Pito and Comcare (Compensation)

[2019] AATA 1347

Pito and Comcare (Compensation) [2019] AATA 1347 (20 June 2019)

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL              )
  )         No: 2017/5548

)         2018/1999
 )         2018/2760

General Division  )

Re: Josephine Pito
Applicant

And: Comcare
Respondent

CORRIGENDUM

TRIBUNAL:  Member R West

DATE OF CORRIGENDUM:            12 July 2019

PLACE:           Melbourne

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application as follows:

1. Delete the orders stated on pages 1 and 2 of the decision and replace them with:

1. The decision of the delegate of the Respondent dated 22 August 2017 in Matter 2017/5548 is affirmed.

2. The decision of the delegate of the Respondent dated 16 March 2018 in Matter 2018/1999 is set aside.

3. The decision of the delegate of the Respondent dated 9 May 2018 in Matter 2018/2760 is set aside.

4. In substitution for the decisions set aside in paragraphs 2 and 3 above the Tribunal decides that, on and from 7 November 2014 the Applicant suffered an injury, namely an aggravation of chronic pain syndrome for which the Applicant is entitled to compensation pursuant to section 14 the Safety Rehabilitation and Compensation Act 1988.

5. Costs are reserved

2. Delete paragraphs 176 to 180 (inclusive) of the Reasons for Decision and replace them with:

176.  Accordingly, the decisions of the delegate of the Respondent dated 16 March 2018 in Matter No. 2018/1999 and dated 9 May 2018 in Matter 2018/2760 to deny liability to the Applicant, under s. 14 of the SRC Act, are each set aside.

177. Having found that the physiological effects of the Applicant’s right ankle sprain had resolved by 10 February 2017 the Tribunal affirms the decision of the delegate of the Respondent dated 22 August 2017 in Matter 2017/5548.

178.  The Tribunal makes the following orders:

1. The decision of the delegate of the Respondent in Matter 2017/5548 that there was no present entitlement to compensation benefits under s. 16 and 19 of the SRC Act for ‘ankle sprain (right)’ is affirmed.

2. The decision of the delegate of the Respondent dated 16 March 2018 in Matter 2018/1999, to deny liability to the Applicant under s. 14 of the SRC Act, is set aside.

3. The decision of the delegate of the Respondent in Matter 2018/2760, to deny liability to the Applicant under s. 14 of the SRC Act is set aside.

4. In substitution for the decisions set aside in paragraphs 2 and 3 above the Tribunal decides that, on and from 7 November 2014 the Applicant suffered an aggravation of chronic pain syndrome resulting from a right ankle injury sustained in the course of her employment on 7 November 2014 for which the Applicant is entitled to compensation pursuant to section 14 the SRC Act.

3. Renumber Paragraph 181 as paragraph 179.

...........[sgd]........................................................

Member R West

Division:GENERAL DIVISION

File Numbers:         2017/5548, 2018/1999 and 2018/2760

Re:Josephine Pito

APPLICANT

AndComcare

RESPONDENT

Decision

Tribunal:Member R West

Date:20 June 2019

Place:Melbourne

1.The decision of the delegate of the Respondent dated 22 August 2017 in Matter 2017/5548 is set aside.

2.The decision of the delegate of the Respondent dated 16 March 2018 in Matter 2018/1999 is set aside.

3.The decision of the delegate of the Respondent dated 9 May 2018 in Matter 2018/2760 is set aside.

4.On and from 10 February 2017 the Applicant was incapacitated for work and undertook medical treatment for the aggravation of chronic pain syndrome resulting from a right ankle injury sustained by the Applicant in the course of her employment on 7 November 2014 (Injury) for which the Applicant is entitled to compensation pursuant to the Safety Rehabilitation and Compensation Act 1988 (SRC Act).

5.        On and from 10 February 2017 the Respondent shall pay to the Applicant:

a. the cost of medical and related treatment expenses incurred in respect of the Injury pursuant to s. 16 of the SRC Act ; and

b.weekly payments of compensation in respect of the Applicant’s incapacity for work by reason of the Injury pursuant to s.19 of the SRC Act.

6.        Costs are reserved.

[sgd]........................................................................

