Phillips and Comcare - [2001] AATA 419

DECISION AND REASONS FOR DECISION [2001] AATA 419

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V98/1345

GENERAL ADMINISTRATIVE DIVISION       )          V00/892
           Re      MONICA PHILLIPS
  Applicant
           And    COMCARE
  Respondent

DECISION

Tribunal Mrs Joan Dwyer, Senior Member Mr J. Brassil, AM, Member Dr P Fricker, Member

Date18 May 2001
PlaceMelbourne

Decision 1. In matter V98/1345, the reviewable decision of 22 October 1998 which varied the determination of 13 October 1998 by revoking liability for left total knee replacement surgery is set aside. This means that Comcare is liable to pay compensation in respect of the surgery performed by Mr Critchley on 23 March 1999. 2. In matter V00/892, the reviewable decision of 6 June 2000 is set aside and the determination of 22 October 1998, which ceased liability for accepted conditions from 22 October 1998, is revoked. Liability to pay compensation for the accepted conditions continues from 22 October 1998. 3. The Tribunal orders under s 67(8) of the Act that Mrs Phillips' costs of these proceedings be paid by Comcare. 4 Liberty is reserved to the parties to apply if further directions or findings are required for implementation of this decision.

Sgd) Joan Dwyer
Senior Member
COMPENSATION –injuries sustained in car accident which occurred in course of employment – conditions accepted as compensable – decisions revoking liability to pay for total knee replacement and to pay ongoing compensation – prior knee surgery – whether accident in compensable circumstances aggravated knee condition – neck and right arm problems difficult to diagnose – many surgical procedures without significant improvement – whether video inconsistent with applicant's evidence – reviewable decisions set aside – continuing entitlement to compensation
PRACTICE AND PROCEDURE – primary and reviewable decisions not before Tribunal at commencement of hearing
Safety, Rehabilitation and Compensation Act 1988 ss 4(1) 62(1)(a), 4(1), 67(8)

REASONS FOR DECISION

18 May 2001 Mrs Joan Dwyer, Senior Member Mr J. Brassil, AO, Member Dr P Fricker, Member

Mr Carey of Counsel appeared for Mrs Phillips. Mr Lenczner of Counsel appeared for Comcare. The Tribunal had before it the documents ("the T documents") lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 ("the AAT Act") and also the exhibits tendered during the hearing. Mrs Phillips appeared and gave evidence. Evidence on behalf of Mrs Phillips was given by Dr Amor, her general practitioner, by Mr Coates, a treating orthopaedic surgeon, who gave evidence by video (wrongly described in the transcript as by telephone) and by Mr Wallace a neurosurgeon. The respondent called Mr Nye, a neurosurgeon who gave evidence over the telephone, and Mr Schutz a consultant surgeon.
The Tribunal had before it the documents ("the T documents") lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 ("the AAT Act") and also the exhibits tendered during the hearing.
In this matter the Tribunal considered two applications for review. The first V98/1345 is an application for review of a reviewable decision made under s 62(1)(a) of the Safety, Rehabilitation and Compensation Act 1988 ("the Act"). That section provides for reconsideration by a determining authority on its own motion. On 22 October 1998 (T232 p371-372) a delegate of Comcare stated that he was reviewing an original determination dated 13 October 1998 which had accepted "aggravation of pre-existing cervical disc degenerative disease and pre-existing ligamentous instability in the left knee" as compensable and which had accepted liability for "left total knee replacement". The reviewable decision stated that it varied the determination of 13 October 1998 by revoking liability for "left total knee replacement". It also stated that in accordance with a proposal contained in a letter of 22 September 1998, Comcare would cease liability to pay compensation from 22 October 1998.
The T documents did not include any determination of 13 October 1998. The Tribunal arranged for the Deputy District Registrar to write to the parties seeking clarification. After a telephone directions hearing on 14 May 2001 a copy of a letter of that date addressed to a treating orthopaedic surgeon was forwarded to the Tribunal by the applicant's solicitor. It stated:
I refer to your letter dated 23 September 1998, regarding meeting costs for a "left total knee replacement."
Ms Phillips has an accepted compensation claim for an "aggravation of a pre-existing cervical degenerative disc disease and pre-existing ligamentous instability in left knee". Comcare is liable to pay all reasonable medical treatment obtained for this condition. Therefore approval has been given for Ms Phillips to have a "left total knee replacement."

The Tribunal received a letter dated 15 May 2001 from the solicitors for Comcare agreeing with the Tribunal's analysis of the decisions in this matter.

The second reviewable decision in matter V2000/892 was made on 6 June 2000. It was not before the Tribunal at the time of hearing but a copy was obtained from the applicant's solicitor after the hearing. It states that it is a review of an original decision of 22 October 1998. That decision is described in the index to the T documents as the reviewable decision in matter V98/1345. However it is also an original decision to cease liability for "aggravation of pre-existing cervical degenerative disc disease and pre-existing ligamentous instability in left knee" from 22 October 1998. The decision of 6 June 2000 seems to be a reviewable decision of that aspect of the decision of 22 October 1998.
The Tribunal was informed that no claim for permanent impairment had been made to Comcare. Thus that issue is not before the Tribunal.

history of claim

Mrs Phillips' claim for compensation in respect of "aggravation of pre-existing cervical degenerative disc disease and pre-existing ligamentous instability left knee" followed a car accident on 13 September 1993. Mrs Phillips, who was employed as an Aboriginal Liaison Officer at Shepparton by the Department of Employment, Education and Training ("DEET"), was returning to her office from a client visit when she collided with the back of a four wheel drive vehicle. She attended on the day of the accident at the Wyndham House Clinic, Shepparton where she was seen by Dr Guymer who noted she had "pain in right shoulder, right chest and right hip. Shaken up, Nausea, right hand pain, left-knee pain." Dr Guymer's diagnosis was that Mrs Phillips was suffering "Trauma from seat belt, Post trauma 'shock'." (T3 p8)
Mrs Phillips lodged a claim for compensation on 5 November 1993 (T12 pp25–31). It was accepted on 8 November 1993 (T14 p33). The issues before the Tribunal arise from decisions ceasing liability from 22 October 1998.
The conditions in respect of which Mrs Phillips seeks compensation are an injury to her left knee and injury to her neck and right arm. The medical records show that those injuries were referred to in medical certificates and notes by Dr Guymer, to whom Mrs Phillips was sent by her manager on the day of the accident, and by her local doctor, Dr Amor, who she saw the day following the accident. His medical certificate dated 14 September 1993 (T4 pp10-11) states that she presented with "cervical neck pain, right side, right clavicular pain, left knee pain, right hand and wrist pain". He diagnosed "musculo-skeletal bruising ? fracture" and "traumatic synovitis of left knee".
Unfortunately Mrs Phillips did not recover from her injuries, which were accepted as compensable, as she and her doctors hoped or expected. She spent years on reduced hours graduated return to work plans, often being unable to maintain even her restricted hours. She underwent arthroscopy of the left knee performed by Mr Coates on 24 October 1996, and a total replacement of the left knee was performed on 23 March 1999 by Mr Critchley. For the injury to her neck and right arm a number of invasive procedures were performed including a nerve block procedure arranged by Mr Kinloch, in August and again in October 1994, surgery for thoracic outlet syndrome by Mr Wallace on 8 January 1997 and facet joint denervation at the right C4-C6 and a C2 nerve root block by Mr Todhunter on 14 January 1998 and further facet joint denervation in August 1999.
At the time Mrs Phillips gave evidence she said that her left knee was very much improved after the total knee replacement. However she said that although the surgery for the thoracic outlet syndrome had relieved pain in her right hand she still had headaches and significant problems with her right arm.
A complication for both parties is the fact that Mrs Phillips' left knee had already been severely damaged many years earlier, as a result of a fall while working as a nursing aide in Melbourne in the late 1970's. The pre-existing knee problems seem to have been first mentioned by Mr Coates in letters to Dr Amor (T55) and DEET (T57) dated 28 February 1995. A full history was not obtained until Mrs Phillips saw Mr Shumack at the request of Comcare on 6 May 1996. He reported (T107 p190):
Mrs. Phillips told me that she had been in good health with the only significant previous illness or injury being a problem with her left knee, secondary to a fall during her nursing training some fifteen years ago. It had caused damage to a meniscus and cruciate ligament, for which she underwent five operations on that knee, carried out by the late Mr. Neil Bromberger. She told me she had had a good result from that treatment with no on-going problems with the knee, or with her health otherwise, until the involvement in the subject accident, which she said had occurred on 13 September 1993.
The major issue in regard to the knee is whether the accident contributed to the need for knee replacement surgery which was undertaken by Mr Critchley in March 1999. The major issues in regard to the ongoing neck and arm complaints seemed to be whether they are genuine or not, whether they are exaggerated, and whether the symptoms result in an incapacity for work.
Mrs Phillips described an unusual childhood. She was born in 1953 and was one of 15 children. Her family travelled through northern Victoria doing fruit picking while she was aged 6 to 11, seeking a warmer climate for her mother's health. She did not really start school until she was 11 when the family settled near Castlemaine. Mrs Phillips then stayed at school only until she was 15 when she started work at Castlemaine Woollen Mill. A sister married and moved to Queensland and Mrs Phillips moved there too and started work as a nursing aide. She continued in that occupation when she returned to Victoria and went back to it after her marriage in 1975. She was working as a nursing aide when she fell, and injured her left knee. She said that happened in about 1976.
The Tribunal received no medical records as to treatment at that time. Mrs Phillips said she had X-rays and an arthroscopy of the left knee. She then had four or five operations on that knee. The treating surgeon was Mr Bromberger who has since died. Mrs Phillips said that after he died she had a scar revision which she believed was in about 1982. She did not remember the name of the surgeon who had performed that operation.
Mrs Phillips had to give up work as a nursing aide after her left knee injury. In about 1985 she started working at the Dandenong Aboriginal Co-operative. In 1989 Mrs Phillips and her husband moved to Katunga, where they had purchased a dairy farm. They moved from Melbourne after Mr Phillips was involved in a serious motor vehicle accident. Mrs Phillips said (trans. p19) "He had his pelvis broken in four places, both legs were broken and he had internal injuries. He was in Dandenong Hospital for three months." Mr Phillips went back to work in transport for 12 months, but found he could not cope. The family moved to a dairy farm, so that, with the assistance of his family, Mr Phillips could be self-employed.
Mrs Phillips described being actively involved in assisting her husband in the running of the dairy farm until the car accident on 13 September 1993. She said they raised from 20 to 30 replacement heifers for the following season and it was her job to try and start the calves drinking and feed them every morning and night. She collected the milk from the dairy and used to carry two 20 litre buckets of milk, one in each hand, about 100 metres to the calf pens. Her work with the calves would take about an hour, then she would come back to the dairy and wash and hose down the yard for her husband who would be just about finished milking. When Mr Phillips was away, she would also do the milking. She said the milking took about two hours but it would take at least half an hour to get the cows from the paddock and half an hour to set up. Usually while one was finishing milking the other would wash the yard down. The whole milking process would take about three and a half hours. Mrs Phillips said that she also used to feed out hay, and change the electric fences while her husband was milking, so that the paddock was ready for the cows to go back into after the milking. Feeding out hay involves driving a tractor up the track with another person on the back feeding out the hay. She had her own vegetable patch and she used to dig that herself and grow all the vegetables for the family. Mrs Phillips said she did the housework too, although her eldest daughter would help with washing and ironing and cooking.
In 1990 Mrs Phillips learnt that a position was coming up as an Aboriginal Liaison Officer with DEET in Shepparton. She applied for the position. Her application was successful. When Mrs Phillips started with DEET she had to learn how to use a computer as she had never used one before. She also had special training to understand the different payments to which people may be entitled, such as Jobsearch, Newstart, Abstudy, Austudy, traineeships and cadetships. There was a lot of driving in the position, Mrs Phillips made home visits and visits to Aboriginal communities, she attended at work places and at the Rumbalara Aboriginal Co-operative. Mrs Phillips would use a Commonwealth car for those trips. She said she did home visits on two or two and a half days a week and was in the office at other times. The round trip from the farm to Shepparton and back was 88 kilometres. It would take approximately 30 minutes to get to work and 30 minutes home again.
Mrs Phillips said the family had a very active lifestyle prior to her husband's accident in Melbourne. They went bushwalking and camping. After the move to Katunga there did not seem to be time for those activities but they would occasionally have a day trip or a week-end up the river. She had an exercise bike that she tried to use every day to keep fit as recommended by her doctor. She said it did not cause any trouble with her left knee. She also had a manual car that she used to drive to work. She said she had no neck pain, arm pain or knee pain.
Mrs Phillips' evidence was that things changed very significantly after the car accident on 13 September 1993. Her manager, Mr O'Brien, took her to the doctor on the day of the accident and then he drove her home and organised for someone to drive her car home. Next morning she felt very bad and her husband took her to her own doctor, Dr Amor. She described how, in her words, "things got progressively worse" (trans. p32). She said she had developed a headache the first day and it would not go away. Her neck started to stiffen and her doctor sent her to a physiotherapist who put her in a neck brace. She said that helped quite a bit. She had numbness in her right arm and her left knee was still very swollen and very sore. She had trouble walking and trouble doing anything physically. She could not lift or hold anything in her right hand. She could not shower herself properly. She had difficulty dressing herself.
Mrs Phillips said that when Dr Amor gave her a certificate for a week or a fortnight off she thought that she would be alright in that time but that did not happen. She had problems when she attempted to return to work in October 1993 and started a long history of attendances on the Commonwealth Rehabilitation Services and referrals to many specialists.

