since then she has undertaken physiotherapy and home based exercises, as well is taking medication. Pharmaceutical records of this medication were tendered.
On 9 November 2010 Ms Millar was taking part in the execution of a search warrant in Sydney when she lifted a large evidence bag containing various documents. She told the Tribunal she had filled the bag herself, but that as she lifted and turned to place the bag on a table she felt a pull and pop in her back. She told the Tribunal she felt stiff the next morning and experienced restricted movements and pain in her back. She did not go to work but consulted a GP, Dr Annie Ye. On her return to work on 12 November 2010 she submitted an incident report. She subsequently did not return to work until 29 November 2010, when she participated in a graduated return to work programme.
Ms Millar’s supervisor provided a statement on 21 January 2011 in relation to her claim for compensation. He noted that she had advised him on 10 November 2010 that she was feeling crook and would not be at work that day ‘as she wanted to keep her bugs to herself’. She did not advise that she had a workplace injury until 11 November. He noted that there were no witnesses to the incident despite other police officers being present at the time.
Ms Millar told the Tribunal she subsequently continued to experience pain and restricted movement in her back. She consulted various specialists, including pain specialists, and sought physiotherapy.
Comcare approved her participation in a pain program between about 20 August and 23 September 2011.
Ms Millar re-located to Canberra in December 2013, and in September 2014 commenced work in AFP counterterrorism. However, she was working fewer hours than when she had been in Sydney. A sit/stand desk, ergonomic chair and foot rest, which had been paid for by Comcare and made available to her in Sydney was not, she said, available to her in Canberra. She gave evidence that her position in counterterrorism ended in early 2015 and that no further position was made available to her. Since moving to Darwin in February 2018, she had done a one-day course with the AFP – the only work she had done since moving.
She gave evidence that she attempts to carry out normal household tasks, but that everything takes longer because of her pain. This causes a lot of compromise in maintaining her household. She becomes stressed, which makes my pain flare-up more. She rarely experiences good sleep.
Under cross-examination Ms Millar described the areas where she feels pain: the whole back, her neck, hands, legs and thighs, arms, left scapula and her head (migraines); this pain can occur randomly or in relation to certain events, such as the way she lies in bed or the ambient temperature. She attributed these episodes of pain to the incident in November 2010.
She said that it took about 12 months for complete recovery following the operation on her neck in April 2007, though she had returned to work prior to her discharge from the Regular Army in June 2007. She participated as an Army reservist after discharge.
A statement of Ms Millar dated 19 January 2016 was tendered. In it, in relation to an examination by Dr David Gorman on 18 November 2011, she said that she told him my neck had not been giving me any problems or pain before the incident dated 9 November 2010. Under cross-examination, she answered questions about whether she had experienced pain in her neck following recovery from the April 2007 discectomy until the lifting incident in November 2010 by saying I don’t recall anything.
A Department of Veterans’ Affairs form entitled a Lifestyle Questionnaire, which Ms Millar had completed in April 2008, was put to her in cross-examination. The document purported to seek information about the effects of disabilities arising from her service in the military. She provided the following details inter alia in completing the form:
I CAN’T PLAY ANY SOCIAL OR COMP SPORTS OR ANY PHYSICAL ACTIVITY WITHOUT FEAR OF WORSENING MY CONDITION. OR WITHOUT RECEIVING ACUTE PAIN IN NECK/SHOULDERS AND CHRONIC HEADACHES, WHERE I HAVE TO CONTINUALLY TAKE PAINKILLERS TO MANAGE THEM…
DUE TO THE RESTRICTIONS MY NECK INJURY PLACES ON MY LIFE, I HAVE CONTINUAL EMOTIONAL DISTRESS…
I REQUIRE HELP FROM MY PARTNER WITH MOST DOMESTIC CHORES.
She ticked a box to indicate that she Rarely or never visited friends or relatives or received visits from them. She also listed activities that she had difficulties doing because of her disabilities, as follows:
ANYTHING THAT INVOLVES MOVEMENTS/EXTENSION OR LIFTING WITH ARMS/ANY PHYSICAL ACTIVITY.
It was put to Ms Millar that the information in the form was designed to assist in determining her entitlements at that time to compensation or a pension. At various points in her evidence she seemed to indicate that the answers she provided accurately reflected her condition at that time, i.e. April 2008. She testified it was a long process to get clear of surgery. She also told the Tribunal that the contents of the form described her condition predominantly in the period between her neck injury in the Army and the surgery on her neck in April 2007. She said she had been advised by an RSL official to fill in the form referencing this time frame rather than the time at which she actually filled in the form. She said that this was to ensure that if there was ever a breakdown in the prosthetic in her neck installed during the surgery that she would have a recourse to compensation.
Question 30 in the form asked her have your disabilities affected your future or career, to which she answered:
NO MATTER WHAT KIND OF WORK I DO. IE: SITTING/STANDING, AFTER ANY PROLONGED PERIOD I WILL BE IN PAIN.
Between 30 August and 23 September 2011 Ms Millar attended a Pain Program at Innervate Pain Management in Sydney. A report of her participation in that program, dated 23 September 2011, was tendered. Inter alia, the report made these observations:
Unfortunately from the very beginning Tricia made it clear she did not want to participate in the program, and despite the best efforts of staff she didn’t change her view by the end. Her reluctance to participate in group discussions was initially interpreted as a public speaking anxiety, but it transpired that her issues were more to do with the program itself rather than feeling uncomfortable about speaking in front of others.
Tricia’s issues with the course stemmed from two sources. Firstly, she reported to us that she knew all the pain management techniques already, and she couldn’t see how she could benefit from further instruction…
The second issue was in relation to further investigations. As the program progressed it became apparent that Tricia believed that she requires further investigation of her pain symptoms and being in the program was preventing her from obtaining approval for these investigations.
The report notes that she left early on the second-last day of the 12 day session.
In addition, summonsed notes from the program organisers make the following references to her:
1/9/11. Attended Day 2. Appears angry + unengaged…
02/09/11 Attended Day 3. Still very disinterested. Not interacting. Passively hostile. Complaining that physio is not hard enough – yet doesn’t want to increase anything.
06/09/2011: Attended Day 4: Would not score herself for managing her pain on the weekend as she is “already doing it all”…. Defensive.
In the witness box Ms Millar denied any reluctance to participate in the program. She said I did everything they asked of me. She told the Tribunal however that some of the techniques for pain management being taught in the program were already familiar to her.
In her statement of 19 January 2016, she referred to the pain program, saying that the skills taught only provided minor relief. Paragraph 34 of that statement concludes as follows:
A major part of the course was group verbal therapy, where they expected me to tell other injured persons my personal details and feelings. I had issues with telling non related persons who were not staff, but injured persons also on the course, this information. The course facilitators took exception to this and made the majority of their comments in reports about it and began treating me with hostility.
However, her statement of 20 February 2017, which largely reproduces the content of the 19 January 2016 statement, concludes the corresponding paragraph as follows:
A major part of the course was group verbal therapy, where they expected me to tell other injured persons my personal details and feelings, I found it personally difficult to do so.
Under cross-examination, she ascribed No particular reason for the difference between the two versions.
THE MEDICAL EVIDENCE

On 6 April 2010, Dr Charles Hoy, a radiologist, saw Ms Millar and observed Mild osteoarthritis across all components of her left knee. Two days later, the AFP Fitness Adviser, Andrew Jones, emailed the AFP’s principal medical officer, stating that Ms Millar had been suffering knee pain throughout the recruitment training, which was significantly aggravated during OST. He noted her claim to have injured her knee when she fell off a rowing machine.
The clinical notes of Woy Woy General Practice, where Ms Miller was then a patient, record a consultation with Dr Ye on 14 October 2010 in which this appears:
R side headache for mor ehtan one week,
usual pattern for her as she had operation done in the neck due to work comp,
[Panadeine Forte] does help and usually response to chrio [Errors in original.]
Following the incident during the search warrant execution in Sydney on 9 November 2010, an x-ray of Ms Millar’s thoracic and lumbar spine was undertaken on 16 November 2010. It found:
There are six lumbar type vertebrae with the lower most vertebra being transitional in type as its left transverse process is hypertrophied and fused with the sacrum.
There is slight degenerative narrowing at the L4/5 disc with minor accompanying endplate degenerative spurs and appearances suggest there are probably early degenerative changes in the lower facet joints.
No other significant bone, joint or disc abnormality seen.
A bone scan performed on 18 November 2010 was described as normal.
