Parker and Comcare (Compensation) - [2021] AATA 3021

Parker and Comcare (Compensation) [2021] AATA 3021 (23 August 2021)
Division:GENERAL DIVISION
File Number(s):2021/1521
Re:Catherine Parker
APPLICANT

ComcareAnd
RESPONDENT

Decision
Tribunal:Mr S. Webb, Member
Date:23 August 2021
Place:Canberra

The Tribunal has no jurisdiction in respect of an alleged injury under s 4(3) of the Safety, Rehabilitation and Compensation Act 1988.
………………[sgd]……………..
Mr S. Webb, Member
Catchwords
PRACTICE & PROCEDURE – application for review of reconsideration decision – Tribunal’s jurisdiction – allegation of injury resulting from medical treatment – operation of deeming provision – requirements for notice ‘of an injury’ – compensation not payable unless claim for compensation made – meaning of ‘substantial compliance’ – notice not given - no claim made – no jurisdiction.
Legislation
Administrative Appeals Tribunal Act 1975 ss 25, 43
Safety, Rehabilitation and Compensation Act 1988 ss 4, 5A, 5B, 14, 16, 19, 53, 54, 60, 62, 64
Cases
Bailey v Broadsword Marine Contractors Pty Ltd [2017] FCAFC 219
Buhr v Comcare [2007] FCA 575
Canute v Comcare [2006] HCA 47
Comcare v Canute [2005] FCAFC 262
Comcare v Muir [2016] FCA 346
Irwin v Military Rehabilitation and Compensation Commission [2009] FCAFC 33
Lang v Comcare [2007] FCA 47
Lees v Comcare [1999] FCA 753
Military Rehabilitation and Compensation Commission v May [2016] HCA 19
Parker v Comcare (Compensation) [2021] AATA 2350
Portors v Comcare [2018] FCA 914
Re Fuad and Telstra Corp Ltd [2004] AATA 11682
Telstra Corporation v Barrow [1994] FCA 1141
Telstra Corporation Ltd v Hannaford [2006] FCAFC 27
VYRP v Comcare (Compensation) [2018] AATA 3202
REASONS FOR DECISION
Mr S. Webb, Member
23 August 2021