left knee condition

There is no dispute about the fact that Mrs Phillips had symptoms of pain and limitation of movement requiring arthroscopy or knee replacement in 1996. Nor is there any dispute that, having had the more conservative arthroscopy performed by Mr Coates on 24 October 1996, Mrs Phillips required a total knee replacement when it was performed by Mr Critchley on 23 March 1999. The issue is whether the knee injury sustained in the car accident on 13 September 1993 contributed to the need for the total knee replacement surgery performed by Mr Critchley in 1999.
Mr Lenczner submitted that the Tribunal should find that Mrs Phillips recovered from the knee injury she sustained in the car accident in a few months, and that the total knee replacement performed in October 1999 was simply a result of the previous knee injury and was not contributed to by the knee injury sustained in the accident on 13 September 1993.
As set out in paragraphs 7 and 9 of these reasons, both Dr Guymer, who saw Mrs Phillips on the day of the accident, and Dr Amor, who saw her the following day, recorded symptoms in the left knee. Dr Guymer noted left knee pain, Dr Amor made the same note on a medical certificate but his clinical note records "swelling too." He diagnosed "traumatic synovitis of left knee". His notes record "knee still sore and little swollen" on 20 September 1993. On 28 September 1993 he noted "left knee still painful and stiffness". On 11 October 1993 he wrote "left knee improving". Dr Amor's clinical notes do not seem to mention the left knee after October 1993 but the certificate of incapacity he signed in respect of the period 18 October 1993 to 1 November 1993 still gives synovitis of left knee as one diagnosis. The T documents do not seem to include any of Dr Amor's later certificates of incapacity to show how long he maintained that diagnosis.
The next record of Mrs Phillips mentioning ongoing problems with her knee is in a report from Mr Coates who saw her on referral from Dr Amor on or about 2 December 1993. He wrote to Dr Amor on 2 December 1993. In regard to the knee he wrote (A5):
In addition she sustained an injury to her left knee. She has experienced pain about the anterior aspect of the knee, and a hot burning sensation in the joint. She does not think there has been any particular problem with swelling affecting the knee. In the past however she has had seven operations on this joint.
. . .
On examination she is a well-looking woman. There is some wasting of her left quadriceps and she has several healed incisions about the medial aspect of the left knee. She is able to straight leg raise without difficulty, and there is approximately a Grade I of instability on undertaking valgus stress testing of the left knee. There is also a Grade I positive Lachmann test. There is no particular crepitus in the joint but she is tender about the medial joint line. There was no obvious effusion in the knee.
. . .
I reviewed x-rays of her knee, . . . She does have evidence of medial compartment osteoarthritis affecting her left knee, and there is joint space narrowing and osteophyte formation.
Mrs Phillips was reviewed by Mr Coates on 8 December 1994. Mr Coates wrote to Dr Amor that day: "I reviewed Monica . . . she continues to experience problems with her left knee causing pain and swelling."

In a report to Comcare dated 28 February 1995 (A5) Mr Coates noted:
In addition she continues to experience pain from her left knee and she has established osteoarthritis affecting the medial compartment of her left knee and the injuries that she sustained in the motor vehicle accident have aggravated these pre-existing changes.
We find that in the period 1994 and 1995 Mrs Phillips' major medical problems were associated with her neck and right arm symptoms, but she continued throughout that period to also have problems with her knee. Although Dr Amor's notes do not show it, by early 1996 she must have been raising with him her concern about the increasing problems with her left knee. On 5 July 1996 Dr Amor referred Mrs Phillips back to Mr Coates specifically in respect of her left knee pain with a note (A5) saying, "Anti-inflammatories do not provide much relief". Dr Amor acknowledged in cross-examination that he had not recorded knee problems for some years prior to that, but he said that Mrs Phillips must have been complaining of increasing knee pain, for him to have referred her to Mr Coates because of the knee in July 1996.
Confirmation of the fact that Mrs Phillips had ongoing knee problems after the car accident is given in a report by Mr Shumack who saw Mrs Phillips at the request of Comcare on 6 May 1996. At that time her entitlement to compensation was not challenged. Mr Shumack wrote in his report of 11 June 1996 (T107) that Mrs Phillips had told him that since the car accident "she was constantly aware of, and frequently suffers pain in her left knee, and this also varied with activity, especially walking." He added:
It is mainly in the front of the knee and behind the patella. It is accompanied by marked and often painful crepitus and swelling.
Because of all of these symptoms, she has had great difficulty in carrying out daily activities, including most aspects of housework, work about the farm in which she had previously been involved (such as milking cows), and in the garden. In particular she had difficulty in attempting to continue in her job.
The knee problem particularly interferes with her walking on uneven ground as the knee tended "to catch" and often felt unstable, although she had had no actual fall.

Mr Shumack commented that the knee pain was relieved by rest overnight and that Mrs Phillips recognised that eventually she may require further surgery on her knee.