An MRI of Ms Millar’s spine performed on 25 February 2011 found:
Disc protrusion in the thoracic spine with some deformity and perhaps some signal change in the underlying cord.
Lumbar spine facet joint degenerative changes.
Neurosurgeon Dr Marc Coughlan wrote to Ms Millar’s treating GP, Dr Elizabeth Ellenberger, on 29 March 2011. Dr Coughlan noted Ms Millar’s back pain clinically corresponded to an area over the L4 to S1 region. Dr Coughlan observed:
I note she also had an x-ray of her thoracic and lumbar spine and this is of value in that it shows six lumbar-type vertebra with the lower most lumbar vertebra being transitional in type, and the left transverse process is hypertrophied and fused to the sacrum. This is likely to be causing a significant amount of pain in that it does tend to cause facet joint arthrosis at the first mobile level.
With regards to her thoracolumbar MRI, her lumbar spine shows that her discs are pristine with no suggestion of any discopathy and certainly no nerve compression. She does however have significant disc herniation at T6/7 and perhaps a hint of cord signal change that may have suggested previous compression. However, clinically there is no myelopathy and there is no sensory deficit that would suggest that this is relevant. In fact most of her pain is lower down in the L5/S1 region. I have discussed this with her but assured her that the thoracic disc is not accounting for her lower back pain.
Dr John Graham, a neurologist, examined Ms Millar and provided a report to Dr Ellenberger on 30 March 2011. Dr Graham found that Straight leg raising is full but painful. He doubted that there was clinical evidence [of] cord or nerve root lesion and opined that her pain appears to be coming from the soft tissues most likely the disc in the mid thoracic region and facet joints from the low lumbar region. He found some degree of pain as a result of her C5/6 fusion.
Dr Graham referred Ms Millar to Dr Marc Russo, a pain specialist. After examining her, Dr Russo provided a report to Dr Graham on 12 May 2011. He diagnosed Ms Millar as suffering from physical deconditioning, significant myofascial pain secondary to spasm and components of central sensitisation leading to her widespread pain disorder which he opined was 100% reversible provided Ms Millar engaged the right exercise regime.
Ms Millar was referred to Dr Blair Christian, a consultant occupational physician, who wrote a report dated 24 August 2011. Dr Christian opined as follows:
Ms Millar has an ongoing chronic pain syndrome. Her symptoms are now widespread and are tending to worsen over time. Her symptoms are not clearly related to the single physical injury such as a disc protrusion in the thoracic spine. I agree with Dr Russo that Ms Millar’s symptoms are now more likely related to physical deconditioning and general muscle tension and muscle fatigue. There was little evidence today for a clear central sensitisation disorder.
On 7 October 2011, Dr Ellenberger provided a medical report to Comcare. She diagnosed Myofascial pain due to injury sustained at work; bilateral carpal tunnel syndrome due to inactivity, aging, strain; Disc lesion T6/7 due to injury and Paraesthesia in legs of unknown cause.
In a subsequent report dated 22 November 2011, Dr Ellenberger provided a further opinion:
…it was probable that her chest pain was due to a significant T6/7 disc lesion sustained at the time of the injury… [which] led to myofascial pain that has failed to resolve.
The lower back strain sustained at the time of injury aggravated facet joint pathology that led to ongoing myofascial pain.
The paraesthesia and heaviness in the legs may be due to the ongoing muscle/soft tissue spasm in the back…
The paraesthesia and heaviness in the arms may be due to the cervical spine pathology…
On 1 February 2012, Dr David Gorman, a pain management specialist, provided a rehabilitation report to the AFP. He examined her and found Straight leg raising was to 80° bilaterally. He summarised his opinion by saying Tricia Millar is a woman with widespread pain and without any definite physical cause for this pain. He noted Dr Ellenberger’s diagnoses of rib strain, lower back strain, ongoing back pain, paraesthesia in the limbs was a reasonable description of her widespread pain. Because her condition did not involve any physical structural abnormality, Dr Gorman considered she would be able to return to full time hours, but opined her illness conviction and the widespread nature of the symptoms suggested the prognosis could be poor.
Dr Graham wrote a further report dated 16 April 2012, addressed to Dr Russo. He expressed this opinion:
Unfortunately she didn't do any better after the pain management program in September last year and is still quite concerned about her chronic thoracic and lumbar pain….
…her main problem then remains this chronic pain issue. I am afraid I have nothing more I can offer and very much hope you are able to help her manage her musculoskeletal widespread pain.
Dr Gorman wrote a further report, this time to Comcare, dated 16 May 2012. He noted marked limitation in movement of her left shoulder and also widespread symptoms in the spine and both upper and lower limbs. He opined:
The formulation of her current problems is now so separate from the previous injury that one cannot relate the injury in November 2010 to her ongoing symptomatology. It is now more a ‘constitutional’ or ‘intrinsic’ problem rather than one induced by that single injury…
I believe that the original condition of a chest wall strain and lumbar sprain which occurred on 9 November 2010 has resolved.
She has now developed widespread sensory and motor symptoms. I believe it is best described using the following terms — widespread myofascial pain with deconditioning and depressed mood…
What has happened is that she has now developed the condition of widespread myofascial pain with prolongation due to attitudinal factors and other psychological factors...
I do not believe that she is voluntarily exaggerating her symptoms or consciously guarding restriction of movement...
I do not believe that her employment continues to contribute to her condition…
However, I believe that her overall prognosis is poor considering the entrenched nature of her attitudinal and psychological factors…
It would be ideal that she has a psychiatric assessment…
Dr Gorman provided a further report dated 4 February 2013, in which he expressed these opinions:
With regard to the diagnosis, I believe as I did previously, that it is best described using terms such as widespread myofascial pain or "fibromyalgia". I agree that the non-specific terms such as widespread myofascial pain and lower back strain used by Dr Ellenberger are appropriate. I do not believe that the disc lesion however at T6/7 is significant...
… I believe that she presents a picture of a "persistent pain syndrome" with widespread pain as well as psychological factors such as "illness conviction", fear avoidance behaviours as well as "catastrophizing"...
I believe it would be appropriate for her to have a psychiatric/psychological evaluation.
Dr Gorman examined Ms Millar again at the AFP’s request and provided a rehabilitation report on 27 November 2013. He affirmed a diagnosis of low back strain, disc lesion at T6/7/8 and widespread myofascial pain, noting that she always had a major element of pain focus and ‘central sensitisation’ making invasive procedures ill-advised.
Ms Millar attended Dr William Coyle, orthopaedic surgeon, at the request of Comcare, and Dr Coyle provided a report dated 8 May 2014. He found that she was suffering symptoms involving virtually the whole of her body which are not associated with many convincing objective abnormal signs. He opined:
On the balance of probabilities, as distinct from possibilities, the condition currently suffered by the employee may be at least partly related to the incident at work on 09/09/2010 [sic], but her symptoms are so widespread that a functional illness must be suspected...
The initial condition may have been superseded or at least aggravated by the development of a functional illness...
Ms Millar's initial compensable condition may well have been superseded by a different condition, which is a chronic pain syndrome.
I say this because her symptoms are so widespread that they cannot be related to a single pathological process.
There are no aspects of the clinical examination which tend to suggest that the employee is voluntarily exaggerating her symptoms, consciously guarding restriction of movement, or displaying symptoms and examination findings inconsistent, or demonstrating a range of movement during my passive observation which was not replicated during clinical examination. She does display symptoms and examination findings inconsistent with any condition that I am aware of...
He also expressed a view that her clinical picture is bizarre.
A consultant physician, Dr Peter Stevenson, examined Ms Millar and provided a medical report on 9 November 2015. He agreed with Drs Gorman and Coyle that she did not have any specific condition or pathology. In his opinion:
It is conceivable that lifting of the bag may have precipitated a minor episode of non-specific pain. The natural history of such outside the medico-legal environment is well studied and it is healing at most in days or weeks. ‘Myofascial pain’ is not a specific diagnosis.
The radiology of the spine shows no pathological disc lesion. The thoracic disc abnormalities are common and asymptomatic. They are not traumatic. They were not caused by the lifting event and are not causes of her pain.
In response to the question asking whether Ms Millar’s condition was consistent with the mechanism of injury provided by her, Dr Stevenson opined that her chronic disability and widespread symptomatology were bizarre and not explained by any medical process. He concluded she had a disability syndrome, a claim for total disability in the absence of any justifying pathology. Dr Stevenson concluded that Ms Millar’s complaint was not caused by the incident in 2010 and there was no medical contribution coming from that. He added that she needs only demedicalisation and return to the workforce.