Catherine Parker claimed and was paid compensation in respect of an injury affecting her right upper limb. Comcare accepted liability for this injury and, in so doing, it applied different diagnostic labels, including ‘supraspinatus (muscle) (tendon) strain (right)’, ‘Nerve root plexus disorders (right)’ and ‘chronic pain syndrome’. In February 2020, Comcare decided that Ms Parker had no present entitlement to compensation for the injury under s 16 and s 19 of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act).[1] In March 2021, Comcare reconsidered and decided to affirm the determination.[2]
[1] T94.
[2] T111.
Ms Parker was not satisfied with this decision and applied for review by the Tribunal.
In the course of proceedings, two jurisdictional issues arose. The first related to the Tribunal’s jurisdiction to decide Ms Parker’s entitlement to compensation in respect of a chronic pain injury. This was dealt with in Parker v Comcare (Compensation) AATA 2350 (1^st Parker decision).
The second issue relates to the Tribunal’s jurisdiction to decide if Ms Parker sustained an injury under s 4(3) of the SRC Act for which Comcare is liable to pay compensation.
It is this issue, alone, that I will deal with in these reasons.
The parties provided detailed written submissions addressing related issues.
In order to address the issues raised and to enable clear understanding, it is first necessary to set out relevant facts.
Facts
On 4 January 2012, Ms Parker claimed compensation for an injury that was described in the following terms[3] –
[3] T3, folio 10.
On 9 March 2012, Comcare accepted liability under s 14 of the SRC Act in respect of ‘supraspinatus (muscle) (tendon) strain (right)’ and ‘nerve root plexus disorders (right)’.[4]
[4] T11, folio 40.
On 13 February 2013, Comcare decided to accept liability under s 14 of the SRC Act for ‘chronic pain syndrome’ and ‘anxiety disorder due to a medical condition’. In so doing, Comcare referred to these ailments as ‘secondary conditions’.[5]
[5] T19, folio 77.
On 24 September 2015, Comcare decided that Ms Parker had no present entitlement to compensation for her ‘supraspinatus (muscle) (tendon) strain (right)’, ‘nerve root plexus disorders (right)’ and ‘Chronic pain syndrome’ injuries under s 16 and s 19 of the SRC Act.[6]
[6] T39, folio 194.
This decision notwithstanding, Ms Parker continued to experience pain and other symptoms in her right upper limb.
On 11 May 2016, Dr Damiani, an orthopaedic surgeon, reported that Ms Parker’s symptoms were ‘consistent with a thoracic outlet syndrome with superimposed sympathetic dystrophy’.[7]
[7] T44.
On 28 June 2016, Ms Parker consulted Professor Hardman, a consultant vascular surgeon, who diagnosed a ‘neurogenic thoracic outlet syndrome [that] would benefit from surgical intervention’.[8] Subsequently, on 5 August 2016, the Professor operated on Ms Parker and resectioned her first rib. On 31 January 2017, Professor Hardman reported –
To have such a good surgical outcome for what is essentially a chronic pain syndrome, is good evidence that the diagnosis that led to this surgery was the correct diagnosis. Repetitive stress injuries in the workforce are a well-documented cause of neuropathic thoracic outlet.[9]
[8] T50, folio 217.
[9] T56, folio 241.
On 9 February 2017, Ms Parker requested reconsideration of Comcare’s 24 September 2015 determination and attached copies of medical reports by Dr Damiani, Professor Hardman and her general practitioner, Dr Kamath.[10]
[10] T57, folio 243.
On 8 March 2017, Comcare issued a reconsideration decision in which the 24 September 2015 determination was varied, such that there was present liability for ‘right nerve root and plexus disorder (diagnosed as thoracic outlet syndrome) under s 16 and s 19 of the SRC Act.[11] The decision maker referred to the report of Professor Hardman and stated –
Given the above, I am satisfied a supraspinatus strain and chronic pain syndrome were provisional diagnoses and your symptomatology has now been attributed to the definitive diagnosis of thoracic outlet syndrome. As such, I find there is no present liability for the supraspinatus strain and chronic pain syndrome.[12]
[11] T58, folio 245.
[12] Ibid, folio 247.
There are many medical reports in the documents before the Tribunal that discuss Ms Parker’s symptoms after surgery. These include reports by –
(a)Dr Jain, a treating pain specialist;[13]
(b)Dr Seevnarain, a consultant occupational physician;[14]
(c)Dr Seneviratne, a consultant neurologist;[15]
(d)Mr Croger, a pain physiotherapist;[16]
(e)Dr Gawarikar, a consultant neurologist;[17]