As to his physical examination, Mr Shumack noted that Mrs Phillips walked with a slight left limp. He continued:
Examination of the left knee demonstrated the presence of an old medial surgical scar, a range of motion from 0o to 120 o of flexion, marked medial collateral ligament laxity both in full extension and 20 o of flexion, but no significant antero-posterior laxity, nor sign of on-going cruciate ligament insufficiency. Tenderness along the medial joint line particularly, and marked crepitus in the patello-femoral compartment, were also present.
Her right knee was clinically normal.
Mrs. Phillips brought with her radiographs of the knee dated September 1993, and these demonstrated early medial compartment osteophytosis (degenerative change), . . . .
I arranged for Mrs. Phillips to have up to date X-rays of the knees, which have now come to hand. These demonstrate a marked degree of degenerative arthritis in the medial and patello-femoral compartments, with rimming osteophytosis, marked medial joint space narrowing especially in the weight bearing views, some lateral translation of the tibia indicating the ligamentous laxity, and a somewhat sub-luxed patella.
1.. . . .
So far as the knee condition is concerned, the radiographs demonstrated that there was already a significant degree of medial compartment and patello-femoral compartment degenerative change present at the time of the accident, perhaps rendering that joining more likely to suffer an injury as a result of the stresses of a low impact accident.
Those pre-existing changes are the long term residue of the previous knee injury and its necessary surgery.
2.As stated above, it is possible the mechanism of the described accident may have aggravated both pre-existing conditions.
3.. . . .
In so far as the knee condition is concerned, an exacerbation of pre-existing degenerative change may have occurred, with aggravation of the ligamentous instability which had been part of that change.
In each area, there has resulted considerably more need for treatment than would normally have been expected had the conditions pursued their normal course.
4.I know of no way of accurately assessing when an aggravation can be said to have ceased its effect. I can only regard each of the conditions as possibly being "further along the degenerative pathway" than they may have been had the episode not occurred. This probably applies to a greater extent in the case of the neck injury than the knee.
5.. . . .
It is possible that the knee condition will progress only slowly, but, it eventually will require further surgery. Perhaps a more dedicated programme of exercises to maximise the efficiency of the muscles about the knee, together with a supporting brace to limit abnormal movements, (particularly to "unload" the medial compartment), may be worthwhile.
. . . .
9.As stated the knee condition is likely to worsen and may require further surgical treatment within the next several years. It will become a matter for judgement as to whether sufficient ligamentous stability is present as to warrant a total replacement arthroplasty, or alternatively arthrodesis of the knee may prove necessary. (emphasis added)
On 15 August 1996 Mr Coates wrote asking Comcare to approve a total knee replacement. He reminded Comcare that they had accepted that the accident aggravated pre-existing arthritic changes in the left knee. Comcare sought a further opinion from Mr Shumack. He advised on 20 September 1996 (T133 p224) that he could not disagree with the statement that the motor vehicle accident had aggravated the pre-existing degenerative changes in Mrs Phillips' knee and that total replacement of the knee could be the preferable ultimate surgical treatment. However he thought that should be regarded as a treatment of last resort and he suggested an arthroscopy first. Mr Shumack concluded his letter (T133 p224):
At the same time, it appears that the deterioration in the status of her knee, evident between the time of the accident in 1993, and the examination and radiographs of 1996 suggests that exacerbation of the pre-existing condition has been considerable, and must be regarded as the principal cause of her accelerated need for the surgery. This being so, most of the expense of the procedure and rehabilitation could be the responsibility of Comcare.
Comcare accepted liability for the proposed surgery (T134 p225). The delegate, Mr Borci, noted that Mr Shumack recommended an arthroscopy which was less radical than a total knee replacement, but he wrote that he was prepared to pay for whatever procedure Mr Coates and Mrs Phillips decided was most appropriate. Arthroscopy took place on 24 October 1996.
Mr Coates gave his evidence by video. He described what he found at arthroscopy of the knee in October 1996. He said (trans. p173 ):
[S]he ha[d] established osteoarthritic change which affected in particular the medial compartment of the left knee. She had osteophyte formation. There was no medial meniscus remaining and there was exposure of the sub-cho[n]dral bone. In other words the bearing surface had been completely lost off the inside part of her knee.

In referring to the pre-existing osteoarthritis Mr Coates said (trans. p174):

It is possible and it is impossible to say to what extent, but it would appear that shortly after the accident her symptoms affecting her left knee became much more troublesome. It is known that apparently minor injuries in a joint in which there is pre-existing degenerative change may lead to the development of symptoms which can become disabling.

In cross-examination Mr Coates agreed with Mr Lenczner that if the knee problems after the car accident in September 1993 settled for a year or even longer, that would suggest that the blow to the knee was not a major force damaging the knee. Mr Lenczner discussed with Mr Coates his reports of December 1993 and December 1994, and the reference to the knee in those two reports. Mr Coates agreed that he examined the knee in 1993 and did not find any swelling and that in 1994 he did not check what Mrs Phillips was referring to when she said she continues to experience problems with her left knee causing pain and swelling. He said the knee problem at that stage did not seem to be as severe as the neck problem.
Mr Coates said that he connected the symptoms in the knee with the accident in 1993, on the basis of the history Mrs Phillips gave. He said (trans. p178):
She basically gave me the impression that prior to this accident she didn't have symptoms, following the accident she believe[d] that her knee became painful and [it] is basically on her history that any relationship that is drawn between the two.
Mr Lenczner suggested to Mr Coates that a graph could be used to show the difference between how the knee would have been as a result of ongoing degeneration, even if there had not been the accident in 1993, and how the knee was with the ongoing degeneration and the accident in 1993. Mr Lenczner suggested to Mr Coates that the two lines would meet and Mrs Phillips at some stage would just go on as she would have been if she had not had the 1993 incident. Mr Coates did not agree with that. He replied (trans. p184):
I think your suggestion of a graph is a good way of expressing it but I would not put the – I would say that there is a blip on the graph and then if you like you would have the line which would run along which would be if she had never had an accident and then you would have a little bit of a blip on the graph and the new line parallel the line which would be there if she hadn't had that particular accident and it is a question of how far that blip is. (emphasis added)
Mr Lenczner misrepresented that answer in his next question and asked "would you say four or five years would be a fair way of putting this extra line before it mixed [sic] the old one." The Tribunal pointed out to him that the witness had not said that the two lines would ever meet, but in fact had referred to parallel lines. Mr Lenczner confused the issue by again asking how long the aggravation would last.
Mr Lenczner persisted in putting his view that the aggravation would stop within a given period in spite of the doctor's clear answers indicating that he thought the line remained parallel. Mr Coates explained his position again (trans. p185):
I think the best way I can explain it is I believe that it shortened the longevity or – well, if we accept there was a significant blow I think what I would like to say is I believe that it may have hastened the deterioration of her knee, shortening the lifespan of an already osteoarthritic knee. The question I cannot answer is how long, how many years, months or weeks did it shorten the lifespan of that already arthritic knee. I cannot give an answer to that question.
It is difficult to find an expert opinion on which Mr Lenczner could have been relying, when he attempted to put to Mr Coates the suggestion that the aggravation of the left knee sustained in the motor accident was temporary only. It was not the view of Mr Shumack who, as set out in paragraph 30 above, said he thought the effect of the aggravation was to make the knee "further along the degenerative pathway". Mr Nye did not address the issue, nor did Mr Schutz in his report of 24 September 1999 (R2) save to say on page 9:
Clearly the left knee was previously and substantially injured and required several reconstruction operations and had significant degeneration. Although the left knee was reportedly injured that injury due to the car accident is likely to have been minor, although increasing the symptoms. I consider that the car accident was not a significant contributing factor to the eventual need for a knee reconstruction.
Mr Davie who gave a report for the respondent, but did not give evidence, certainly did not express the opinion that the aggravation of the knee sustained in the accident had ceased at any stage. His opinion contained in his report was the same as that of Mr Shumack and Mr Coates. He wrote on the last page of his report (R3) of 12 April 2000:
Mrs. Phillips has sustained an injury on the 13th September, 1993. It has resulted in ligamentous damage to the left knee with aggravation of pre-existing arthritis in the left knee. It has accelerated the need for a knee joint replacement, which she has had, and the knee joint replacement has been successful.
The respondent had arranged surveillance of Mrs Phillips. Seven minutes of video film were taken over 15 days. An attempt was made to show Mr Coates the video of Mrs Phillips shopping in Numurkah but he said it was so jerky he could not comment on it. Mr Lenczner asked Mr Coates whether he would be surprised that the film suggests that Mrs Phillips does not have any limp. He said that was quite consistent with what he would have expected because in his report he had commented that Mrs Phillips had had a successful knee replacement. He said he would expect her also to have considerably diminished pain and he believed her sense of stability of the knee would also be better than it had been prior to the knee replacement.
Mr Lenczner cross-examined Mrs Phillips at some length as to whether she had any residual knee problems prior to the car accident in September 1993. She said she did not, although she acknowledged that she took some care not to strain the knee and used an exercise bike to strengthen the knee. She described how prior to the car accident she had helped her husband with many of the farm tasks. She said after the accident she could not do so.
Mrs Phillips said that between 1982 and 1993 she used the exercise bike two or three times a week, but she has not been able to use it since her knee started to play up. She does attempt to do some work around the property because otherwise she gets very bored. She found she was not physically able to carry even half buckets of milk, or to put the milking cups on the cows or to drive the tractor. She said her husband and youngest daughter tried to manage the farm without her help, but after about 12 months they decided that her husband could not manage on his own and they could not afford to pay someone else to help, so they sub-divided the farm. First they leased and then they sold half the farm and the dairy cattle. They now live on only half the property and do not milk cows any longer. They are trying to raise some beef calves. Mr Phillips has bought a baler and is also baling hay for other farmers in the area.
In cross-examination Mrs Phillips agreed that the knee did occasionally cause some pain prior to 1993, particularly if she twisted it or something like that, but she said she was always careful with it and it did not prevent her engaging in any of her activities on the farm in the years 1989 to 1993. Mr Lenczner endeavoured to get Mrs Phillips to agree that on occasions she had anti-inflammatories prescribed for her knee between 1982 and 1993. She did not agree and there was no evidence to that effect. It is not shown in Dr Amor's notes and he was her treating practitioner from May 1990. Dr Amor in his evidence said that he had no recollection of Mrs Phillips having problems with her left knee before the car accident in 1993.
Mr Lenczner put to Mrs Phillips that the fact that Dr Amor had recorded her complaining of problems with her knee from the accident in September 1993 and in October 1993 but had no further record to knee problems until December 1994, indicated that there had been a recovery of the knee and then a further development of a problem with the knee in about December 1994. Mr Lenczner acknowledged that Mr Coates also had a note of knee problems in December 1993 but he put to Mrs Phillips that she was not complaining of knee problems for the year between December 1993 and December 1994. Mrs Phillips did not agree that the reason why she did not tell Dr Amor of knee problems in that time was because she was not having those problems. She said (trans. p105):
I didn't tell him because there was nothing he could do about it and I got sick of hearing myself grizzle and whinge about what was wrong with me.
Mrs Phillips said her left knee had improved out of sight since she had the knee replacement done in March 1999. She said it has relieved the pain but sometimes if she moves too quickly it will pinch on a bit of cartilage and give her a sharp pain. She said that is not there all the time. Mr Lenczner asked her whether she tried to walk in a way that protects the knee. He said he had noticed that she had limped getting into the witness box on each of the first two days of hearing. Mrs Phillips replied (trans. p74) "I try to walk normally but sometimes it doesn't let me." Mr Lenczner asked whether she would ever walk confidently and stretch and stroll out. She replied (trans. p74) "Yes I try to." She explained that the orthopaedic surgeon had told her that it was better for her to try and walk normally, and she did so, but the knee sometimes catches, particularly if she gets up and starts moving after sitting down. Mr Lenczner asked Mrs Phillips whether she had been limping for the Tribunal and she answered "No".
Mr Phillips' evidence confirmed that of Mrs Phillips. He explained that the decision to move to a farm after his accident was made because he had been brought up on a dairy farm and a farm is a family business, so that if he had bad days then Mrs Phillips and the children would be able to run the farm for him. He said (trans. p152) "We went up there as a family to run the farm and also to keep me in a job." He said they started on the farm in June 1989. He said at that stage Mrs Phillips was milking with him and when he was irrigating she would be milking on her own. He said she would feed the calves and she would also feed the cows. She was helping wash the yard down. He said she also did the household duties and gardening but rearing the calves was her specialty. He said on a farm you usually work about 12 hours a day. He said Mrs Phillips would come over to the dairy probably about 7.30 or 8 o'clock in the morning when she was not doing the morning milking. She would help him clean up after the morning milking and she would be there at night at 7.30 to help him wash up as well. He said that until the car accident Mrs Phillips helped and made no complaints of neck pain, right arm pain or left knee pain, although she did have terrible scars over her knee.
Mr Phillips said that prior to the accident, after the last knee operation in about 1982, "It wasn't too bad – we were doing things that normal people do" (trans. p153). He said they enjoyed dancing and they were going out dancing, camping and bushwalking. They had four children and they were always very active and doing things together with the children. He said after Mrs Phillips got the job with the CES in 1991, she worked there in the day, but she continued to assist him on the farm before and after work. He said she would come and help him finish off after the milking or would feed the calves in the morning before she would go to work.
Mr Phillips said that he remembered the time Mr O'Brien brought Mrs Phillips home on the day of the accident. He said she was very distressed and in pain. The pain was in her shoulder, her neck and the left knee. He said he took her to Dr Amor the next morning. Since that time he said (trans. p154):
She tried very hard to keep up her commitments. Monica is a person who unless she is doing something positive she doesn't feel that she has been able to contribute and she very much tries hard to keep up her end of the bargain. . . . She tried to do everything she was doing before and they were just sort of eliminated when it became too painful and the suffering was too much. It got to the stage where she just couldn't do them.