It was put to the Tribunal that, prior to 2015, there was no reference in any of the clinical notes of the GPs Ms Millar attended to any problems she was experiencing in relation to her left knee or any dysfunctionality in that knee. She agreed that shortly prior to November 2010 she undertook fitness training, walking, bicycle riding, snowboarding and swimming.
Ms Millar attended Dr Leon Le Leu, occupational physician. In a report dated 1 February 2016 Dr Le Leu listed the injuries he considered she had sustained in the course of her employment with the AFP:
·Exacerbation of pre-existing degeneration at T7/8 (and probably also at T6/7) from twisting which may have been causing variable radiculopathic symptoms initially; now she is left with local pain and tenderness.
·A myofascial pain syndrome which is not on any clear anatomical basis but which relates to the resetting of her central pain threshold.
·Subsequent injuries to the left shoulder and knee possibly from treatment, example of physiotherapy.
·A psychological injury which has slowly developed over time since the initial injury ...
He considered that she continued to suffer from the thoracic disc injury, the generalised myofascial pain syndrome and the unspecified psychological injury at the time of his examination. He added:
There is a fundamental discrepancy between her reported symptoms and her general wish to push herself physically and perform the [Operational Safety Assessment].
Dr Le Leu also gave live evidence. He was asked to comment on the opinion of a rheumatologist, Prof Peter Youssef, that Ms Millar’s pain following the November 2010 incident should have resolved within 2 to 8 weeks. He agreed that would be the case with most people, but such a recovery time is not universal. He was also asked about her myofascial pain syndrome, which he described as a poorly-defined generalised pain problem. He thought it was probably the result of an interaction between her thoracic pain and psychological factors such as loss of a career path and loss of fitness, and possibly from the resetting of pain thresholds in the central nervous system.
Under cross-examination, Dr Le Leu was asked to comment on the findings of an MRI on Ms Millar’s left knee conducted on 16 May 2016, which identified Degenerative change with an associated developing horizontal nondisplaced tear in body – posterior horn of medial meniscus. He said that it sounds like she has a chronic degenerative tear of the meniscus, which he thought not uncommon for people with a degenerative condition of their knees. It was also put to him that if someone purported to identify a particular activity as giving rise to an injury, they would generally do so by reference to pain the activity gave rise to the time. He agreed with this proposition, saying that the affected area would be highlighted; the rest of the body would feel normal.
Dr Le Leu was reminded that he had found some reduction in her capacity to raise her leg during examination. His attention was then drawn to the 1 February 2012 report of Dr Gorman, which found a leg raising capacity to 80° bilaterally, and to the 13 February 2016 report of Dr Garth Eaton, an occupational physician, who found that Ms Millar could only raise her left leg by 10° and her right leg by 5°, and to a similar finding by Dr Christian in his report of 24 August 2011. He said that this was an enormous discrepancy, and hard to explain on a physical basis. He said that this should lead one to examine non-physical causes, which could be either conscious or unconscious. When he was told that Dr Zolton Zsadanyi (whom he described as an excellent psychiatrist) had ruled out psychiatric illness, he agreed on the basis of that diagnosis that the alternative was a conscious effort not to participate earnestly in the examination. However, he agreed in re-examination that the incidence of pain on the occasion of the test might have been a factor rather than a conscious effort not to cooperate.
He added that the patients he had seen with a leg raising capacity of only around 10° were generally in very acute pain and hardly able to walk. He also agreed in re-examination that any of the rowing machine, hill run or lunging/squatting incidents could have caused or aggravated her left knee condition.
Dr Eaton also examined Ms Millar and provided a report on 13 February 2016. He diagnosed her with:
Chronic widespread pain syndrome with probable significant neuropathic and centrally mediated components;
Initial musculoligamentous strain of the thoracic spine and aggravation of degenerative spinal disease, particularly at T6/7 and T7/8; and
Associated symptoms of stress, anxiety and depression.
He suggested referring her to a pain psychiatrist to deal with the psychological and emotional effects of her chronic pain and dysfunction. He also commented:
Ms Millar is very severely affected by her condition physically, psychologically and emotionally. Her chronic pain and dysfunction is now widespread and extremely disabling. She is extremely fear avoidant, exhibits extreme pain behaviour and catastrophizes about her situation which is typical of those who develop chronic pain syndrome.
Chronic pain often spreads from the site of injury to remote locations in the body. In these cases there are changes in the brain due to neuroplasticity, which, in the case of chronic widespread pain, continue to be abnormal. Central sensitisation occurs and the threshold for developing symptoms is very much reduced, even with minor stimuli. The prognosis is very guarded.
Dr Eaton concluded that Ms Millar’s chronic widespread pain was consequential to the injury sustained on 9 November 2010 which strained her thoracic spine and probably aggravated degenerative disc disease. Dr Eaton however noted there was clearly a difference of opinion between various specialists as to the link between the development of a florid chronic pain disorder and an initial relatively minor strain injury.
Dr Eaton gave evidence by telephone during the hearing. Commenting on patient participation in tests by specialists, he commented that sometimes in the process they feel they are not being listened to or heard, and consequently when
…they see a new doctor, they sometimes probably exaggerate, not necessarily intentionally always, but sometimes they’re looking for the doctors to believe them, that they’ve got a problem…
Dr Eaton also commented that the intensity of pain by chronic pain patients may fluctuate significantly from day to day, as may the location of their pain.
He was taken through an account of Ms Millar’s medical history by counsel for Comcare. At the end of this, he opined:
…we’re talking here about a scripted diagnosis, not something about a proper diagnosis where we talking about a structural injury in the sense of a broken bone, for example…
He disagreed with the opinion of Prof Youssef (discussed below) regarding the veracity of Ms Millar’s experience of pain. Counsel for Comcare asked Dr Eaton about the extent to which he approached an examination with a view to determining the veracity of a patient’s account of pain. He said that he operated on the assumption that a patient was telling him the truth, commenting I do not practice medicine as a detective. He said (perhaps facetiously):
I think some of the medicolegal world are very much looking at that side of it [testing the veracity of a patient’s account of pain] very strongly, so I get fooled more.
He accepted that there were variations in presentation when Ms Millar saw other doctors who had provided reports. He also accepted that his underlying belief in her underlies the opinion in [his] report. He also considered that, when he examined her in February 2016, she had no capacity to perform operational policing on account of her pain.
An MRI of her left knee performed on 16 May 2016 identified:
Degenerative change with an associated developing horizontal nondisplaced tear in body – posterior horn of medial meniscus.
Early patchy areas of grade two chondromalacia in the medial femoral condyle
Mild knee joint effusion. Small collapsed Baker’s cyst.
Dr Kulisiwicz wrote a report to her GP dated 6 June 2016, in which he stated:
She sustained a left knee injury when she was on a rowing machine and this happened 6 years ago. She pushed really hard and unfortunately her body fell out of the chair while her foot stayed strapped up to the pedal. She had pain and swelling at the time. Her knee has been causing her pain since with intermittent episodes of clicking, catching as well as swelling and discomfort. Tricia is using a walking stick at present and her pain is centred around the medial joint line. Tricia has had no previous left knee injuries and has had physiotherapy for her knee which has not helped....
Tricia's MRI scan shows a large tear of the medial meniscus with relative preservation of her articular surfaces throughout. There was no knee effusion on the day the MRI was taken....
Tricia has been suffering with her left knee for over 6 years now and arthroscopic debridement of her meniscal tear should alleviate her symptoms....
Tricia is likely to develop degenerative change within her left knee as a result of this injury and this would happen or not Tricia has arthroscopic debridement of her meniscus.

Professor Youssef examined Ms Millar and wrote a report dated 8 December 2016. His opinion was that she did not suffer a significant musculoskeletal condition, but rather suffered a thoracic and chest wall strain on 9 November 2010 which had resolved, and that her employment ceased to be a factor eight weeks after the injury. He noted inconsistencies between her reporting of pain and the movement she displayed during and after the physical examination. He noted that she appeared to me to forget herself and every now and again to remember to tell her husband that she was in pain.
Prof Youssef also appeared in the Tribunal to give evidence by telephone. He was taken to an article from the Pain Research Forum entitled What’s in a Name for Chronic Pain? by Prof David Bennett of Oxford University. Commenting on what the article refers to as the current inability to fully gauge nervous system sensitization underlying nociplastic pain, Prof Bennett says:
We need better physiological measures of sensitisation that we can apply clinically… The difficulty we have as a field is that we don’t yet have the tools in clinical practice to absolutely demonstrate that there is an altered stimulus-response function in the patient.