(f)Dr Gorman, a consultant physician and pain management specialist;[18] and
(g)Dr McBurnie, a consultant occupational physician.[19]
[13] T60, T66, T68, T69, T73, T74, T78, T81, T85, T86, T88 and T95.
[14] T83 and T89.
[15] T91.
[16] T87.
[17] T79.
[18] T76.
[19] T67 and T71.
On these materials, it is clear that Ms Parker continued to experience right upper limb symptoms.
On 12 February 2020, Comcare decided that it was not presently liable to pay Ms Parker compensation under s 16 and s 19 of the SRC Act and stated –
The reasons for the decision are based on a medical report from Dr Seneviratne dated 30 September 2019 where he indicated that you no longer suffer from the compensable conditions of nerve root and plexus disorder (TOS) and adjustment reaction due to a medical condition. Dr Seneviratne opined that your current diagnosis is chronic pain as well as multiple sclerosis, which are non-compensable conditions.
On 9 November 2020, Ms Parker’s lawyer sought additional time in which to request a reconsideration of the 12 February 2020 determination. Additional time was allowed and a request for reconsideration of the 12 February 2020 decision was made.[20] In this request no reference is made to an alleged injury under s 4(3) of the SRC Act or, more broadly, to any adverse effect of the surgical procedure performed by Professor Hardman or any other medical treatment Ms Parker obtained.
[20] T99, T104 and T105.
Reports of Dr Jain,[21] Dr Seevnarain,[22] Dr Kamath[23] and Professor Joubert,[24] a consultant neurologist, confirm the existence of a chronic or complex regional pain syndrome affecting Ms Parker’s right upper limb and shoulder. It is Professor Joubert’s opinion that Ms Parker has ‘an underlying thoracic outlet syndrome which led to the complex regional pain syndrome’.[25]
[21] T96 and T98.
[22] T97.
[23] T103.
[24] T110.
[25] Ibid, folio 432.
On 12 March 2021, Comcare issued a reconsideration decision in which it affirmed the determination made on 12 February 2020.[26] The decision maker stated –
Having reviewed the medical reports of Dr Hardman, Dr Seevnarain, Dr Jain, Dr Seneviratne, and most recently, Prof Joubert, I find that you no longer experience the effects of TOS. I find that while the available medical evidence confirms your initial diagnosis of TOS, it also suggests that all of your current symptomatology is related to a chronic pain condition, for which a no present liability determination was issued, and your diagnosis of MS which is non-compensable. I therefore consider that, on the balance of probabilities, the TOS has resolved.
[26] T111.
Jurisdictional issue
Counsel for Ms Parker, Mr Allan Anforth, asserts the Tribunal has jurisdiction to decide if Ms Parker sustained an injury under s 4(3) of the SRC Act and related entitlements to compensation. Making this assertion, Mr Anforth makes three key points. Firstly, he argues that Comcare is liable for any secondary injury, however described, resulting from the initial injury for which it accepted liability. Furthermore, he asserts that Comcare’s liability is not dependent on a particular diagnosis and it continues even if the original injury for which liability was accepted resolves. In Ms Parker’s case, so the argument goes, Comcare’s liability remains current even though different diagnoses have been applied to describe her right upper limb injury.
Secondly, it is Mr Anforth’s contention that where medical treatment for an accepted injury results in a worsening of symptoms, this amounts to an injury under s 4(3) of the SRC Act for which Comcare is deemed to be liable. In such circumstances, it is not necessary for the injured employee to give notice under s 53 of the SRC Act or to make a fresh claim under s 54 of that Act.
Thirdly, Mr Anforth submits that the issue of an injury under s 4(3) of the SRC Act was able to be decided and was within the power of the person who made the determination on 12 February 2020. This, he argues, is plain on the materials placed before Comcare that Ms Parker’s chronic pain syndrome deteriorated (was aggravated within the meaning of the SRCA) because of the operation[27] performed by Professor Hardman.
[27] Applicant’s written submissions, 22 July 2021 at [18].
Comcare disagrees. In Comcare’s submission, the notice and claim provisions in s 53 and s 54 of the SRC Act apply to an injury under s 4(3) of that Act. Comcare argues that s 4(3) provides alternative grounds for an injury to those set out in s 5A, to which s 5B and s 6 refer. The purpose of s 4(3), Comcare asserts, is to deem a nexus between a new condition caused by medical treatment for an accepted ‘injury’ and the employee’s employment. Even though s 4(3) is a deeming provision, Comcare asserts that the notice and claim provisions apply, as they do with any other kind of ‘injury’.