Mr Phillips said since the total knee replacement the movement in Mrs Phillips' knee is much better. He added (trans. p159) "the lack of pain on her face after the knee was done was just unbelievable." Mr Phillips said that although Mrs Phillips does have good days now, she does not do any gardening because she has realised she can not do it. He described how she overdoes things and then has to go to bed for a day or more. He said that he had encouraged her to stop that sort of activity (trans. p164) "because when she's in bed we've got to get our own tea."
We found Mr and Mrs Phillips to be genuine people. We accept their evidence as truthful. We find that Mrs Phillips had made a good recovery from her knee problems between 1982 and 1993 and that the car accident in September 1993 did aggravate her pre-existing knee injury. We see no inconsistency between Mrs Phillips' presentation in regard to her knee on the video and her evidence. She said her knee "had improved out of sight" since the knee replacement. Her husband confirmed that. That is consistent with her not limping when seen on the video. Further Mr Schutz reported in his report of 24 September 1999 (R2) that Mrs Phillips had told him she had recovered well since the knee replacement and could now walk and had lost 14kg as a result. That indicates a significant improvement of the knee.
We find that Mrs Phillips did suffer injury to her knee with pain and swelling in the car accident in September 1993, as noted by Dr Guymer on 13 September 1993 and by Dr Amor on 14 September 1993. We find that from that time on she had increased pain in that joint and the pre-existing degenerative condition of the knee was accelerated. We find that the knee had been stable since recovery from the last scar stabilization surgery in 1982 and had not substantially restricted Mrs Phillips' social or recreational activities or her involvement in the work of the farm. We find that from September 1993 she had increased pain in the knee and the degenerative condition of the knee was accelerated. We find after the car accident in September 1993 Mrs Phillips' left knee was painful and she found she had to restrict her activities. As the pain became worse she complained about the condition to Dr Amor, to Mr Coates and to Mr Shumack.
As described by Mr Shumack in his report of 11 June 1996 a comparison of X-rays taken in September 1993 and May 1996 shows significant degeneration. Mr Shumack commented that in September 1993 the X-ray showed only early medial compartment osteophytes, but the later X-ray of May 1996 showed a marked degree of degenerative arthritis in the medial and patella femoral compartments. On the basis of that demonstrated change, Mr Shumack stated that it was his opinion "that exacerbation of the pre-existing condition has been considerable and must be regarded as the principal cause of her accelerated need for surgery." We accept that opinion as correct.
We find that the injury sustained in the car accident contributed to the need for the arthroscopy on 24 October 1996 and for total knee replacement on 23 March 1999. Mr Shumack and Mr Coates both expressed the view that the knee condition was further along the degenerative pathway than it would have been had it not been for the incident in September 1993. That was also the opinion of Mr Davie. We accept that opinion and find accordingly.
We find, as stated by Mr Shumack in his report of 20 September 1996 (T133 p224) and by Mr Davie in his report of 12 April 2000, that exacerbation of the pre-existing condition by the car accident was considerable and was a significant contributing cause to the need for total knee replacement performed on 23 March 1999.
The reviewable decision of 22 October 1998 which revoked liability for total knee replacement will be set aside. The effect will be to leave unaffected the determination of 13 October 1998 which provided that Comcare was liable to pay for all reasonable medical treatment for the accepted compensable injuries, including the costs of total knee replacement surgery, which surgery was performed by Mr Critchley on 23 March 1999.
the neck and right arm injury
Mrs Phillips in her evidence said that the neck and right arm injuries are now more troublesome than the minor residual problems she has with her left knee. Unfortunately the surgical procedures she has undergone in an attempt to treat those injuries have not been as successful as the left knee replacement surgery. Mrs Phillips said that she still has severe headaches and neck and right arm pain.
Mrs Phillips was totally incapacitated for work from 13 September 1993. She was referred to the Commonwealth Rehabilitation Service ("CRS") on 25 October 1993 by Mr Milenkovic, Regional Manager of the Shepparton Branch of DEET.
A return to work plan was prepared for Mrs Phillips. It anticipated that she would return to work on 13 December 1993 and would have returned to her normal duties by 10 January 1994. Unfortunately that proved to be far too optimistic. Mrs Phillips did return to work four hours a day three days a week, but she did not increase her hours as proposed. On 10 February 1994 she was seen by Dr Kinloch a specialist in rehabilitation medicine. She reported significant improvement over the last three months. However he reported to Dr Amor that she complained of neck pain with headaches and right arm numbness and weakness post activity and trouble sleeping. Dr Kinloch thought that Mrs Phillips had injured the right C5/6 facet joint. He advised in his report of 10 February 1994 (T23) that he believed that Mrs Phillips would be fully recovered in three months time, but that if not, she would benefit from facet joint injection.
One factor which Mrs Phillips reported to her workplace and to her doctors was that she felt that the half hour drive from her home at Katunga to the office at Shepparton was difficult. She was wearing a soft collar for driving and by June 1994 she was working four days per week from 9.00 a.m. to 4.00 p.m.
By August 1994 Mrs Phillips was having such difficulty with pain that she underwent a nerve block procedure arranged by Mr Kinloch at Epworth Hospital. That gave her a period of pain relief and Mrs Phillips increased her hours of work to full-time, four days a week. Unfortunately a second nerve block procedure which took place on 6 October 1994 was unsuccessful and led to a flare-up. Mr Kinloch advised that he thought it would be better if Mrs Phillips stopped work for some time and tried to immobilise her neck in a collar to see whether that would assist nature in the healing process.
On 30 December 1994 Mr Coates wrote to Comcare saying that plain X-rays had not revealed any obvious abnormality in the neck, but it was his impression that Mrs Phillips had an injury to a mid or lower cervical spine intervertebral disc. He asked for Comcare to cover the cost of an MRI. An MRI was performed on 9 February 1995 (T51 p110), it reported, in part:
All cervical discs from C2 to C7 show altered signal consistent with multi level disc degeneration.
Slight disc height narrowing is also noted at C4/5.
There is no sign of a cervical disc prolapse.
The cervical central canal and exits are adequate and there is no focal impingement on the spinal cord or nerve root.
There is no evidence of a para-spinal mass.
CONCLUSION:
There is evidence of multi-level cervical disc degeneration from C2 to C7.
On 28 February 1995 Mr Coates wrote to Dr Amor about that MRI (T54 p115):
I have little doubt that she had a significant injury to her neck as a result of the motor vehicle accident and this is what is responsible for her symptoms. Unfortunately apart from symptom control I do not think there is any specific therapy that I have to offer. I think that a graduated return to work and education of Mrs Phillips regarding her problem is about all that can be done.
On 28 February 1995 Mr Coates also wrote to Dr Amor and DEET (T55 and T57) suggesting that the changes seen on X-ray in the cervical spine may well be due to the motor vehicle accident. He wrote that he thought that Mrs Phillips would no longer be able to work full-time and that she should attempt a permanent part-time position for one year working just two hours in the morning and then after a break, two hours in the afternoon.
In March 1995 Mrs Phillips attempted to return to work four hours per day, two days per week. The CRS occupational therapist reported that Mr and Mrs Phillips were attempting to sell their farm so that they could move closer to her work.
By August 1995 Mrs Phillips was having difficulty attending work two days a week. She was reporting nerve compression symptoms in her hand and arm and increasing problems with driving. Some difficulty had arisen as to the provision of household assistance. Dr Amor, and the occupational therapist who had been involved with Mrs Phillips' case at the CRS, both wrote in support of her need of ongoing assistance of six hours a week.
It appears from a work assessment form (T91 p165) that by March 1996 Mrs Phillips was attempting to work three full days a week, but was only managing two days a week. In May 1996 Mrs Phillips was considering whether to apply for an invalidity retirement. She decided to see Mr Kinloch again in order to be assessed for the Bethesda Pain Management Clinic. On 4 June 1996 Mr Kinloch wrote to Dr Amor (T105 pp187-188). His report starts "I reviewed your patient on 31 May 1996. I had not seen her since December 1994. She is in a mess." He recommended referral to a neurosurgeon and suggested Mr Wallace.
In evidence Mr Kinloch explained that the third time he saw Mrs Phillips, on 31 May 1996, the signs were worse than when he had first seen her in that she was not only tender in the same area she had been tender in before, but there was some restriction of right shoulder movement and some diminution of grip strength. With regard to the suggestion that the car accident had not caused Mrs Phillips' neck and arm problems but had simply aggravated underlying disc degeneration Mr Kinloch said (trans. pp140-141):
I don't give any credence to this argument that people who in fact have no evidence of any injury or restriction in their activity somehow are supposed to have aggravated something that was there and it should have all gone away in six weeks. And certainly, with this lady, I never regarded her as anything other than someone who was pushing herself far harder than her body was capable of taking and she seemed to have very much a bull at a gate philosophy towards life and I spent a fair bit of time with her, trying to persuade her that if she kept on trying to push through all the time, that she would get worse rather than better.