Member R West

Catchwords

Compensation – jurisdiction of Tribunal – chronic pain syndrome – aggravation – sustained as a sequelae – decision set aside - costs reserved

Legislation

Safety Rehabilitation and Compensation Act 1988

Cases

Lees v Comcare [1999] FCA 753

Comcare v Lofts [2013] FCA 1197

Szabo v Comcare (2012) FCAFC 129

Abrahams v Comcare  [2006] FCA 1829

Re Commonwealth of Australia v Keith Colville Smith [1989] FCA 189

Ogden Industries Pty Ltd v Lucas (1967) 116 CLR 593

Comcare v Reardon (2015) FCA 1166

Griffiths v Telstra Corporation Limited [2013] AATA 695

Kennedy v Comcare [2014] FCA 82

Re Durham and TNT Australia Pty Ltd (2011) 124 ALD 136; [2011] AATA 802

Commonwealth Banking Corp v Percival (1988) FCA 240

Commonwealth of Australia v Beattie [1981] FCA 88

REASONS FOR DECISION

Member R West

20 June 2019

1. This matter concerns an application for review of three decisions of the delegate of the Respondent to deny the Applicant compensation under the Safety Rehabilitation and Compensation Act 1988 (SRC Act) in respect of a right ankle sprain injury sustained on 7 November 2014; chronic pain syndrome or chronic regional pain syndrome (or their aggravation); and aggravation of adjustment disorder claimed to have been sustained as a sequelae of the ankle sprain.

   Background  

2. The Applicant joined the Australian Public Service (APS) in 2006 and worked in the Child Support Agency as an APS-3 officer.  She was subsequently appointed to a Team Leader position as an APS-6 officer for the Melbourne Child Support Smart Centre located at the Melbourne Central building in the Melbourne CBD.

3. Prior to joining the APS she worked as a teller with the National Australia Bank, before that as an emergency teacher with the Victorian Education Department for approximately 9 years and prior to that as a cleaner with the Moreland Council.

4. In the period from 2009 to 2012 the Applicant was appointed to higher duty positions within the Department of Human Services (DHS) on a project basis as an Executive level officer (EL-1 and 2).

5. In October 2013 the Applicant ceased work and remained off work until September 2014 when she returned to work at the Broadmeadows office of the Department of Human Services pursuant to a return to work program.

6. The Applicant ceased work in February 2015 and has not returned to work since that time.

7. On 15 November 2017 the Applicant was retired involuntarily from the APS on the grounds of medical retirement.  An invalidity retirement certificate was issued by ComSuper on 10 November 2017.

8. During the course of her employment with the APS the Applicant submitted five claims for compensation under the SRC Act.

   Past Claims

9. On 12 August 2013, the Applicant lodged:

   a.a claim for ‘right knee, left knee and left ankle’ as a result of slipping on a wet floor at Melbourne Central during her lunch break in May 2010 (Claim 1);

   b.a claim for ‘phlebitis and thrombophlebitis of lower extremities (right)’ claimed to have been sustained whilst sitting on a plane for work related travel, with a date of injury of 12 August 2009  (Claim 2); and

   c.a claim for ‘left leg, left knee, left ankle, left hip, aggravated osteoarthritis and chondromalacia left knee’ as a result of slipping on wet leaves whilst alighting from a car when travelling for work on 14 June 2012 (Claim 3).

10. On 20 November 2013, the Respondent:

    a.    denied liability for ‘right knee, left knee and left ankle’ (Claim 1) under s. 14 of the SRC Act, on the basis that the delegate was not satisfied that the Applicant suffered an injury as defined in the SRC Act.

    b.    accepted liability for ‘phlebitis and thrombophlebitis of lower extremities (right)’ (Claim 2) under s. 14 of the SRC Act, and the Applicant was paid compensation for incapacity for employment under s. 19 of the SRC Act as a result of this condition for the period of 27 September 2010 and 10 October 2010. The Applicant has not claimed any medical treatment in relation to this condition

    c.     accepted liability for ‘sprain of unspecified site of knee & leg (left)’ with a date of injury of 14 June 2012 (Claim 3) under s. 14 of the SRC Act, and accepted liability for compensation for medical treatment and incapacity for work as a result of this condition up until 27 November 2012 under ss. 16 and 19 of the SRC Act.