While Comcare accepts that the notice requirements for an injury of this kind might be satisfied by the provision of medical reports and records in some cases, the same cannot be said in respect of the claim requirements set out in s 54 of the SRC Act. For these requirements to be met, Comcare argues that a written claim must be made that is substantially compliant with the terms of s 54. For a claim to meet this threshold of compliance, so the argument goes, it must set out the circumstances in which liability is asserted against the relevant authority and a medical certificate must be attached.
It is Comcare’s submission that Ms Parker did not give notice and she made no claim in respect of an alleged injury arising under s 4(3) of the SRC Act. Comcare asserts that there was no claim for an injury under s 4(3) of the SRC Act before the primary or reconsideration decision makers, and consequently neither decision maker had power to decide such matters. That being so, Comcare contends the Tribunal has no jurisdiction to decide if Ms Parker sustained an injury under s 4(3) of the SRC Act.
The Tribunal is a creature of statute. For the purposes of s 25(1) of the Administrative Appeals Tribunal Act 1975 (AAT Act), jurisdiction to review certain administrative decisions is conferred upon it by legislation. Section 64(1) of the SRC Act confers jurisdiction on the Tribunal to undertake ‘review of a reviewable decision’. The term ‘reviewable decision’ is defined in s 60(1) of the SRC Act and includes, relevantly, a decision made under s 62 in reference to ‘reconsideration of a determination’. The word ‘determination’ is defined in s 60(1) –
determination means a determination, decision or requirement made under section 8, 14, 15, 16, 17, 18, 19, 20, 21, 21A, 22, 24, 25, 27, 29, 29A, 30, 31, 34, 36, 37 or 39, under paragraph 114B(5)(a) or under Division 3 of Part X.
Thus, it can be seen that the SRC Act provides a three-tiered decision making process in which the merits of a claim may be tested on reconsideration by the determining authority and reviewed by the Tribunal. Importantly, under s 62(4) of the SRC Act, a reconsideration decision maker exercises delegated power and, by operation of s 43(1) of the AAT Act, the Tribunal exercises all of the powers and discretions conferred on the person who made the reconsideration decision for the purposes of review. As the Full Federal Court in Lees v Comcare[28] observed, the Tribunal does not exercise power at large –
In considering the extent of the power of the AAT when reviewing decisions under the Act, it is to be noted, first, that the AAT is authorised by s 64 of the Act to review only reviewable decisions - that is, for present purposes, second tier or reconsideration decisions made under s 62 of the Act. Decisions under s 62 of the Act are the result of the reconsideration by Comcare or a licensed authority of a determination, as defined by s 60 of the Act, concerning which a claimant will have received a notice in writing setting out the terms of the determination and the reasons for the determination (s 61(1)). Secondly, it is to be noted that the powers of the AAT under s 43(1) of the AAT Act are powers "[f]or the purpose of reviewing" the reviewable decision, not powers that may be exercised at large. Further, the powers and discretions that the AAT may exercise under s 43(1) are the powers and discretions conferred by the Act on the determining authority for the purposes of reconsidering a determination under s 62 of the Act. The AAT will not be authorised on review of a reviewable decision to exercise any powers and discretions which would not have been available to the determining authority at the second tier decision-making stage, albeit that such powers and discretions might have been available to the determining authority at the first tier decision-making stage. [29]
[Emphasis added.]
[28] [1999] FCA 753.
[29] Ibid at [39].
The extent of the powers available to the Tribunal on review may be difficult to ascertain in any particular case. In order to resolve this, it is necessary to carefully consider all matters placed before the person who made the particular reconsideration decision that were capable of being decided in exercise of delegated power. The Tribunal is able to exercise those same powers on review. This is so whether or not the determining authority addresses all matters placed before it when determining a claim for compensation under relevant heads of entitlement in Part II of the SRC Act. All matters placed before a determining authority in the context of a compensation claim may be subject to reconsideration under s 62, or in review of such a decision under s 64 of the SRC Act, whether or not they were dealt with in any particular way by the original decision maker.[30]