When Mr Lenczner suggested that Mrs Phillips may have exaggerated her problems, Mr Kinloch said at page 147:

I don't believe that she, at any stage in my association with her, has done anything other than try to minimise her presentation of how difficult things are in her life, rather than to maximise or exaggerate her symptoms to me.

As set out earlier in relation to the knee, Mrs Phillips saw Mr Shumack in May 1996. He was of the view that the current work restrictions of working two days a week were appropriate, although he suggested that perhaps, the addition of a further ½ day a week between the two full days would be worth a trial.
Mr Shumack's report led to a cessation by Comcare on 2 September 1996 of payment for household assistance and also to a cessation of regular chiropractic and massage treatment (T128 p218). On 6 November 1996 that decision was varied favourably (T13 p32 – incorrectly dated).
Mrs Phillips continued to be troubled by the neck and right arm symptoms. She had been seeing Mr Wallace, the neurosurgeon suggested by Mr Kinloch, since July 1996. Mr Wallace wrote asking approval for Mrs Phillips to have exploration of the right thoracic outlet because of her incapacitating right arm pain. Approval was given for that procedure and it took place on 8 January 1997. An attempt to return to work six hours a day in April 1997 was unsuccessful.
On 2 September 1997 Mr Wallace wrote a report to Comcare (T190 pp302-303). He set out the history of Mrs Phillips' condition and the surgery for thoracic outlet syndrome. He concluded that the diagnosis was "soft tissue injury of the cervical spine. Post traumatic thoracic outlet syndrome", and he said he thought Mrs Phillips was likely to be permanently more prone than an average individual to neck and arm pain, but he expected some improvement. He recommended that Mrs Phillips cease work altogether in an effort to get rid of her ongoing problems.
On 28 October 1997 Mrs Phillips was assessed by Dr Webster of Health Services Australia for an invalidity retirement (T200 pp313-317). He did not recommend an invalidity retirement. He noted the thoracic outlet surgery in January 1997 and said that it was still possible that she could continue to have improvement as a result of that surgery. He said that she was unfit for all employment at the time he saw her, but he thought it likely that she would have improvement with a pain management program and a further period of recuperation (T200 p317).
The thoracic outlet syndrome surgery proved to be of limited benefit only. Mrs Phillips said it relieved the pain in her hand, but did not help the pain in her right arm or the headaches. In November 1997 Dr Amor referred Mrs Phillips to Dr Todhunter a specialist in pain management. He wrote a report dated 18 November 1997 (T202 pp319-320). He recommended a facet joint denervation at the C3-C6 level via radio frequency lesioning and admission to a pain management program. Dr Todhunter also suggested substituting a dose of slow release morphine for the number of short acting pain relief tablets Mrs Phillips was then taking. Mr Todhunter undertook the facet joint denervation on 14 January 1998, and also performed a right C2 nerve root block with local anaesthetic and Depo steroid (T211 p332). These measures achieved some improvement.
On 17 February 1998 Dr Langenegger of the Wodonga Regional Health Service Pain Management Program wrote to Comcare (T214 p336) saying that it was considered that Mrs Phillips would benefit from a two week program. Mrs Phillips did attend that program. The discharge report at (T215) does not seem to indicate that any great improvement was achieved.
On 31 August 1998 Mrs Phillips was examined by Dr Smith a consultant surgeon from Med-Law Associates at the request of Comcare. He provided a six page report (T224) setting out a detailed pre and post motor vehicle accident history and a summary of investigations. He concluded that Mrs Phillips definitely suffered from significant degenerative disease of the left knee joint which started she said when she slipped in the shower when nursing. He said he had distinct reservations concerning all Mrs Phillips' other symptoms. He repeatedly referred to the fact that the police had not been called to the car accident and said that because of this, it was his impression, that it must have been rather minor. He suggested a "total body bone scan" and also suggested that "it would also be of interest to see the claimant when away from the "tension" of a medical situation."
In September 1998 Mr Todhunter wrote to Comcare seeking authority to repeat the right sided cervical facet joint denervation at the C4-C6 levels in view of increasing right neck and shoulder pain in recent weeks. He suggested that there may have been reinnervation of the facet joints that were denervated in January 1998 (T225 p362).
On 22 September 1998 a Comcare delegate wrote to Mrs Phillips telling her that on the basis of Dr Smith's report they were proposing to decide that compensation should no longer be payable. She was invited to send medical information and advised that if no information was sent a determination to cease liability could be made. A decision purporting to be a reviewable decision was made on 22 October 1998. It stated that it ceased liability on Mrs Phillips' claim as proposed in the letter of 22 September 1998, but, as is now agreed, was a primary decision.
mrs phillips' evidence
Mrs Phillips said that the difficulty with her return to work programs was mainly the driving, because she found the motion of driving and the bumps on the road made her very sick and she had trouble holding the car steering wheel. She said although she only performed lighter duties at work, she was not able to cope well with that work.
In regard to her ability at the time of the hearing to perform tasks at home, Mrs Phillips said she likes to try some things such as getting the washing off the line or trying to fold the washing or getting a meal ready. She said she cannot vacuum, she can only hang out light things, she does no ironing because it plays up with her neck too much, she can cook and she finds, if she tries gardening, that it makes her neck very sore and she has to lie down for half a day to recuperate. She said she can walk down to the post box at the end of their farm driveway, on the flat. She said she has difficulty going up and down stairs and she said she can drive but cannot turn right around or quickly turn back to the left.
Mrs Phillips said that the treatment that she had most recently was facet joint denervation performed by Mr Todhunter at Wodonga Hospital. She said she had had it done twice and the last time, which was in about August 1999, had been very good and was just starting to wear off a little bit when she gave evidence in July 2000.
Mrs Phillips said that she had headaches almost all the time. She said there was a constant pain in the back of her head and on really bad days across the front of her head. Mrs Phillips said she also had pain coming down her right shoulder, down her neck and into her right arm and hand.
Mrs Phillips was cross-examined about the reasons why she could not maintain the hours in her graduated return to work program. She agreed that people were helpful at work and that she was free to change her position whenever she chose. She explained that she found the driving to work and back very difficult and said that she had been taking heavy medication to try to enable herself to perform the work. She said sometimes she would feel sick before she even got to work and would have to lie down and have half an hour of rest before she started work. She said even with the breaks, she would often feel sick during the day, and then she still had to drive home. Sometimes she would stop on the side of the road for a few minutes, or even for an hour, before she could continue the drive home. By the time she got home all she could do was go to bed. Mrs Phillips said the situation has improved now because she does not have to go to work and so she is not under pressure.
Mr Lenczner told Mrs Phillips that he had noticed that she had held her head almost without moving it from side to side. He asked whether he was right in understanding that she did not have much movement either way. She replied (trans. p75):
I do have movement . . . yesterday we travelled and I was very sore yesterday, and tomorrow because we will be travelling home again I'll be very sore tomorrow and I didn't have a chance to actually recover from the travel yesterday that's why I was very sore and I was in a lot of pain and its just what happens.