11. On 1 April 2014, the Applicant requested a reconsideration of the determinations dated 20 November 2013 in respect of Claims 1 and 3.  On 27 June 2014, the Respondent affirmed the determination in a reviewable decision of 20 November 2013. On 25 August 2014, the Applicant sought review by the Tribunal of the reviewable decision dated 27 June 2014.

12. On 28 May 2015, the Tribunal made a decision with the consent of the parties, as follows:

    a.the reviewable decision dated 27 June 2014, which denied liability for compensation for sprain of unspecified site of knee and leg (bilateral) as a result of a fall in May 2010 (Claim 1), is affirmed;

    b.the reviewable decision dated 27 June 2014, which denied liability for ongoing compensation for medical treatment and incapacity for work in relation to ‘sprain of unspecified site of knee & leg (left)’ with a date of injury of 14 June 2012 (Claim 3), is varied, as follows:

    i.pursuant to s. 14 of the SRC Act, liability is accepted for ‘aggravation of osteoarthritis and chondromalacia’;

    ii.pursuant to s. 16 of the SRC Act, the Respondent is liable to pay compensation for the Applicant’s reasonable medical expenses for the period of 14 June 2012 to 22 September 2014;

    iii.pursuant to s. 19 of the SRC Act, the Respondent is liable to pay compensation for incapacity resulting from the injury for the period of 14 June 2012 to 22 September 2014; and

    iv.on and from 23 September 2014 the Applicant is not entitled to compensation pursuant to ss. 16 and 19 of the SRC Act.

    Current Claims

13. On 20 November 2014 the Applicant lodged a claim for right ankle sprain sustained in an incident on 7 November 2014 (2014 Injury) when she was struck on the back of her right foot by a door which slammed shut as she entered the Broadmeadows office where she worked (Claim 4). The Respondent initially accepted liability in respect of the 2014 Injury.

14. On 10 February 2017, a primary determination was made by the Respondent that on and from 10 February 2017 there was no present liability to pay compensation to the Applicant in respect of the 2014 Injury pursuant to ss. 16 and 19 of the SRC Act.  The primary determination was affirmed by a reviewable decision of 22 August 2017 (Matter No. 2017/5548).

15. On 3 November 2017 the Applicant lodged a claim for compensation in respect of ‘chronic pain syndrome or chronic regional pain syndrome (or their aggravation)’ and ‘aggravation of adjustment disorder’ claimed to have been sustained as a sequelae of the ankle sprain, with a deemed date of injury of 7 November 2014 (Claim 5).  

16. A primary determination was made by the Respondent on 19 January 2018 denying liability in respect of the Claim 5.  The primary determination was affirmed in a reviewable decision of 16 March 2018 (Matter No. 2018/1999). 

17. The Applicant lodged a further claim in relation to Claim 5, which was considered by the Respondent and a primary determination to reject the claim was made on 5 March 2018.  This primary determination was affirmed in a reviewable decision of 9 May 2018 (Matter No. 2018/2760). The effect of the Respondent’s second consideration of the claim is identical to the effect of the first consideration

    Decisions to be reviewed

18. In Matter No. 2017/5548 the Applicant seeks a review of the decision of the delegate of the Respondent dated 22 August 2017[1] affirming the primary determination made on 10 February 2017 that there was no present entitlement to compensation benefits under ss. 16 and 19 of the SRC Act for ‘ankle sprain (right)’.

    [1] T1 at p.8

19. In Matter No. 2018/1999 the Applicant seeks a review of the decision of the delegate of the Respondent dated 16 March 2018[2] affirming the primary determination made on 19 January 2018 to deny liability to the Applicant under s. 14 of the SRC Act for chronic pain syndrome and aggravation of adjustment disorder or aggravation thereof.

    [2] T12.1 at p.458

20. In Matter No. 2018/2760 the Applicant seeks a review of the decision of the delegate of the Respondent dated 9 May 2018 affirming the primary determination made on 5 March 2018 to deny liability to the Applicant under s. 14 of the SRC Act for chronic pain syndrome or chronic regional pain syndrome (or their aggravation) and aggravation of adjustment disorder.