[30] Irwin v MRCC [2009] FCAFC 33 at [22]; Re Fuad and Telstra Corp Ltd [2004] AATA 11682 at [5].
Consequently, in order for Mr Anforth’s assertions to succeed in respect of the Tribunal’s jurisdiction in respect of an injury Ms Parker allegedly suffered under s 4(3) of the SRC Act, it must be established that an injury of this kind was placed before the primary or reconsideration decision maker and, if so, whether those decision makers had power to decide such a matter.
The materials do not substantiate Mr Anforth’s assertion that matters relating to an alleged injury under s 4(3) of the SRC Act were placed before the person who made the determination on 12 February 2020 or the reconsideration decision on 12 March 2021.
There are several things to say about this.
The proposition that it is not necessary for a claim to be made in order to raise an ‘injury’ under s 4(3) of the SRC Act is incorrect. For this to be so, it would be necessary to construe s 4(3) as a self-executing deeming provision outside the scope of s 54(1) of the SRC Act. There is no proper basis on which to do so.
Section 4(3) lies within the definition provisions set out in s 4 of the SRC Act –
(3) For the purposes of this Act, any physical or mental injury or ailment suffered by an employee as a result of medical treatment of an injury shall be taken to be an injury if, but only if:
(a) compensation is payable under this Act in respect of the injury for which the medical treatment was obtained; and
(b) it was reasonable for the employee to have obtained that medical treatment in the circumstances.
The provision sets out an expanded definition of ‘injury’ in s 4(1) of the SRC Act.[31] Even though the words shall be taken to be have a deeming effect,[32] the provision is conditioned by three factual matters –
(a)a physical or mental injury or ailment suffered by an employee as a result of medical treatment of an injury;
(b)compensation being payable for the injury for which the medical treatment was obtained; and
(c)it being reasonable for the employee to have obtained the medical treatment in the circumstances.
[31] Lang v Comcare [2007] FCA 47 at [22].
[32] Portors v Comcare [2018] FCA 914 at [28].
Each of these preconditions must be satisfied before an ‘injury’ is deemed to have occurred. These are not matters that are consistent with a self-executing deeming provision. On the contrary, in order to determine if the requisite factual elements are established, probative materials and the exercise of judgement are required.
This is consistent with the purposes of the administrative requirements set out in Part V of the SRC Act for notice to be given under s 53 of the SRC Act and for a compensation claim to be made under s 54.
With regard to the requirement for notice, s 53 allows some latitude in the giving of notice ‘as soon as practicable after the employee becomes aware of the injury’. The clear purpose of the notice provision is to ensure that a relevant authority is alerted to an alleged injury in a timely manner, to avoid prejudice occasioned by delay. There is no strict form for the giving of notice under s 53 of the SRC Act and compliance may be achieved with the provision of medical documents or records, for example. Nevertheless, failure to comply has an exclusive effect. The construction for which Mr Anforth contends, that s 4(3) voids or is outside effect of the notice provisions, is not consistent with the objects and purposes of the SRC Act.
I have not been taken to documents sufficient to amount to notice of an alleged injury under s 4(3) of the SRC Act. On my review of the documents before the Tribunal, I am satisfied that actual or constructive notice of such an injury has not been given to Comcare.
Even if I am wrong about this, it does not assist Ms Parker as the jurisdictional point turns on other bases.
The requirement for a claim to be made is a procedural pre-requisite to an entitlement to compensation under the SRC Act.[33] This requirement is not excused for the purposes of s 4(3) of the SRC Act. The particular requirements are set out in s 54 of the SRC Act –
[33] Lang v Comcare [2007] FCA 47 at [43].
(1) Compensation is not payable to a person under this Act unless a claim for compensation is made by or on behalf of the person under this section.