Prof Youssef agreed with the view of Prof Bennett. When asked how a doctor might identify nociplastic pain when the only evidence available of pain is the patient’s word, he said a doctor should look for inconsistencies in the patient’s history and inconsistencies between the reports by other doctors regarding the same patient. Patient function, he said, should be relatively consistent between examinations, allowing that function may go up and down a little bit. In relation to Ms Millar, Prof Youssef reported inconsistencies during his own examination and between his examination and the findings of others.
On cross-examination, he agreed that the incidence of pain and swelling in Ms Millar’s knee would be symptomatic of an injury to the knee or some aggravation of an injury to the knee. In re-examination, he said that the most common cause of bilateral swelling of the knees, particularly in young women, is Chondromalacia Patella. He said that a tear in the medial meniscus could be caused by a twisting injury, but that it would be accompanied by localised tenderness or pain. He also said that the persistence of pain after a partial meniscectomy to deal with a tear is more likely to be Chondromalacia Patella than the existence of the tear.
Prof Youssef was also asked by the Tribunal to comment on the range of different outcomes in the leg raising test, from 5°-10° to 70°-80°. He said that this was much more likely to be the product of inconsistent reporting than of the incidence of pain on the day of examination.
Ms Millar attended Prof Milton Cohen, a specialist pain medicine physician and rheumatologist, at her solicitors’ request, and he provided a report dated 19 December 2016. He was asked whether, on the balance of probabilities, Ms Millar sustained an injury in the course of her employment and responded:
Ms Millar sustained an episode of acute biomechanical impairment of the interscapular segment of the thoracic spine in the course of her employment with the AFP. This neither implies nor requires that an underlying structural lesion was incurred but does imply that her nociceptive ("pain-signalling") neural pathways were activated by that accident.
He opined:
As the lifting incident that precipitated the episode [in November 2010] occurred in the context of Ms Millar's employment, I consider the latter to be a significant contributing factor to the former.
Prof Cohen thought that she would require a therapeutic program based on sociopsychobiomedical formulation of her predicament, which would include:
·Individual engagement at the cognitive level, for validation of her predicament and her losses, explanation regarding (a) the relevance of psychological and social factors to the experience of chronic pain and (b) the biology of central sensitisation, and to learn techniques to address somatic hyperarousal…
·Another attempt at pharmacological control of symptoms, following a detailed review of her experience to date and careful tailoring in terms of dose and timing of some drugs already used...
Prof Cohen also gave live evidence to the Tribunal. He made reference to an evolution in pain theory from a purely biomedical model of illness, whereby a symptom can be traced to pathology in a linear way (a view he described as outdated) to a sociopsychobiomedical model which reflected psychological and social factors as well. He explained that, at the biomedical level, Ms Millar originally probably suffered a central sensitisation of nociception, based on tissue damage in her thoracic spine. However, he said that her pain is now nociplastic pain, that is pain not presently being caused by tissue or nerve damage.
He was asked to comment on the extent to which, in diagnosing nociplastic pain, a doctor is dependent on the truthfulness of his patient. He responded by saying that in clinical medicine a doctor is predisposed to believe his patient; the default position is to believe, he said. He was also asked about the possibility that nociceptive pain to a particular part of the spine could lead to nociplastic pain in virtually all of the body. He said it would be naive to attribute all such complaints to the one mechanism. He accepted that a pain pattern of this kind would not likely be attributable to a trauma to the thoracic spine. However, he said that some of the symptoms could be attributable to biomechanical consequences or other forms of distress arising out of the original trauma.
Ms Millar also attended psychiatrist Dr Zsadanyi who, in a report dated 24 February 2017, said that he had:
…not assigned a DSM-5 diagnosis. In my opinion Ms Millar's condition is primarily of her experiencing chronic pain symptoms and of dependence on opioid based analgesic medication.
Dr Frank Machart, an orthopaedic surgeon, examined her and provided a report dated 5 July 2017. Dr Machart expressed this opinion:
It is difficult to establish exactly the precise pathology that could have taken place at the time of the “injury” on 9 November 2010. Your letter of instructions suggested low back strain and rib strain. Reported today pain in the low back and in the ribs. The description of injury, lifting stacked files is not compatible, with multi-injury pattern to several areas, chest, thoracic and lumbar spine.
Given the description of injury, it is likely that she sustained a soft tissue injury to the thoracic spine and to the rib cage. The history is not indicative of substantial injury to the thoracic spine.
There is evidence of 2 level disc disease, which did not appear to be altered at the time of the incident. The 2 level disc disease was not caused by the injury. This is not plausible.
The prognosis was for gradual resolution of symptoms. The lack of resolution of symptoms, and development of plethora of additional symptoms, is not compatible with the physical injury from the orthopaedic point of view. There is a pain pattern, which is connected to the injury by nothing other than self-reporting. Clear cut pathological process causing the current state is not evident.
Commenting on her chronic pain condition, Dr Machart considered:
I do not have medical evidence for the plethora of symptoms with which she presented now. The explanation is pain behaviour rather than physical pathology. As an orthopaedic surgeon, I cannot draw a nexus between pain behaviour, chronic pain without physical basis stemming from the injury. This is something that pain management people have valiantly tried to explain however reading several reports, there does not appear to be a direct medical nexus, other than through self-reporting.
In respect of Ms Millar’s left knee injury, Dr Machart considered:
The left knee injury was reported to be as a result of physical exercise designed to treat the spine. I find this explanation improbable. Given the severity of the back pain, it is unlikely that there was a great deal of exertion compatible with substantial physical exertion. It is plausible that she undertook physical training, as recommended by the physiotherapy; it is unlikely that the degree of physical strain was to the point of causing injury. There was no evidence of a specific movement causing structural injury. She was treated by arthroscopic meniscectomy. Even if there was an injury to the meniscus, then this was treated by meniscectomy, and full of [sic] resolution of symptoms was expected. There is evidence of mild degenerative changes, not to the extent that this would be causing substantial disability at this point in time.
The Tribunal took the viva voce evidence referred to above in April 2018. After an extensive adjournment the hearing resumed in April 2019, at which time the Tribunal took fresh evidence from Professors Youssef and Cohen. This evidence focused particularly on how the Tribunal should understand the concept of nociplastic pain.
A supplementary report of Prof Youssef dated 18 January 2019, in which inter alia he took issue with the opinion of Prof Cohen, was tendered. Prof Youssef wrote:
Nociplastic pain is a descriptor but not a diagnosis. By this I mean that pain is an experience for which a diagnosis (underlying cause) should be sought. It is not a diagnosis but a symptom.
He criticised Prof Cohen’s supplementary report of 8 November 2018 (referred to below) by saying that At no point does he provide concrete scientific evidence as to the physiological mechanism underlying nociplastic pain.
Prof Cohen’s report of 8 November 2018 was informed by a further assessment of Ms Millar on 12 July 2018 and on a review of the evidence given in the Tribunal the previous April. He said he affirmed his previous diagnosis of central sensitisation of nociception, with the original site of nociception being structures in the thoracic spine, unassociated with any disease process. However, due to a more recent change in nomenclature approved by the International Association for the Study of Pain (IASP), he wrote that the current expression of that diagnosis would be nociplastic pain, implying central sensitisation of nociception. He observed that she presented with pain in a regional distribution, centred on the thoracic spine… He confirmed that it was more probable than not that there was a direct causal connection between the work incident in November 2010 and the nociplastic pain condition.
He said that the present definition of nociplastic pain is pain that arises from altered nociception despite no clear evidence of actual or threatened tissue damage causing the activation of peripheral nociceptors or evidence for disease or lesion of the somatosensory system causing the pain.
Prof Youssef also gave live evidence on 11 April 2019. He was asked to confirm his understanding of the cause of nociplastic pain:
Anything, in fact we don't understand the physiological cause of nociplastic pain. It's simply a descriptor, a construct in order to study pain that does not appear to be associated with actual or threatened tissue damage, either in the nervous system or outside the nervous system. So it's essentially a description of that symptom and then a construction to study that …patients that present with that description of pain…
I think it is basically pain that cannot be explained on the basis of any understanding that we have of a cause of pain at the present moment.