    Jurisdiction

21. In the course of the interlocutory stages of these proceedings the parties applied to have the Tribunal determine a matter related to its jurisdiction as a preliminary matter.  The parties were directed to file written submissions setting out their respective assertions on the jurisdictional question.  The Tribunal gave consideration to these submissions and determined to reserve its decision in relation to the jurisdictional question until after hearing the evidence at the substantive hearing.

22. The Applicant’s submission noted that the Respondent identifies 5 separate claims for compensation made by the Applicant, but asserts that the relevant matter for the Tribunal to consider in determining its jurisdiction is not the claim but the injury.  The submission goes on to say:

    …the continual reference to a ‘Claim’ instead of injury appears to be the source of confusion for what the Respondent understands is the jurisdiction of the Tribunal.  Hence, the Respondent suggests that it is the ‘Claim’ that is before the Tribunal.  It is not.

23. The Applicant contended that the Tribunal’s enquiry is not limited to the results of just one injury sustained on 7 November 2014 but to all employment injuries that have resulted in incapacity for work,[3] and that the Tribunal’s jurisdiction extended to a consideration of all the history and the sources of incapacitation. This included a ‘phlebitis and thrombophlebitis of lower extremities’ (Claim 2) and ‘sprain of unspecified site of knee and leg (left)’ (Claim 3).

    [3] at paragraph 54 of their ASOFIC

24. The Applicant seeks an order that:

    From 10 February 2017 to the present date and at the present date the employee was incapacitated for work and undertook medical treatment in respect of injuries sustained arising out of or in the course of her Commonwealth employment affecting her lower limbs, with chronic regional pain (or similar) and reactive anxiety and depression which entitles the employee to compensation pursuant to the Safety Rehabilitation and Compensation Act 1988…

25. The Respondent submitted that the jurisdiction of the Tribunal is set out in s. 64 of the SRC Act. An Application may be made to the Tribunal for review of a reviewable decision. ‘Reviewable decision’ is defined in s. 60 of the SRC Act as a decision under s. 38(4) or a decision on reconsideration under s. 62 of the SRC Act.

26. The Respondent contends that the only reviewable decisions which are before the Tribunal are:

    a.the decision of the delegate of the Respondent dated 22 August 2017[4] affirming the primary determination made on 10 February 2017 - Matter No. 2017/5548;

    b.the decision of the delegate of the Respondent dated 16 March 2018[5] affirming the primary determination made on 19 January 2018 - Matter No. 2018/1999; and

    c.the decision of the delegate of the Respondent dated 9 May 2018 affirming the primary determination made on 5 March 2018 - Matter No. 2018/2760

    [4] T1 at p.8

    [5] T12.1 at p.458

27. The Respondent asserts that pursuant to s. 64 of the SRC Act, the Tribunal does not have jurisdiction to consider liability for any entitlements in relation to ‘sprain of unspecified site of knee and leg (bilateral)’ (Claim 1), ‘phlebitis and thrombophlebitis of lower extremities’ (Claim 2) and ‘sprain of unspecified site of knee and leg (left)’ (Claim 3)

28. In relation to Claim 1, the Respondent contends that the Applicant has no entitlement to compensation for medical treatment and incapacity for work in relation to ‘sprain of unspecified site of knee and leg (bilateral)’, and relies on the Tribunal’s decision of 28 March 2014—made with the consent of parties—which affirmed the reviewable decision dated 27 June 2014, denying liability for compensation for ‘sprain of unspecified site of knee and leg (bilateral)’.

29. In relation to Claim 2, the Respondent contends that the Applicant has not made any claims for compensation for medical treatment in relation to ‘phlebitis and thrombophlebitis of lower extremities’ under s. 16 of the SRC Act, and the Respondent has not made any determination nor a reviewable decision which could become the subject matter of an application before the Tribunal. The Respondent contends that pursuant to s. 19 of the SRC Act, all claims for compensation for incapacity for work in relation to ‘phlebitis and thrombophlebitis of lower extremities’ (Claim 2) have been determined by the Respondent. The Respondent relies on the fact that the Applicant has not requested a reconsideration of any determination by the Respondent in relation to ‘phlebitis and thrombophlebitis of lower extremities’ (Claim 2). Accordingly, no such reviewable decision has been made by the Respondent. The Respondent relies on the fact that in the absence of a reviewable decision, the Tribunal does not have jurisdiction to consider liability for compensation for incapacity for work in relation to ‘phlebitis and thrombophlebitis of lower extremities’ (Claim 2).