(2) A claim shall be made by giving the relevant authority:

(a) a written claim in accordance with the form approved by Comcare for the purposes of this paragraph; and

(b) except where the claim is for compensation under section 16 or 17—a certificate by a legally qualified medical practitioner in accordance with the form approved by Comcare for the purposes of this paragraph.

(3) Where a written claim, other than a claim for compensation under section 16 or 17, is given to a relevant authority under paragraph (2)(a) and the claim is not accompanied by a certificate of the kind referred to in paragraph (2)(b), the claim shall be taken not to have been made until such a certificate is given to that authority.

(4) If a claim relating to an employee is given to Comcare, Comcare must cause a copy of the claim to be given to the principal officer of the Entity, Commonwealth authority or licensed corporation in which the employee was employed at that time.

(5) Strict compliance with an approved form referred to in subsection (2) is not required and substantial compliance is sufficient.

As can be seen, there are three essential requirements. Firstly, the claim must be given to the ‘relevant authority’ (the relevant authority in this case is Comcare). Secondly, the claim must be made in writing in a manner thatsubstantially complies with the form approved by Comcare for the purposes of s 54(2)(a). And thirdly, the claim must be accompanied by a medical certificate thatsubstantially complies with the form approved by Comcare for the purposes of s 54(2)(b). The giving of a medical certificate is not optional – a claim will not be taken to have been made until a medical certificate is provided.
The term ‘substantially complies’ is not given any special meaning and is a matter for judgment.[34] In these proceedings Comcare has not adduced forms prescribed for the purposes of s 54(2) of the SRC Act.
[34] Buhr v Comcare [2007] FCA 575 at [46]; Telstra Corporation v Barrow [1994] FCA 1141 at [27].
Flick J discussed the essential elements of a claim in Comcare v Muir[35] and said –
“Even though a claim may be generally expressed, it must nevertheless properly and adequately inform Comcare such that Comcare can make an informed decision on whether the claim as made should be met”.[36]
[35] [2016] FCA 346.
[36] Ibid at [30].
Consistent with this understanding, I think substantial compliance may be achieved if the claim and the medical certificate, when fairly read together without an unduly technical approach, are sufficient to convey to Comcare the claim it is being asked to meet. So long as the information set out is sufficient to enable Comcare to comprehend the alleged injury and to investigate if the claim should be met, the notice and claim requirements may be satisfied.[37] These are matters of judgment for the Tribunal on the materials placed before it.
[37] VYRP v Comcare (Compensation) [2018] AATA 3202 at [53]-[55].
On my examination of the documents before the Tribunal, no claim has been made by or on behalf of Ms Parker in respect of an alleged injury under s 4(3) of the SRC Act.
Close examination of the materials held by Comcare at the time the primary determination and reconsideration decisions were made reveals that the surgical procedure Professor Hardman performed on Ms Parker when treating her thoracic outlet syndrome injury (for which Comcare accepted liability) initially resulted in some improvement of her pain symptoms, albeit that her chronic pain condition persisted thereafter. The proposition that this surgical procedure resulted in an injury characterised by worsening symptoms of pain is not apparent on the medical records and documents at the time, and it was not squarely put to Comcare by Ms Parker or her legal representatives. On this point I will go no further as it is not for me, presently, to decide if the surgical procedure Professor Hardman undertook resulted in an injury to Ms Parker.
The determination on 12 February 2020 dealt with Ms Parker’s present entitlements under s 16 and s 19 of the SRC Act in respect of the injury for which Comcare accepted liability on 13 February 2013.[38] The materials placed before the Tribunal do not establish that any issue relating to a fresh injury s 4(3) of the SRC Act was raised with Comcare prior to or in the context of this decision making process which commenced in 2019. Furthermore, no such issue was raised, expressly or impliedly, in the context of the reconsideration decision making process that culminated in the reviewable decision on 12 March 2021.
[38] T19.
I am satisfied that the primary and reconsideration decision makers did not have before them any claim or assertion, however blandly or inaccurately put, relating to an alleged injury under s 4(3) of the SRC Act. In those circumstances, it was not open for those decision makers to decide if Ms Parker sustained an ‘injury’ under that section for which Comcare is liable.
Mr Anforth’s submissions in respect of Comcare’s liability for any secondary injury do not advance the matter. There is no legislative basis on which to distinguish an ‘injury’ from a consequent or secondary injury. The SRC Act refers exclusively to an ‘injury’.[39] Comcare’s liability to pay compensation in respect of an ‘injury’ applies in respect of the resultant effects of an incident or ailment on the employee’s body or mind, noting that more than one ‘injury’ might be sustained.[40] Each ‘injury’ actuates Comcare’s duty to pay compensation.[41]
[39] Canute v Comcare [2006] HCA 47 at [34].
[40] Ibid at [10].
[41] Ibid at [37].
It does not follow, however, that a medical condition or symptom which is the result of or is secondary to an ‘injury’ can be taken to be a separate or discrete ‘injury’ for which Comcare is liable without the causal thresholds for an ‘injury’ being satisfied. Where a physiological change or disturbance of the normal physiological state occurs as a result of an ‘injury’, this may amount to an ‘impairment’ whereupon compensation may be payable for that ‘injury’.[42] For any such change to amount to a discrete ‘injury’, the applicable causal thresholds for an ‘injury’ that set out in s 5A, s 5B or s 4(3) of the SRC Act must be satisfied.