He was asked about the meaning of a regional distribution of pain, specifically:
All right. When you say 'anatomical', there's some connection that exists between a particular either skeletal structure and its connected other skeletal areas or neurological distribution and the muscles or the limbs or things that might otherwise be innervated by that neurological system, is that right?‑‑‑(Indistinct) that's correct. So regional would be as compared with widespread, which would be both sides of a body, up, you know, above and below the umbilicus, for example. That's right, so there would be connections in that area.
He was then asked whether Ms Millar presented with a regional distribution of pain. He responded:
Ms Millar told me that she had pain - her symptoms were … she had interscapular pain that radiated in the lower back, so it was more than regional. She had stiffness in the neck. She also said that her pain radiated into the arms and legs and that she developed numbness in the arms and also discomfort in the legs that was like a dead leg. So that's not regional, that's more generalised.
Prof Youssef was then asked about the connection between the thoracic injury of November 2010 and her now widespread distribution of pain:
And do you agree that the thoracic injury cannot be of itself an explanation for what's now complained of in the nature of the widespread pain?‑‑‑Yes.
He later added that there has been no evidence of a physiological change as a result of that incident.
Prof Cohen also gave more evidence on 11 April 2019. He was also asked, in cross examination, about his understanding of the distribution of Ms Millar’s pain, and its connection with her frank injury of November 2010. Counsel for Comcare reminded him of the areas in which Ms Millar testified she experienced pain (her arms, her head, her hands, her neck, her scapula, her thoracic, her sacroiliac crest, her buttocks, pain in the back of the thighs, the outside of the thighs, the back of the calves, feet and her lumbar spine, her lumbosacral spine). Counsel then suggested it would be naïve to think all of that comes from a particular mechanism of injury such as the November 2010 incident. Prof Cohen agreed with that proposition. This affirmed similar evidence he had given one year previously.
Prof Cohen was asked what regional distribution of her pain he was referring to in his most recent report. He responded:
So cervicobrachial.
So the cervical spine?‑‑‑Cervicobrachial, neck, arm.
Neck and arms?‑‑‑And in this case - well, and the thoracic spine. I can't exclude that. Upper body.
He was asked to explain how the cervical spine was involved given that her injury of November 2010 was to the thoracic spine. This exchange with counsel then occurred:
How do we explain that in the absence of there being some trauma to her cervical spine?‑‑‑Well, there was trauma to her cervical spine. She had an operation on it.
Right. So the problems that she's having in that area are related to the condition that she previously required surgery for, is that right?‑‑‑Well, it's possible. When you have more than one, what I call, nociceptive insults to anatomically related parts, then it's almost like a previous part can be awakened. It's a very common phenomenon…
Yes. In the absence of there being any further trauma, so nociplastic or nociceptive incident I think that you described it as, let's be neutral about it and just call it some trauma. In the absence of there being any identifiable further trauma, the problems with respect to her neck and arms would be related to that identifiable trauma that led to operation, is that right?‑‑‑I guess that's a possibility yes.
That's a probability though, isn't it?‑‑‑I don't know how to assess that, the balance between possibility and probability there, I'm afraid.
He was pressed on this answer with the following questions:
So if the tribunal were to conclude that the nature of the trauma suffered at the time of lifting the exhibits bag was to the thoracic spine ‑ ‑ ‑?‑‑‑Yes.
- - - would you agree that more probably than not, any of those problems that we've localised to her cervical spine and arms is by reason of the other identifiable cause that cause her to come to surgery?‑‑‑Yes, I can accept that.
Later, in re-examination, he touched on another possible explanation for the involvement of the cervical spine:
Well, perhaps if I can draw your attention to page 2 of my report of 8 November 2018 and the first full paragraph on that page, beginning 'On examination'. And there I said there 'Persisted hypomobility all spinal segments, altered movement, with allodynia over the paravertebral structures and the upper arms bilaterally'. So what I'm identifying there is that there persists a biomechanical abnormality of the spinal movement. The underlying mechanism of which, in my opinion, is nociplastic and following from the previous statement I've made in response to yourself and Mr Gollan, it may have a secondary effect on the cervical spine.
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.

He added that a patient able to do a straight leg raise of only 10° would be hardly able to walk at all. Neither Dr Eaton nor Dr Christian notes this level of disability in Ms Millar in their reports.
Orthopaedic surgeon Dr Coyle noted in May 2014 that, while there was no evidence that she was voluntarily exaggerating her symptoms, he nonetheless considered that she does display symptoms and examination findings inconsistent with any condition that I am aware of... Dr Eaton, in his live evidence, conceded that there may have been variations in presentation when Ms Millar saw other doctors, but suggested that patients sometimes probably exaggerate, not necessarily intentionally always, but sometimes they’re looking for the doctors to believe them… Prof Youssef was more blunt: in December 2016 he noted inconsistencies between her reporting of pain and the movement she displayed during and after the physical examination of her which he conducted. He said that she appeared to me to forget herself and every now and again to remember to tell her husband that she was in pain. He thought the leg raise discrepancies were much more likely to be the product of conscious falsification than of the incidence of pain on the day of examination. A similar tone of scepticism about Ms Millar’s reporting of pain can be detected in the reports of Dr Stevenson and Dr Machart.
Matters which arose in the non-medical evidence also fuelled the Tribunal’s doubts about Ms Millar’s credit as a witness. The written report and summonsed notes from her participation in the Innervate Pain Management pain program in August-September 2011 suggest that she was disengaged with the program and hostile to those running it. The report records that Tricia made it clear that she did not wanted to participate in the program. Her statement of 19 January 2016 acknowledges the attitude of the course facilitators toward her and offers an explanation as to why they began treating me with hostility. However, her later statement of 20 February 2017 appears to excise any reference to hostility by the facilitators; this approach accords with her evidence to the Tribunal, in which she professed to be mystified by any suggestion that she showed reluctance to participate in the program.
Having previously acknowledged tension between herself and the organisers, the Tribunal is left with the strong impression that Ms Millar’s account of the program was changed for tactical reasons. Her denials that she demonstrated anger or was defensive at the program were unpersuasive in light of her own earlier statement, and suggested some willingness to manipulate her history to paint herself in a more favourable light. And if she had, indeed, been hostile to those running the program, this seems somewhat at odds with the impression of a woman keen to take whatever steps were required to overcome chronic pain.
Similarly, the Tribunal formed an unfavourable impression of her credit when she gave an account of completing the Department of Veterans’ Affairs Lifestyle Questionnaire. She was asked to explain why her statement of 20 February 2017 asserted that I felt I had fully recovered by December 2007, yet her answers to the questionnaire completed in April 2008 indicated severe disability and impairment, including pain caused merely by sitting or standing, limited ability to leave her home or perform domestic duties and continual emotional distress. Her explanation in the witness box for this discrepancy oscillated between saying she was still recovering from the effects of surgery 12 months previously to saying that her description of disability was in fact a backcasting to the period prior to the surgery. The Tribunal notes that the form is framed in the present tense, evidently for the purpose of seeking current information about a veteran’s health and capacity. She justified the approach in which she described not her then-state of incapacity but her incapacity in a period more than 12 months previously by alleging she had been advised to do so by an RSL officer. She was unable to give any information about the identity of this person. She said this approach was to preserve her rights should the pre-surgery neck condition recur.
It is difficult to believe this account. Despite providing an extensive handwritten explanation of her condition, nowhere does Ms Millar clarify that she is describing a condition which, on one version of her evidence, had largely or entirely dissipated. Indeed, the handwritten explanation refers to being EMOTIONALLY DISTRESSED OVER THE SCAR ON MY THROAT, EVEN THOUGH THE SURGEON DID A GREAT JOB, I FIND IT HIDEOUS… This appears to place her account in the period following the operation, not preceding it. Question 30 in the form, seeking to know have your disabilities affected your future or career, is squarely aimed at ongoing effects, not a past condition. Why she answered this question in the future tense (I will be in pain) rather than the future perfect tense (I would have been in pain [but for the resolution of my injury]) is inexplicable if her account is accepted. The reader is left with the strong impression that she is describing her contemporary condition, as opposed to a previous condition. Yet her evidence to the Tribunal was that this condition, by April 2008, had all but resolved. Even if these logical difficulties are put to one side, as a former military police officer and an aspiring civilian police officer, it must surely have been obvious to her that the manner of her completing the form might be construed as a claim to entitlements she could not justify.
In light of these factors, and her general demeanour in the witness box, the Tribunal concludes that Ms Millar was not a witness of credit.