30. In relation to Claim 3, the Respondent contends that, pursuant to s. 16 and 19 of the SRC Act, the Applicant has no entitlement to compensation for medical treatment and incapacity for work in relation to ‘sprain of unspecified site of knee and leg (left)’ on and from 23 September 2014. The Respondent relies on the Tribunal’s decision dated 28 March 2014—made with the consent of parties—which varied the reviewable decision dated 27 June 2014, and found that on and from 23 September 2014 the Applicant was not entitled to compensation pursuant to ss. 16 and 19 of the SRC Act for ‘sprain of unspecified site of knee and leg (left)’.

    Consideration

31. The Tribunal’s power to conduct a review of a Reviewable Decision under s. 43 of the AAT Act was discussed by the Full Court of the Federal Court in Lees v Comcare[6].  At [39] the court stated:

    In considering the extent of the power of the AAT when reviewing decisions under the Act, it is to be noted, first, that the AAT is authorised by s 64 of the Act to review only reviewable decisions - that is, for present purposes, second tier or reconsideration decisions made under s 62 of the Act. Decisions under s 62 of the Act are the result of the reconsideration by Comcare or a licensed authority of a determination, as defined by s 60 of the Act, concerning which a claimant will have received a notice in writing setting out the terms of the determination and the reasons for the determination (s 61(1)). Secondly, it is to be noted that the powers of the AAT under s 43(1) of the AAT Act are powers "[f]or the purpose of reviewing" the reviewable decision, not powers that may be exercised at large. Further, the powers and discretions that the AAT may exercise under s 43(1) are the powers and discretions conferred by the Act on the determining authority for the purposes of reconsidering a determination under s 62 of the Act. The AAT will not be authorised on review of a reviewable decision to exercise any powers and discretions which would not have been available to the determining authority at the second tier decision-making stage, albeit that such powers and discretions might have been available to the determining authority at the first tier decision-making stage.

    [6] [1999] FCA 753

1. While it is clear that it is the ‘occurrence of an injury which both “actuates and defines the ambit of Comcare’s duty” to pay compensation’[7] , under ss. 14, 16 or 19 of the SRC Act, it is the making of a claim for compensation that gives rise to the exercise of the power to make such a determination. The SRC Act provides in s. 54(1) that compensation is not payable to a person unless a claim for compensation is made by or on behalf of the person under that section. Subsection 61(1A) requires the determining authority to consider and determine each claim for compensation under s. 14 within the period prescribed by the regulations.  Accordingly, it is the claim which provides the basis for the assessment of whether there is liability to pay compensation.  The claim therefore determines the scope of the inquiry to be conducted by the determining authority.  Under s. 14 the determining authority must consider the claim to decide whether there is an injury (as that term is defined in s. 5A) suffered by the employee which has resulted in death, incapacity for work or impairment.

   [7] Comcare v Lofts [2013] FCA 1197 at [60]

2. The determining authority’s is empowered by s. 62 to reconsider a determination of its own motion or on application by, inter alia, the complainant.  The powers and discretions that the Tribunal may exercise under s. 43(1) are the powers and discretions conferred by the Act on the determining authority for the purposes of reconsidering a determination under s 62 of the Act, but ‘confined to considering questions of liability that fall within the temporal scope of the reconsidered decision’[8].  The Tribunal, in effect, stands in the shoes of the determining authority and is subject to the same jurisdictional limitations applicable to the determining authority.  Like the determining authority the Tribunal’s jurisdiction is confined to the issues raised by the claim.