Mrs Phillips said she did not have a normal full range of movement but she did tend to protect the injury and was cautious about not moving too quickly because that would cause sharp pain. She said she had never had a problem before the accident.

Mr Lenczner asked Mrs Phillips about going shopping. She said she shopped in Numurkah and used a trolley. He asked whether she carried things and she said she tries not to carry heavy things in her right hand because it causes problems. She added that she does carry lighter things in her right hand if she can. When asked to give an example of things that are not too heavy, she suggested a Weeties packet or biscuits.

Mr Lenczner asked Mrs Phillips questions about her driving capacity. She said that her capacity to drive varies from day-to-day. She said that she has a problem with her arm, neck and hand when she is driving and her hand goes numb if she tries to hold the steering wheel for too long a time. She had difficulty estimating the time which creates the problem. On the basis that the drive to work was approximately 40 minutes, Mr Lenczner suggested to Mrs Phillips that if 40 minutes is a problem, what about 20 minutes, would that be a problem? As became apparent later on in the cross-examination, the reason why Mr Lenczner was asking those questions was because there was a video of Mrs Phillips driving a car to do her shopping at Numurkah. She said that she drives to Numurkah once a week at least. It is only seven kilometres or a five minutes drive from her home.
Mr Lenczner phrased the questions to Mrs Phillips not in terms of doing shopping, but in terms of whether she could do two hours work if the work was a 10 minute drive away. That seemed to the Tribunal to be irrelevant as there was never any offer of work by the Commonwealth, except at Shepparton, and the evidence was that Mrs Phillips has not resigned or been terminated, although her job no longer exists. The definition of "suitable employment" applicable to Mrs Phillips is that in paragraph (a) of the definition in s 4(1) of the Act.
In the video shown to the Tribunal Mrs Phillips is shopping at Numurkah, five minutes drive from her home. The investigators in their report advised that they commenced an investigation and watched for 15 days and filmed seven minutes of video footage of the claimant. They wrote (R8):
During this period we conducted 283.75 hours of investigations over the 15-day period between two operatives. We have taken approximately seven (7) minutes of video footage of the claimant.
Overall, we observed the claimant to be inactive. The claimant was sighted on only one day out of the entire fifteen (15) day investigation period. On this occasion, the complainant did not use any visible medical support aide whilst under observation nor did she appear to be in any visible pain or discomfort.
The claimant did not involve herself in any strenuous activities or actions that we could observe. However on the one occasion we did observe the claimant she exited a local grocery store carrying a white plastic shopping bag and placed this into her vehicle. The claimant then walked across the road to a newsagent and returned carrying a large newspaper and placed this into her vehicle. (Video Obtained) The claimant did not appear to be[in] any visible pain or discomfort and walked quite freely and unrestricted.
The claimant was then observed to drive her vehicle to a local Mobil service station and fill her vehicle up with fuel. She remained standing whilst holding the fuel nozzle as it was in the vehicle's petrol filler. Once the required amount of fuel was obtained, the claimant then returned the nozzle back to the dispensing bowser, replaced the fuel cap and closed the fuel cover. The claimant then proceeded to wash and clean all the windows of her vehicle using a window washer brush. During this time she used both her hands/arms at various times. (Video Obtained) The claimant did not appear to be any visible pain or discomfort.
Once the claimant completed this, she was observed to walk into the payment/shop area. The claimant was then observed exiting the shop area carrying a large black plastic oil container (possible 4-5 litres) in her right hand. As the claimant approached the rear of her vehicle she placed the oil container into her left hand and opened the boot with her right hand.
The video shows Mrs Phillips walking well in the shopping centre. She has no limp. She is swinging her right arm in one scene. Later she clutches a newspaper to her chest with her right arm. She then opens the front and rear doors of the car on the driver's side. She puts the newspaper in the back seat and gets in the car. She drives out of her parking spot. The next scene shows her filling her car with petrol. She holds the petrol nozzle in place with her right hand and then puts the hose back in position also with her right hand. She then picks up the window washer brush or blade with her left hand, and transfers it to the right hand to start cleaning the rear window. When she needs the application of force she uses her left hand as well. Mrs Phillips carries a small oil container to her car in her right hand. When Mrs Phillips reaches the car she transfers it to her left hand and uses her right hand to unlock the boot. The boot lid seems to spring up without requiring force. Mrs Phillips puts the can of oil into the boot with her left hand and uses her right hand to close the boot lid. The boot lid is not very high and does not seem to require much force to close it.
Mrs Phillips was questioned about the oil container she was carrying in her right hand. She said it would have been a three litre can of oil and she did not know what it weighed. She said that she used both hands in order to place the nozzle from the petrol bowser into the petrol tank outlet. She said she did not have any problem using her right hand to wipe the back window of the car, however as stated above the Tribunal noticed that when she applied pressure she held the washer with both hands. Mrs Phillips said that she can open the boot of her car with her right hand. She explained that if she takes tablets she can cope with those sort of things.
medical evidence
Dr Amor said that he had first seen Mrs Phillips as a patient on 23 May 1990 and that up until 13 September 1993 she did not make any complaints of neck, right arm or left knee pain. Dr Amor said that he referred Mrs Phillips to Mr Coates, an orthopaedic surgeon, in December 1993 and to Dr Kinloch for pain management in 1994, because of her neck symptoms and headache. Both those specialists had recommended no active treatment in the hope that symptoms would eventually diminish. The first invasive treatment was a facet joint injection at Epworth, arranged by Dr Kinloch in August or September 1994. Dr Amor said it helped initially but the effect wore off. Dr Amor said that there was some improvement in the right arm pain after Mr Wallace did the right thoracic outlet exploration in January 1997, but he did not think that it had lasted for long.
Dr Amor said that he still sees Mrs Phillips. She has persisting headaches and ongoing right arm pain and neck pain. He said that as he knows that she did not have the symptoms before the car accident, he can only presume that it was responsible in large part for the pain.
As stated in paragraph 62 Mr Coates arranged for an MRI of the cervical spine which was performed on 9 February 1995. The radiologist's report stated "cervical discs from C2-C7 show altered signal consistent with multi level disc degeneration slight disc height narrowing is also noted at C4/5" (T51 p110). Mr Lenczner put to Mr Coates that Mr Nye, a neurosurgeon said that he did not agree that the MRI showed multi level disc degeneration on the basis of loss of signal at the C2-C7 levels.
Mr Lenczner invited Mr Coates to comment on Mr Nye's views. He said (trans. p192):
A disc which is abnormal, and whether abnormal is due to ageing, changes or if – this is a moot point as it hasn't been completely resolved, but certainly just about everybody who is certainly her age will have an abnormality on an MRI and I suspect that Mr Nye is saying is that abnormality doesn't necessarily equal pathology.
Mr Nye gave evidence. He saw Mrs Phillips at the request of the respondent's solicitor on 13 September 1999. Before giving evidence he had seen the video of Mrs Phillips taken in May 2000. He said it showed a different presentation to that which he had seen. He said that raised a question as to the validity of the earlier presentation to him, or alternatively, recovery had occurred in the interval. He said the contrast in performance would not be consistent with a good day/bad day phenomenon, it was too great. He said if it was due to the taking of medication, he could only say that the medication is extremely effective. He was not asked about the distance Mrs Phillips had travelled on the day she saw him and the possible effect of that travel on her presentation.
Mr Nye also said that he had considerable doubt that the thoracic outlet syndrome surgery was appropriate. He had three reasons why he thought it had not been a correct diagnosis. First, he said thoracic outlet syndrome is not normally seen after the type of injury Mrs Phillips sustained. Secondly, the clinical features were not suggestive of the diagnosis. Nor did the radiological investigation indicate any pre-disposition to that condition. Thirdly, the nerve conduction study was negative in regard to thoracic outlet syndrome.
In cross-examination Mr Nye said that thoracic outlet syndrome is a condition for which a person has a congenital pre-disposition (trans. p206) "and then some lesion involving the arm and neck may exacerbate the condition but not a simple, as I understand it, flexion extension injury to the neck which this applicant in all probability did suffer." He did not offer any explanation as to why Mrs Phillips had some partial improvement in symptoms after the thoracic outlet surgery. He said that he thought that Mrs Phillips was suffering from a "chronic pain syndrome" with long standing and entrenched symptoms and he gave an unfavourable prognosis. Mr Nye said that in using the phrase "chronic pain syndrome", he was saying that he did not believe that the continuing symptoms have an organic basis or are related to the accepted soft tissue injury to the neck which accompanied the accident.
The Tribunal pointed out that although Mr Nye said that the presentation he saw on video was inconsistent with the history of continuing symptoms which Mrs Phillips had given to him, he in fact had very little history of continuing symptoms either in his report (R1) or in his notes. All he had in his report was at the bottom of page 2 and the top of page 3 where he had written that Mrs Phillips reported that the thoracic outlet surgery "had relieved some pain and pins and needles affecting the index finger of the right hand and grip strength but difficulty holding objects is still experienced." Mr Nye also referred to Mrs Phillips describing continuing neck pain and headache on a daily basis for which strong analgesic is taken, and mentioning pain in the right arm and some pins and needles. He did not say that Mrs Phillips had told him that she could not use her right arm although he said "a global weakness affecting the right upper limb, associated with give way phenomena" was evident during the examination. Mr Nye reported some minor restriction of neck movement on examination.
The Tribunal does not see any inconsistency between the symptoms and findings noted by Mr Nye and what is seen on the video. We regard it as significant that the video seems to be of the only day on which Mrs Phillips left her home while she was being observed for 15 days. The investigators reported that Mrs Phillips may also have been a passenger in a vehicle on one other day but they could not clearly identify her.
Mr Lenczner referred Mr Nye to his measurement of restriction of range of movement of the neck. He looked at page 3 of his report and said (trans. p214):
The restrictions that I have recorded there are minor, they are not gross as compared to normal ranges and the video showed no apparent restriction.
Mr Nye agreed with Mr Carey that it is not possible to be accurate as to the degrees of restriction of movement from watching a video. We consider that the video is consistent with the measurements recorded in Mr Nye's rooms, which indicated minor restrictions only.
Mr Nye's opinion that, contrary to the opinion of the reporting radiologist, there was no multi-level disc degeneration shown on cervical spine MRI was not shared by Mr Coates or Mr Wallace. Nor was it shared by Mr Schutz, who was also called by the respondent. He accepted that the X-rays and MRI scan show multi-level degeneration.
When Mr Wallace gave evidence he was told of Mr Nye's challenge to his diagnosis of thoracic outlet syndrome. He said (at trans. p233):