The thoracic condition (matter 2016/2578)
It is convenient to deal with this condition first. The condition arose from Ms Millar lifting a large bag containing documents during the execution of a search warrant in Sydney on 9 November 2010. She felt a pull and a pop in her back as she lifted the bag. Liability for the condition was accepted on 1 February 2011 but on 23 March 2016 Comcare determined that it had no present liability for various treatment expenses, incapacity payments or household services under the Act as the effects of the condition had ceased.
At the conclusion of the hearing the Tribunal was left in some uncertainty as to the nature of Ms Millar’s submission with respect to this condition. Her counsel told the Tribunal in oral closing submissions that the condition is now appropriately described as chronic pain more so than the label given to it at the time of acceptance. He described the chronic pain condition as the evolving diagnosis of the 2010 injury. In further written submissions, he argued that the Tribunal should be satisfied that the effects of the Applicant’s accepted 9 November 2010 injury are ongoing and continue to make a contribution to any incapacity and/or need for medical treatment.
If it is being contended that the thoracic condition and the chronic pain condition are now effectively the same thing, that argument must be rejected. Notwithstanding that a condition may be secondary to, or the sequela of, an accepted condition, it has a separate “identity” under the Act, and must be treated accordingly. Indeed, Ms Millar’s advisers understood this when they made the chronic pain condition the subject of a separate s 14 application for acceptance of liability. That division of the original injury from its alleged sequela is also necessary given that liability for the two conditions must be established under different sections of the Act. The thoracic condition was plainly an injury (other than a disease), i.e. a frank injury, pursuant to s 5A. The chronic pain condition would equally plainly fall under s 5B as a disease. Liability for the two conditions is determined pursuant to different tests under those sections.
Assuming that there is still a claim from Ms Millar for compensation arising from a lumbar/[thoracic] sprain (bilateral) and contusion of chest wall (bilateral), separate to her claim for a chronic pain syndrome, the Tribunal considers that the claim must fail. This is because the medical evidence strongly suggests that, if Ms Millar suffers pain in that area of her body at all, that pain is attributable to a chronic pain condition which has superseded and supplanted the original sprain to her spine and contusion of the chest wall.
Prof Youssef considered that the thoracic condition had resolved approximately eight weeks after the incident in November 2010. This is consistent with the opinions of Dr Machart, Dr Coyle and Dr Stevenson. Similarly, Dr Gorman considered in 2012 that the lumbar sprain had resolved and that:
The formulation of her current problems is now so separate from the previous injury that one cannot relate the injury in November 2010 to her ongoing symptomatology.
The most recent examination of Ms Millar was by Prof Cohen in July 2018. He diagnosed nociplastic pain, implying central sensitisation of nociception. That diagnosis, as he explained in his report of 8 November 2018, is dependent on there being no clear evidence of actual or threatened tissue damage…or evidence for disease or lesion of the somatosensory system causing the pain. Prof Cohen is thus clearly saying that he found no residual evidence of the sprain or the contusion of November 2010. This is consistent with Dr Eaton’s opinion that her pain was actuated by a chronic widespread pain syndrome.
Only Dr Le Leu, in his examination of January 2016, appears to find evidence of the physical symptoms which arose in 2010; he identifies exacerbation of pre-existing degeneration at T7/8 (and probably also at T6/7) accompanied by local pain and tenderness. Given that Prof Cohen did not see these symptoms 2½ years later, I prefer the latter’s opinion as the more contemporary assessment.
Pursuant to Comcare v Power [2015] FCA 1502 at [70], Comcare bears the burden of establishing that Ms Millar is no longer entitled to compensation to which she has previously been entitled. In this case, I consider that it has comfortably reached that threshold. The Tribunal finds that, on the balance of probabilities, the soft tissue injury of November 2010 had resolved at some point before Comcare’s cease effects decision of March 2016. Its reviewable decision in relation to the thoracic condition should therefore be affirmed.
The chronic pain condition (matter 2016/4101)
Notwithstanding the ambiguities in the submission made for Ms Millar and referred to above, I take her proposition to be that the chronic pain condition she claimed in 2016 is a secondary condition, or sequela, to the thoracic condition which was accepted by Comcare in February 2011.
Pursuant to s 5B, a chronic pain condition, being a disease, will be compensable if it has been contributed to, to a significant degree, by a worker’s employment. A disease such as a chronic pain condition will bear the necessary relationship with employment if it arises out of a compensable frank injury. Perry J described the nature of this nexus in Howard v Comcare[2019] FCA 1031 at [61]:
As I have indicated, these matters suggest that the Tribunal failed to appreciate that medical conditions like chronic pain syndrome, which evolve out of primary injuries, are just as much an injury for the purposes of the Act as the primary injury. This explains the Tribunal’s focus upon whether organic or psychological injuries directly arising out of the 2006 accident provided an explanation for the applicant’s chronic pain syndrome, which it accepted at [18] had been experienced by her ever since the 2006 accident at varying levels primarily in her upper neck and shoulder blades. However, the correct position under the Act is that it sufficed if the chronic pain syndrome was caused by the first injury, as the Tribunal accepted in finding as a matter of fact that the chronic pain syndrome was secondary to the injuries suffered in the 2006 accident in line with Dr Paul’s evidence. This error is, with respect, analogous to that made by the Tribunal in Canute which treated the concept of “injury” as co-extensive with the workplace incident save that here the Tribunal appears to have treated the concept of “injury” under the Act as co-extensive with the primary injury.
In these proceedings, however, the key point of contention was not whether Ms Millar’s pain condition was caused by or arose out of her frank injury of November 2010; it was whether Ms Millar suffered a pain condition at all. Her contention is that she does indeed suffer such a condition and that it has evolved from the frank injury in much the same way as described by Perry J in Howard. Comcare’s contention is that her account of pain should not be accepted, in that she was not a witness of truth; alternatively, it contended, if she does experience pain it occurs by reason of a mechanism which does not satisfy the test of an injury, pursuant to the High Court’s decision in Military Rehabilitation and Compensation Commission v May [2016] HCA 19.
Does Ms Millar suffer from a chronic pain condition?
The answer to this question in must be found in the interplay between the substantial body of medical evidence taken by the Tribunal and its view of the reliability of Ms Millar’s reporting of pain which underpins much of that evidence. For the reasons which follow, I find that Ms Millar does not suffer from a chronic pain condition.
As is common in such cases, the medical opinion before the Tribunal pulled in different directions. The opinion marshalled by Comcare was generally characterised by scepticism about the existence of a physical disorder given a lack of pathology describing a plausible aetiology or, as Dr Eaton put it, the link between the development of a florid chronic pain disorder and an initial relatively minor strain injury. Dr Gorman described Ms Millar as a woman with widespread pain and without any definite physical cause for this pain. Dr Coyle considered that her symptoms were so widespread that they cannot be related to a single pathological process. He considered her clinical picture bizarre, a description also used by Dr Stevenson. The latter thought she suffered from a disability syndrome, a claim for total disability in the absence of any justifying pathology. Dr Machart opined that Clear cut pathological process causing the current state is not evident.
Prof Youssef was more explicitly cynical than other witnesses, noting what he considered to be inconsistencies in her reporting and behaviour at examination. He thought that Ms Millar was exaggerating her symptoms, pointing by way of example to the large variations in her leg raising capacity depending on which doctor she was attending. Dr Machart shared Prof Youssef’s cynicism, saying that pain behaviour was the only explanation for the plethora of symptoms with which she presented.
Several doctors, including Dr Gorman and Dr Le Leu, speculated about psychological factors being the origin of an illness conviction. However, a report of Dr Zsadanyi – the most substantial evidence before the Tribunal on this question – discounted a psychological condition.
The general thrust of this evidence was that Ms Millar was not suffering from a physical condition at all, or at least was not suffering from any condition related to her employment.
The evidence brought by Ms Millar to the Tribunal supported the contention that a generalised pain condition had developed consequentially to the soft tissue injury in 2010. Early examination – by Dr Coughlin, Dr Graham and Dr Russo – identified the fusion of vertebrae or spasms as likely causes of pain. Dr Christian identified a chronic pain syndrome in August 2011, which he attributed to physical deconditioning, general muscle tension and muscle fatigue. By 2016 Dr Le Leu identified a myofascial pain syndrome which is not on any clear anatomical basis but which relates to the resetting of her central pain threshold. He said that a myofascial pain syndrome was a poorly-defined generalised pain problem, which may have had a relationship with the resetting of pain thresholds in the central nervous system.