[42] Bailey v Broadsword Marine Contractors Pty Ltd [2017] FCAFC 219 at [102].
The statutory criterion of an ‘injury’ is antecedent to the conception of compensation entitlement for which Comcare is liable.[43] That criterion requires causal thresholds for an ‘injury’ to be applied.[44] Without the causal threshold to employment being surpassed, the ‘injury’ and compensation provisions of the SRC Act are not engaged.
[43] Ibid.
[44] Military Rehabilitation and Compensation Commission v May [2016] HCA 19 per French CJ, Kiefel, Nettle and Gordon JJ at [42]-[44]; Comcare v Canute [2005] FCAFC 262, per French and Stone JJ at [71] - [77] and Giles J at [84].
These are matters that require assessment of relevant materials and the making of a decision. The deeming element of s 4(3) of the SRC Act is not so broad. It applies only in respect of the causal connection between the medical treatment and the person’s employment.[45]
[45] Portors v Comcare [2018] FCA 914 at [29].
Furthermore, s 4(3) of the SRC Act is essentially preconditioned by the existence of a physical or mental injury or ailment resulting from medical treatment for an ‘injury’. For reasons Gageler J explained in Military Rehabilitation and Compensation Commission v May,[46] when determining if an injury in the ordinary sense has occurred, there is an important threshold difference between becoming sick and getting hurt. Thus, for the purposes of s 4(3), it is first necessary to determine if an identifiable physiological change or a disturbance of the normal physiological state has occurred that is consistent with a physical or mental injury (in the ordinary sense) or an ailment. If so, then it is necessary to determine if the physical or mental injury, or the ailment, is the result of medical treatment for an ‘injury’. These are matters for assessment and determination in each case, subject to claim.
[46] [2016] HCA 19 at [75].
While Mr Anforth’s assertion that Comcare’s liability is not contingent upon or confined to a particular diagnosis may be correct, it does not follow that medical diagnosis of an ailment is not relevant to the establishment of an ‘injury’. Medical diagnosis may serve to provide a medical basis for understanding the nature of an ailment or to particularise an injury (in the ordinary sense) in terms of physiological changes or disturbances, and it may illuminate aetiological and causal factors.
Furthermore, medical diagnoses may change or evolve over time as fresh information comes to light or in the context of advances in medical science, and such changes might affect Comcare’s liability in a particular case.[47] Importantly, it is not a diagnosis or a change in diagnosis that is determinative of Comcare’s liability, it is the existence of an ‘injury’. Where a change in medical understanding negates the causal nexus with employment on which an ‘injury’ was established, a contrary factual finding may be made, thereby relieving Comcare from further liability for compensation.[48] Conversely, where a change in medical opinion leads to a new diagnostic label being applied to an ‘injury’ without upsetting the causal nexus with the employment, Comcare’s liability for compensation in respect of the ‘injury’ will continue.
[47] See Telstra Corporation Ltd v Hannaford [2006] FCAFC 27, for example.
[48] Telstra Corporation Ltd v Hannaford [2006] FCAFC 27, per Conti J at [57].
In Ms Parker’s case, a number of diagnoses have been proffered in explanation of her right upper limb and right shoulder symptoms. These include –
(a)supraspinatus (muscle) (tendon) strain (right);
(b)nerve root plexus disorders (right);
(c)chronic pain syndrome;[49]
(d)thoracic outlet syndrome with superimposed sympathetic dystrophy;[50] and
(e)neurogenic thoracic outlet syndrome’.[51]
[49] See T39, folio 194 and T56, folio 241, for example.
[50] T44.
[51] T50, folio 217.
Comcare’s liability to pay compensation is in respect of the ‘injury’ it accepted Ms Parker sustained. That ‘injury’ is not dependent upon any particular diagnosis, more is required to establish the causal connection with her employment. The extent to which the different diagnoses impact on the existence of the ‘injury’, if at all, is a matter for determination, having regard to relevant probative materials.
The first consideration is whether the diagnoses refer to different medical conditions characterised by different physiological phenomena or processes, or different causes, or affecting different parts of Ms Parker’s body, than the ‘injury’ for which Comcare is liable. If so, the causal connection with Ms Parker’s employment and Comcare’s liability may be brought into question. Where it is established that the diagnoses are different medical descriptions of the same physiological phenomena or processes, affecting the same parts of her body, Comcare’s liability will continue unless the causal connection with her employment is broken.
These are matters for evidence.
In conclusion, I am satisfied that the allegation Ms Parker suffered an injury under s 4(3) of the SRC Act has not been subject to a claim for the purposes of s 54 of that Act. The proposition that an injury of this kind was before and was capable of being decided by the primary and reconsideration decision makers is not made out. Consequently, the Tribunal has no jurisdiction to decide if Ms Parker suffered or if Comcare is liable to pay compensation for such an ‘injury’.
Decision
The Tribunal has no jurisdiction in respect of an alleged ‘injury’ under s 4(3) of the SRC Act.

I certify that the preceding 64 (sixty-four) paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member.

...................................[sgd]..............................
Associate
Dated: 23 August 2021
Representatives

65.     Date(s) of hearing:

66.     11 August 2021

67.     Date final submissions received:

68.     29 July 2021

69.     Counsel for Applicant

70.     Solicitor for Applicant

71.     Special Counsel for Respondent

72.     Solicitor for Respondent:

73.      Mr Allan Anforth

74.     Kathryn Lee, DAVID HEALEY SOLICITORS

75.     Vanessa Parkins, MORAY & AGNEW LAWYERS

76.     Ben Mason, MORAY & AGNEW LAWYERS