That he had seen many hundreds of cases where trauma of the neck of the sort experienced in this type of accident has brought on the symptoms of thoracic outlet syndrome. He explained that the condition is due to compression of nerves and blood vessels in the neck after they have left the spinal canal and are travelling across from neck to arm.
He said the history of pain and numbness radiating down the inner aspect of the arm to the inner fingers first, the fifth, fourth and third fingers is a very typical history of a patient with thoracic outlet syndrome. He explained that the nerve that is most commonly affected and compressed and rendered symptomatic is the eighth cervical nerve or its conjoint nerve when it has joined the first thoracic nerve to form the lower trunk of the brachial plexus. Pressure on the lower trunk or the C8 nerve root classically produces pain and numbness down that distribution and into the hand.

Mr Wallace said the first thought after those symptoms are reported following a neck injury would be a cervical disc injury. But, as there was no cervical disc injury that would explain injury or compression of the eighth cervical nerve, thoracic outlet syndrome was another possible diagnosis. He said a normal MRI scan is expected with thoracic outlet syndrome because the nerve compression occurs after the nerve has left the spinal canal. He said that the nerve conduction studies were done by him after the operation, not before surgery. They were performed to exclude other causes for the ongoing symptoms and not to diagnose thoracic outlet syndrome. He said electrical studies for thoracic outlet syndrome are at best highly unreliable. Because the procedure involves inserting needles for a distance of three or four inches into the root of the neck [sic] (trans. p234), he would not have it done to himself, and therefore does not put a patient through it. He said the nerve conduction study is more trauma for the patient than the operation for the disorder. In view of its lack of reliability most surgeons working in the area do not put patients through it. Mr Wallace said that the nerve conduction study referred to in his report is a different nerve conduction study and was done after the surgery to exclude carpal tunnel syndrome. He said the EMG for carpal tunnel syndrome is exceedingly accurate and very safe and it does not involve putting needles above the collar bone, it uses electrodes on the fingers and the base of the thumb.
Mr Wallace explained the phenomenon which causes thoracic outlet syndrome which is "a little parrot's beak of bone" that is attached to the transverse process of the seventh cervical vertebra in an equivalent position to that of a rib attaching to a thoracic vertebra." He said, "people who have that little parrot's beak of bone have a fibrous cord attached to it down a deep hole four or five inches deep." He said this band feels to the finger like the sharp edge of a butter knife. It is a firm tough fibrous cord and when it presses into the under surface of a nerve trunk it causes major trauma. He said he envisages that what happens at the time of an accident like that in which Mrs Phillips was involved is, (trans. p235) "at the time of being thrown around the nerve trunk becomes impinged against this fibrous cord and even though it has been there from birth and even though most patients with the problem don't know they have got [it], after trauma and sometimes fairly minor trauma symptoms can occur and then persist."
Mr Wallace said a complaint of numbness extending down the hand into the ulna half of the palm, or pins and needles, or pain, could be consistent with the condition of thoracic outlet syndrome. Mr Wallace said that the pain is principally pain of the C8 nerve distribution, but there can also be a more diffuse pain that comes from the ischaemia or the kinking of the artery that occurs when the arm is used in the elevated or outstretched position, so that you can actually not have enough blood going to the arm when it is raised.
When Mr Wallace was asked to comment on Dr Todhunter's reported treatment of a nerve block to the C2 region and denervation of the right cervical facet joints at C4-C6, he said that was treatment for different conditions to that which he was treating. He said that the C2 nerve root block would be for headache and the facet joint denervations at C4-C6 would be a non-specific treatment to try to relieve neck pain and soreness and possibly arm pain. But he said it did not impinge in any way on the diagnosis of thoracic outlet syndrome. "They are two different teams working at two different problems" (trans. p242). Mr Wallace explained that if you have facet joint arthritis in the neck, in a soft tissue injury the joint capsules get damaged and the nerves supplying those joints also go down the arm. He said that pain coming into those nerves from arthritic facet joints is often felt down the arm. It is a referred pain where the brain misinterprets the source of origin of the pain. He said that injecting facet joints in the neck can relieve arm pain.
Mr Wallace acknowledged that the thoracic outlet syndrome surgery had not led to relief of pain. He said it does not always do so and there can be multiple reasons for that. One can be that the nerve is actually scarred, which leaves the patient with pain and discomfort for much longer and sometimes permanently, though rarely so. Secondly, he said you can actually miss the fibrous band that is causing the trouble. More commonly he said, where you have a busy mother and children to look after, shopping to do, washing to do, no one else to do it and particularly where the people are involved in employment that is vital to a household, you barely get the patient out of hospital and they are back doing things a month or two too early to get an optimal result.
Mr Lenczner put to Mr Wallace that Mrs Phillips may have simply been exaggerating her complaint. Mr Wallace said that you always have to consider that. But he explained that patients do not know their anatomy and when they come in consistently complaining of a pain that is in a particular nerve distribution it is hard to believe that they are making it up. He added that he never had that impression with Mrs Phillips. He said that he had last seen her on 7 August 1999, having seen her multiple times after the surgery. Although she had noticed improvement she was far from symptom free. Mr Wallace was asked whether she had given him the impression that she was not able to cope with performing physical activity which involved the use of the arms. He replied, "I think the impression that I got was that she was doing things but paying for it . . . still in pain but still being as active as she could" (trans. p244). He said that his impression of Mrs Phillips was that even though things hurt, they had to be done and she would do them.
Prior to showing Mr Wallace the video, Mr Lenczner asked him about the circumstances in which the symptoms of thoracic outlet syndrome are aggravated. Mr Wallace said that the most common complaint is of using the arms above the head. When Mr Lenczner asked whether there was a problem with outstretching an arm about shoulder level, he said that external rotation is a component of the problem and people could get by for longer with the arms out front than above the head.
After Mr Wallace had seen the video, Mr Lenczner asked him to comment on the washing of the rear window of the car, which was at about shoulder level. Mr Wallace said "it is difficult to know – I mean it only took three or four swipes. I mean I would almost expect a patient to be able to do that post operatively – I wouldn't want them to but I mean it's a very short lived activity." Mr Lenczner suggested that Mrs Phillips could have used the left arm as well, if there were a particular problem about the right arm. The Tribunal pointed out Mrs Phillips had done that on the back window to rub a spot where she presumably needed more pressure. Mr Wallace said he would not be able to draw any real conclusion from such a short lived activity as cleaning the windows of one car. He said that opening the boot was likewise just a quick "one off" and most people can do that. Mr Nye said it is sustained activity above the head that is the problem. In the Tribunal's view that was not demonstrated on the video. Further the boot lid appeared to be spring assisted. Mrs Phillips guided it up but let go before it was fully raised.

Mr Wallace said that he did not see Mrs Phillips doing anything that he would describe as extremely or particularly vigorous in the video. He said that he could not tell from watching whether the activity was vigorous or not. It depends on the pressure being applied and the extent of dirt on the windscreen. He said it was short lived and only the top stroke would be worrying if she were in pain.
After Mr Wallace gave evidence, Mr Lenczner suggested that Mr Carey should have put to Mr Nye the fact that, as Mr Wallace said in evidence, the EMG studies were not done prior to the thoracic outlet surgery but were done subsequently to exclude carpal tunnel syndrome. There was no basis for Mr Lenczner's suggestion. As Mr Wallace pointed out in evidence that is clearly stated in his report (A3) of 11 August 1999 on page 2 paragraph 3:
Post-operatively her condition was reviewed on 10.02.97, 14.04.97, 18.07.97, 20.10.97, 06.03.98 and 24.08.98. During her convalescence, in view of her continuing pain and sensory disturbance in her arm, EMG studies were done to exclude an associated abnormality, such as carpal tunnel syndrome, but the test was negative.

Mr Wallace commented "I am sure Mr Nye knows the difference between those tests."