Dr Eaton in 2016 diagnosed Chronic widespread pain syndrome with probable significant neuropathic and centrally mediated components. Like Dr Le Leu, he noted a possible role in her condition for psychological factors.
Had there been no more medical evidence than this, and had there been no question mark over Ms Millar’s credit, I consider that the issue before the Tribunal here would have been delicately balanced, and may have been determined solely on the basis of where the burden of proof in such an application lies. However, other considerations have tipped the balance in Comcare’s favour.
As previously mentioned, the Tribunal returned to the hearing in April 2019 to take further evidence from Professors Youssef and Cohen. It is fair to describe this evidence is having placed a somewhat different complexion on the issues before the Tribunal, particularly with respect to a pain syndrome occurring in the absence of a demonstrated pathology.
Prof Cohen had explained in his earlier evidence that there had been an evolution in pain theory from a purely biomedical model of illness, whereby a symptom can be traced to pathology in a linear way to a sociopsychobiomedical model which reflected psychological and social factors as well. In his later evidence he expanded on this view, elaborating on a revision of pain taxonomy by the IASP. He said that the descriptor nociplastic pain is now:
…intended for clinical usage and is neither a diagnosis nor a synonym for “central sensitisation of nociception,” which is a neurophysiological concept. It may well be that the phenomenon of hypersensitivity occurring in ostensibly normal, uninjured tissue without evidence of neuropathy leads to a clinical inference that sensitisation may be the underlying mechanism, so that the term is used as a descriptor for that situation. Such reasoning is no different from the phenomenon of observable tissue damage leading to the inference of activation of nociceptors and applying the term “nociceptive pain”, or from the phenomenon of signs of neuropathy leading to the inference of disease or damage of neural structures and applying the term “neuropathic pain.”
In his evidence, Prof Youssef agreed that the term nociplastic pain was essentially a descriptor of symptoms, and that this was pain that cannot be explained on the basis of any understanding that we have of cause of pain at the present moment. The inference I take from his evidence was that nociplastic pain is a description that may in practice be applied equally to a pain condition of unknown aetiology or to a condition which is essentially fictitious.
The conceptual combat between Prof Youssef and Prof Cohen in these proceedings may be viewed as a skirmish in a larger philosophical war between different arms of the medical profession, one largely consisting of rheumatologists such as Prof Youssef and the other substantially made up of pain specialists such as Prof Cohen.[2] The premise on which each of these camps approach the concept of nociplastic pain is so different that the adoption of a particular premise is likely to determine the outcome of the enquiry into a particular instance of, say, a chronic pain syndrome.
[2] Deputy President Sosso refers to this conflict in Cosgrove-Kaye and Comcare [2019] AATA 1238 at [228].
It is not the present role of the Tribunal to arbitrate in this war, certainly not at a philosophical level. However, the evidence of, in particular, Prof Cohen did suggest some parameters around the description nociplastic pain, parameters which are in fact helpful in determining the claim presently before the Tribunal.
Prof Cohen noted that Ms Millar presented with pain in a regional distribution, centred on her thoracic spine. During cross-examination, he described the region in question initially as cervicobrachial, and then simply as upper body. He described possible mechanisms that may explain how an injury to her thoracic spine may also affect areas innervated by the cervical spine. However, he also accepted that such an injury was unlikely to be the cause of pain in her lower body. He agreed it would be naïve to think that pain in that region would derive from an injury to her thoracic spine.

The Tribunal takes this evidence to be agreement with the opinion of Prof Youssef that there needs generally to be an anatomical connection between the original site of an injury and the neuropathic pathways which are said to be sensitised by such an injury, leading to a description of nociplastic pain. Dr Eaton also endorsed the idea of neurological pathways in his evidence. In other words, the more remote the site of injury, anatomically or neurologically, from the site of pain, the less likely one is to be causative of the other.
In his answers to questions about Ms Millar specifically, Prof Cohen confirmed this conceptual approach – what counsel for Comcare referred to as anatomical plausibility. He agreed that the most probable cause of the problems… localised to her cervical spine and arms was the surgery on her cervical spine while she served in the army. He did this despite identifying a possible anatomical link between the issues in the thoracic spine and the cervical spine. Moreover, he offered no evidence in relation to the origin of the pain symptoms in her lower body, on the basis that he had not been asked to explore that issue by Ms Millar’s solicitors.
It follows that, even if the Tribunal accepts the conceptual premise for nociplastic pain advanced by Prof Cohen, his evidence must be construed as saying that a nociplastic pain condition is unlikely to have had its origin in the 2010 soft tissue injury. This is because the occurrence of that injury offers no explanation for the pain in her lower body; in addition, he considers that it is more probable than not that the pain linked to her cervical spine was caused by the surgery in the Army. Of course, a condition which may be a sequela of an injury not occurring while she served in the AFP is not presently before the Tribunal.
The evidence of Drs Le Leu and Eaton, of course, is not infected by these concessions made by Prof Cohen. As that evidence stands, it offers support for the view that Ms Millar does suffer a generalised chronic pain condition arising from the 2010 incident. However, both doctors admitted that this opinion rests substantially on the foundation that Ms Millar provided them with an honest account of her pain. As Dr Eaton put it, the underlying belief in her underlies the opinion in [his] report.
On the basis that the Tribunal has already discounted Ms Millar’s reliability as a witness, it must logically give less weight to opinions which are dependent on that reliability. The Tribunal is thus faced, on the one hand, with a body of expert evidence which accounts for the implausibility of the pain condition’s development by identifying deliberate pain behaviour and, on the other hand, other expert opinion which can only overcome that implausibility by relying on Ms Millar’s credibility as a witness. In this scenario the scales do not tip in Ms Millar’s favour.
The adverse findings on credit, taken together with the virtually unanimous medical opinion that her account of pain stands apart from established theories of pain development, makes it very difficult to find that she suffers from a compensable work-related condition. In such a claim, a worker seeking a benefit or interest must demonstrate that they satisfy the requirements of the statute: Beezley v Repatriation Commission [2015] FCAFC 165 at [68]. On the balance of probabilities, I do not consider that Ms Millar’s claim reaches that threshold.
Does Ms Millar’s condition satisfy the test of an injury under MRCC v May?
In Military Rehabilitation and Compensation Commission v May [2016] HCA 19 the majority of the High Court observed:
49. It is against that background that the Act requires the tribunal of fact to give consideration to "the precise evidence, on a fact by fact basis, … accepted at trial" and then to ask certain questions in order to determine whether an employee is suffering a "disease" or an "injury (other than a disease)".
50. First, does the evidence amount, relevantly, to something that can be described as an "ailment", being a physical or mental ailment, disorder, defect or morbid condition? Second, if so, was that state contributed to in a material degree by the employee's employment by the Commonwealth?
51. If the answer to both those questions is "Yes", there is a "disease" within par (a) of the definition of "injury". Of course, in some cases, the answer to those questions may be admitted. That is, the employee may admit that the answer to the first question, or both the first and the second questions, is "No".
52. If there is not a "disease" within par (a) of the definition of "injury", the tribunal of fact next inquires whether there is an "injury (other than a disease)" within par (b). The third question is – does the evidence demonstrate the existence of a physical or mental "injury" (in the primary sense of that word)? Generally, that will be determined by asking whether the employee has suffered something that can be described as a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state. However, that judicial language is not to be construed or applied as if it were the words of a statute defining a necessary condition for the existence of an "injury (other than a disease)". The language of judgments should not "be applied literally to facts without further consideration of what is conveyed by the reasoning" in the cases from which it is derived, or without regard to the text and scheme of the Act …
57. The Full Court concluded that the inquiry demanded by the statutory definition of "injury" was "whether the person has experienced a physiological change or disturbance of the normal physiological state (physical or mental) that can be said to be an alteration from the functioning of a healthy body or mind" (emphasis added). To the extent that conclusion suggested that subjectively experienced symptoms, without an accompanying physiological or psychiatric change, are sufficient to provide a positive answer to the first or third questions set out above, that conclusion should be rejected.
58. That is because, first, it overlooks that the Act provided that the appellant was liable to compensate in respect of "an injury" and that the focus of the Act is on "an injury". (Emphasis in bold added, references omitted.)
Comcare suggested in these proceedings that the High Court’s decision – particularly the view highlighted above in paragraph [57] of its decision – has cast doubt on whether a complaint characterised by the experience of symptoms without accompanying physiological change can amount to a disease pursuant to s 5B. In particular, it submitted that nociplastic pain – that is, pain that arises from altered nociception despite no clear evidence of actual or threatened tissue damage causing the activation of peripheral nociceptors or evidence for disease or lesion of the somatosensory system causing the pain, adopting the IASP definition – falls within this description and thus cannot meet the s 5B test.