Mr Lenczner suggested that Mr Nye should be recalled to clarify that he was wrong in the assumption he made that the negative nerve conduction study was apparently undergone prior to surgery. It was not quite clear whether Mr Nye had read Mr Wallace's report, but clearly Mr Lenczner had read it. If he felt the matter should have been clarified with Mr Nye, he had the opportunity to do so in re-examination. We saw no reason for Mr Nye to be recalled.
Mr Schutz in his report (R2 p9) wrote that the problems of the neck and arm were related to the motor vehicle accident. Mr Schutz said that the problems of the cervical spine meant that Mrs Phillips was not fit to work as a clerical person. He wrote, "She explained that the Commonwealth Employment Services efforts have now ceased. She does not know what she can do at present." He concluded "Mrs Phillips might be able to work in a limited part-time capacity. However the probability is that she is totally incapacitated."
After he had seen the video Mr Schutz said that he thought Mrs Phillips (trans. p219) "conducted herself in a very vigorous fashion". He said that he saw her flex her neck by about 40 degrees and he saw her maintain her neck fully rotated to her right side for quite a long period of time, particularly when filling up her car at the service station. He said he did not think she had a restriction of movement of the neck or significant symptoms, because, if she did, he did not think she could maintain the rotation movement that he saw. He also said she was very vigorous in using her right arm to fill the car up with petrol and fairly vigorous in scrubbing the windows of her car. He estimated that she used her right arm to about 130 degrees to close the boot of her car.
The Tribunal does not agree with Mr Schutz' description of the video. It does not show what we would describe as "vigorous" let alone "very vigorous" use of the right arm to fill the car with petrol or to wipe the car windows. Mrs Phillips did use her left hand to assist with wiping the rear window and she did not raise her right arm above 80% of shoulder flexion to close the boot of the car.
Mr Schutz said that he would expect Mrs Phillips to show more caution with her movements if this was a good day and the other days that she had not left the house while under investigation had been less good days.
Although in cross-examination Mr Schutz said that the film was different from the description Mrs Phillips had given him, he had assessed the restriction of range of impairment of her neck as only 5%. Further he had reported that because of the improvement in her knee Mrs Phillips was able to walk and as a result of walking had lost 14 kilograms. Although he had a history that she could only walk about 200 metres which she did twice a day, he did not suggest to her that two walks of that distance would not account for a loss of weight of 14 kilograms in the six months since the knee surgery.
Mr Lenczner also asked Mr Phillips about the video. He asked him whether he would be surprised to know that there is a video of Mrs Phillips cleaning the windscreen of the car using her right arm. Mr Phillips replied (trans. p167):
No. No, she's – like I said, she's very stubborn and she pushes herself to do things that she shouldn't, and she gets frustrated when they are not done and she'll have a go at them, to do them, and that doesn't surprise me at all. What I do see is the suffering, because I'm in the same bed as her and she can be asleep in bed and I'll just move the bed fractionally and she'll groan in bed with just that sort of movement. So I know Monica probably better than anybody, and she's very stubborn, and we've had some blues over her stubbornness, what she shouldn't do and should do, and she suffers for it very much. It doesn't surprise me that she's done that. It doesn't surprise me that she's done other things too that she shouldn't have.

conclusion

It is puzzling and disappointing that Mrs Phillips' injury to her neck and right arm and her headaches have continued for so long, particularly as she had reported significant improvement when she first saw Mr Kinloch in February 1994. Unfortunately that improvement did not continue and all the medical treatment which Mrs Phillips underwent, including a number of invasive treatments has not made any very significant difference to her symptoms.
A number of Mrs Phillips' treating doctors gave evidence. We were impressed by Dr Amor, Mr Coates, Mr Kinloch and Mr Wallace. They all considered Mrs Phillips to be genuine, although as early as December 1994 Mr Coates had expressed some concern about the level of symptoms (T39 p93). Dr Amor was quite definite that Mrs Phillips' presentation has changed significantly since the car accident. He said that she made no complaints of knee, arm or neck pain or of headaches in the three years she was his patient before September 1993. Mr Coates, Mr Kinloch and Mr Wallace all found Mrs Phillips to be ready to undertake any treatment which might offer her relief from her pain and allow her to resume the active lifestyle she prefers. A number of the medical witnesses commented on Mrs Phillips' reluctance to give up activities she had previously performed.
We accept Mr and Mrs Phillips as honest witnesses. We find that Mrs Phillips enjoyed her work and that she would have much preferred to continue working if her health allowed her to travel to work and work the hours expected of her in the various graduated return to work programs which were adopted. We find that the effect on her injuries of the travel to work was a significant factor in causing Mrs Phillips' incapacity for work.
We reject Mr Nye's opinions and evidence. It seems to us that he was too ready to discount the history given to him by Mrs Phillips and the views of the treating specialists who had seen her over a number of years as well as the opinion of the radiologist reporting on the MRI scan of 9 February 1995 (T51 p110). Mr Nye also seemed very ready to find an inconsistency demonstrated on the video with Mrs Phillips' presentation to him. As discussed in paragraphs 93-96 above, his report did not contain a history of restriction of the use of the right arm such as to prevent Mrs Phillips using her right arm for the activities seen on the video.
Similarly we had some concerns about Mr Schutz's evidence. He seemed to us to exaggerate the vigour and the range of the movements demonstrated by Mrs Phillips on the video and to place too much emphasis on an alleged inconsistency with the presentation to him. According to his report (R2) the current position after the thoracic outlet surgery was of an improvement of about 30% in pain and discomfort in the neck and right shoulder, but continuing significant trouble with her right arm and neck including pins and needles and pain and headache. Mrs Phillips did not tell Mr Schutz that she was unable to use her right arm and according to his report she did not demonstrate a significantly reduced range of movement of the shoulder and only demonstrated a 5% restriction of movement of the cervical spine. Mr Schutz in his report said Mrs Phillips was probably totally incapacitated. He attributed her incapacity for work to her injury. He seemed to change those opinions on the basis of the video. That seemed to us to be an overreaction.
Mrs Phillips has never claimed that she cannot use her right arm. Mr Davie in his report of 12 April 2000 (R3) expressed the opinion that Mrs Phillips had sustained a musculoligamentous injury to the cervical spine with a probable cervical disc injury. He noted "slight restriction of movement" of the right shoulder and normal movements of the elbow, forearms, wrist and hand.
We find that the MRI of 9 February 1995 does show multi-level cervical disc degeneration from C2-C7. The medical evidence did not allow us to find how much, if any, degeneration was present prior to or shortly after 13 September 1993. But we accept that prior to the accident Mrs Phillips did not suffer from neck pain, headaches or pain in her right arm and hand. The evidence did not allow us to make findings as to the precise cause of Mrs Phillips' ongoing headaches, neck and arm pains. We find that one probable cause is aggravation of cervical disc degeneration sustained in the accident on 13 September 1993, as explained by Mr Wallace (see paragraph 105). It is to relieve those symptoms that the nerve blocks, facet joint denervation and thoracic outlet syndrome were performed. We find that Mrs Phillips continues to suffer from the symptoms of aggravation of cervical disc degeneration and that therefore Comcare continues to be liable to pay compensation in respect of that condition.
We find that the video does not contradict Mrs Phillips' evidence to the Tribunal or the history she gave to the many doctors she has seen. She has never said she cannot use her right arm or turn her head. She has said she has pain in the right arm but that she still performs some activities using that arm. We do not find that Mrs Phillips is pretending to have pain she does not feel.
We find that Mrs Phillips is genuine and that her neck and arm injuries have continued to cause pain and headaches and to result in incapacity for work and in a need for medical treatment since 22 October 1998. It may be that Mrs Phillips would have had more success with her return to work program if she had lived closer to Shepparton, but that was not the case. Perhaps she may have been able to resume work on light duties and reduced hours at some stage after 22 October 1998 but there was no evidence of any efforts to find suitable work for her after that date. Mrs Phillips' evidence was that the Shepparton DEET office had closed and she was never offered suitable employment any where else.
Mr Carey said that his instructions were that Mrs Phillips had not retired or been terminated from her position. There was no evidence before us as to Mrs Phillips current employment status. We find that from 22 October 1998 Mrs Phillips' injuries to the neck have continued to result in incapacity for work so as to entitle her to continuing weekly payments of compensation for incapacity as well as the cost of medical expenses. There was no evidence that she has at any time since 22 October 1998 been able to earn any amount in "suitable employment" as defined in s 4(1) of the Act.
(i) In matter V98/1345, the reviewable decision of 22 October 1998 which varied the determination of 13 October 1998 by revoking liability for left total knee replacement surgery, will be set aside. This means that Comcare will be liable to pay compensation in respect of the surgery performed by Mr Critchley on 23 March 1999.
(ii)In matter V00/892, the reviewable decision of 6 June 2000 will be set aside and the determination of 22 October 1998, which ceased liability for accepted conditions from 22 October 1998, will be revoked. Liability to pay compensation for the accepted conditions will continue from 22 October 1998.
The Tribunal will order under s 67(8) of the Act that Mrs Phillips' costs of these proceedings be paid by Comcare. Liberty will be reserved to the parties to apply if further directions or findings are required for implementation of this decision.
I certify that the 132 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs Joan Dwyer, Senior Member Mr J. Brassil, AO, Member and Dr P Fricker, Member
Signed:         Chan Wai Heng
  Associate
Date/s of Hearing  31 July, 1 August and 27 November 2000
Date of Decision  18 May 2001
Counsel for the Applicant        Mr M Carey
Solicitor for the Applicant         Slater & Gordon
Counsel for the Respondent    Mr J Lenczner
Solicitor for the Respondent    Phillips Fox