Prior to May, there was a long line of decisions in which it was held that an aggravation of symptoms may be sufficient to amount to an injury for the purposes of the Act, notwithstanding that there is no alteration of the underlying pathology: see, for example, Federal Broom Co Pty Ltd v Semlitch(1964) 110 CLR 626 at 634; Commonwealth v Beattie(1981) 35 ALR 369 at 378; Mellor v Australian Postal Corporation & Anor[2009] FCA 504 at [39]; Comcare v Reardon[2015] FCA 1166 at [31]; and Military Rehabilitation and Compensation Commission v Katterns[2017] FCA 641 at [48]). There is, in addition, a line of decisions where pain conditions of uncertain origin have been found to be ailments within the meaning of s 5B: Howard v Comcare [2019] FCA 1031; Hopkins and Comcare [2016] AATA 742;Stefaniak and Comcare [2019] AATA 1866; Cosgrove-Kaye and Comcare [2019] AATA 1238. It has also been held that the absence of a clear diagnostic label is not of itself a barrier to compensability: see Burchett J in Australian Postal Corporation v Lucas (1991) 33 FCR 101 at 108. Whether any of these principles need to be revisited in the wake of May remains to be seen.
The Tribunal’s recent decision in Williamson and Comcare [2019] AATA 4774 would suggests that those principles are indeed being revisited. There Deputy President Pascoe, citing May, held at [45]:
Subjectively experienced symptoms, which may be experienced at work without an accompanying physiological diagnosis, is simply insufficient to meet the requirements of the Act.
Having found that Ms Millar does not suffer from a disease within the terms of the Act, it is unnecessary to determine whether the claimed condition, nociplastic pain, is capable of meeting the test of a disease under s 5B. As such I do not intend to speculate on this question. I note, however, that similar issues are being ventilated in appeals to the Federal Court against Tribunal decisions in Stefaniak and Singleton and Comcare [2018] AATA 4088. It may be that the Federal Court will be afforded an opportunity to throw further light on the full implications for workers compensation of the High Court’s judgment.
The knee condition (matter 2016/1558)
Ms Millar made her claim for compensation in respect of her left knee in November 2015, a claim that Comcare rejected. That claim was for MCL strain? – left knee which she described in the claim form as having occurred while she was doing repetitive squats and lunges aggravating Knee injury from AFP College 2010. This was a reference to her claim to have fallen off a rowing machine at the AFP College in February or March 2010, twisting her left knee. The squats and lunges were part of the exercises prescribed by her physiotherapist for dealing with the thoracic condition, she said.
She gave evidence that while participating in a PT exercise on 15 March 2010 as part of her police training she felt a sharp pain in her left knee, which she reported to an instructor. An incident report was produced. She was seen by a physiotherapist. She told the Tribunal she largely self-managed the condition after leaving the college but eventually consulted her doctor about pain in the knee in 2015 because it wasn’t subsiding any more. It was operated on in July 2016.
In contradistinction to her claim for chronic pain, there is no question here that Ms Millar suffers a disorder of her knee. The surgeon who later operated on the knee, Dr Kulisiewicz, reported that an MRI scan showed a large tear of the medial meniscus with relative preservation of her articular surfaces throughout. This appears to be the best diagnosis of her knee condition. He noted her report in that she had experienced intermittent episodes of clicking, catching as well as swelling and discomfort in the previous six years. Evidence of natural degeneration was identified. However, in his oral evidence, Prof Youssef considered that a tear of the medial meniscus is more likely to be the product of a twisting injury than of natural degeneration.
In her evidence, Ms Millar attributed her injury to falling off the rowing machine at the college. However, she was not dogmatic about whether this was the initiating event. In a document she produced in support of her request to Comcare for reconsideration of her claim, she speculates that the injury could have been caused by the PT session on 15 March 2010, by the physiotherapy exercises at home, by other requirements imposed by the AFP after she reported pain in her knee in 2010 or by virtue of an unknown incident. Of course, the Tribunal has already formed an opinion about her credit as a witness, and could discount these opinions on that basis. However, it is fallacious to assume that because a person has once been untruthful in pursuit of their interests, that everything they say in that context must also be untruthful.
In this case, there is considerable evidence that a problem did develop in respect of her left knee in the period while she was at the college. She lodged an incident report after feeling pain on 15 March 2010 while running up and down a slope. She was seen by a physiotherapist and apparently treated the left knee with ice, a knee brace and anti-inflammatory creams. She negotiated a modified training regime on account of the problem, even attending a mediation session with the superintendent when this proved inadequate to deal with the problem. She obtained an X-ray. Although no claim for compensation was forthcoming at that time, she was clearly of the opinion that something in her training regime had caused a problem with her knee. In the absence of other compelling possible causes for the development of an injury at this time, it is reasonable to infer that some of the physical stresses associated with training to become a police officer may have been the origin of that injury.
Comcare submitted that several considerations should lead the Tribunal to conclude that this attribution of her condition to work was an invention. It argued, citing Beattie, that the experience of pain on 15 March 2010 on the grassy slope was not necessarily an aggravation of some pre-existing condition. It is nonetheless possible, as Dr Le Leu testified, that the hill run did more than simply highlight a pre-existing condition. Prof Youssef agreed that pain and swelling, as identified by the physiotherapist after the incident on the slope, would be symptomatic of an injury to the knee or an aggravation of a condition of the knee. With respect to the rowing machine incident, Comcare also pointed to the evidence of Prof Youssef and Dr Le Leu, to the effect that they would expect that a meniscal tear of the knee after falling from a rowing machine would generally produce highlighted pain and tenderness focused on the knee, whereas Ms Millar told the Tribunal that everything hurt after the fall. However, I did not understand either doctor to be saying that intense localised pain would inevitably be the case.
Dr Machart considered that it was improbable Ms Millar injured her knee by doing squats and lunges. However, he did not address the probability of injury arising from the earlier incidents at the college.
Comcare also observed that there was no record of a doctor treating the condition between 2010 and 2015. However, Ms Millar explained that she self-managed the condition, including through physiotherapy. Since the condition appears to have impinged on her only intermittently, I accept that that is a reasonable explanation.
Pursuant to Beezley, it is Ms Millar who must satisfy the Tribunal that her knee condition is compensable under the Act. I consider that the evidence demonstrates that she does suffer from a knee injury, that it was most probably the result of activity as opposed to degenerative change, and that the injury most likely arose while she was training at the AFP College in early 2010. Each of these findings can be reached on the evidence, independently of Ms Miller’s own testimony. The mechanism by which the injury occurred is not clear, but the incident with the rowing machine is a plausible explanation of its origin. As the High Court indicated in Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 at 5, certainty with respect to causation is often neither possible nor necessary:
The difference between the criminal standard of proof in its application to circumstantial evidence and the civil is that in the former the facts must be such as to exclude reasonable hypotheses consistent with innocence while the latter you need only circumstances raising a more probable inference in favour of what is alleged. In questions of this sort where direct proof is not available it is enough in the circumstances appearing in the evidence to give rise to a reasonable and definite inference: they must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is mere matter of conjecture (see per Lord Robson, Richard Evans & Co Ltd v Astley [1911] AC 647 at 687). But if circumstances are proved in which it is reasonable to find a balance of probabilities in favour of the conclusion sought then though the conclusion may fall short of certainty it is not to be regarded as a mere conjecture or surmise.
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.

I certify that the preceding 155 (one hundred and fifty-five) paragraphs are a true copy of the reasons for the decision herein of Deputy President Gary Humphries AO

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Associate
Dated: 27 November 2019

Date(s) of hearing:
16 April 2018 - 19 April 2018; 7 May 2018; 11 April 2019; 28 June 2019

Date final submissions received: 13 August 2019

Counsel for the Applicant: K Pattenden

Solicitors for the Applicant: Maurice Blackburn Lawyers

Counsel for the Respondent: M Gollan

Solicitors for the Respondent: Comcare

Date(s) of hearing:	16 April 2018 - 19 April 2018; 7 May 2018; 11 April 2019; 28 June 2019
Date final submissions received:	13 August 2019
Counsel for the Applicant:	K Pattenden
Solicitors for the Applicant:	Maurice Blackburn Lawyers
Counsel for the Respondent:	M Gollan
Solicitors for the Respondent:	Comcare