   [8] Griffiths v Telstra Corporation Limited [2013] AATA 695 at [14]

3. This was discussed by the Full Court of the Federal Court in Szabo v Comcare[9] where it was stated:

   It is not possible to find, in the documents completed by or on behalf of Mr Szabo immediately following the incident of 20 June 1989, a claim in respect of some injury or disease arising from the nature and conditions of his employment……. That is not to say that it would not now be open to him to make a claim. However, until such a claim is made, and has been determined by Comcare, there can be no decision that could be the subject of review by the Tribunal.

   [9] (2012) FCAFC 129 at [41]-[42]

4. The Tribunal’s jurisdiction does not depend on how Comcare characterises the claim.[10] To the contrary, ‘the Tribunal must assess for itself the true scope of the claim’ and conduct the review on that basis[11].  In making this assessment ‘a broad, generous and practical interpretation’ is called for[12].

   [10] Kennedy v Comcare [2014] FCA 82

   [11] Re Durham and TNT Australia Pty Ltd (2011) 124 ALD 136; [2011] AATA 802

   [12] Abrahams v Comcare (2006) 93 ALD 147; [2006] FCA 1829 at [18]; Szabo at [50]

5. In this case the Tribunal does not have jurisdiction in these proceedings to consider liability for compensation for medical treatment and incapacity for employment in relation to ‘sprain of unspecified site of knee and leg (bilateral)’ as a result of a fall in May 2010 (Claim 1) or ‘sprain of unspecified site of knee & leg (left)’ with ‘aggravation of osteoarthritis and chondromalacia’ date of injury of 14 June 2012 (Claim 3), Those matters were finally determined by a Tribunal decision of 28 May 2015 and no application for review of any reviewable decision in relation to either claim has been made.  Similarly, the Respondent’s determination of the Applicant’s claim in respect of phlebitis and thrombophlebitis of lower extremities (right) (Claim 2) is not the subject of an application for review by the Tribunal.

6. The Tribunal’s jurisdiction is confined to a consideration of the reviewable decisions in Matters 2017/5548, 2018/1999 and 2018/2760, having regard to the true scope of the claim in each case.

   Matter No. 2017/5548

7. In Matter No. 2017/5548 the Applicant seeks a review of the decision of the delegate of the Respondent, dated 22 August 2017,[13] affirming the primary determination made on 10 February 2017 that there was no present entitlement to compensation benefits under s. 16 and 19 of the SRC Act for ‘ankle sprain (right)’.

   [13] T1 at p.8

8. The delegate adopted the reasons stated in the Report of the primary determination as the delegate’s reasons for the reviewable determination.

9. The Applicant’s claim for compensation in Matter No. 2017/5548 stated in answer to the question ‘For what injury or illness are you claiming compensation?’, the Applicant stated ‘soft tissue injury to right leg, sprained right ankle, low back strain, hip strain right side’.  The form records the date and time of injury as 7 November 2014 at 7.45 am and describes the event causing injury as ‘door slammed into back of my right foot wedging it between door and step – twisting it’.

10. The Respondent made an initial determination in respect of the claim on 18 December 2014.[14]  The Respondent accepted liability under s. 14 of the SRC Act in respect of ‘ankle sprain (right)’ but disallowed the claim for ‘lower back sprain’. 

    [14] T8 at p. 41

11. The Applicant sought a review of the determination in respect to the disallowance of the claim for her ‘back condition’.[15]  The review request was supported by a brief medical report from Dr R Chan, dated 9 February 2015,[16] stating that the Applicant was:

    …still suffering low back strain as well as continuing problems of her R ankle following sprained ankle during work accident on 7/11/14…. 

    Her low back strain is consistent with the injury in my opinion as patient may not notice the back pain for a few days after the injury as her ankle injury was her main concern.

    [15] T11 at p52

    [16] T11.1 at p. 53

12. The determination of 18 December 2014 was affirmed on review[17] on 21 March 2015.  The review officer found that there was no medical evidence to support a claim in respect of an injury to the right hip or the right leg.  The officer further found that the medical evidence did not establish that the Applicant’s back condition arose out of, or in the course of, her employment.

    [17] T13 at p.59

13. The Applicant did not seek a review of this determination.

14. The delegate determined on 10 February 2017 that there was no present liability under either ss. 16 or 19 of the SRC Act, stating that the claim for the purpose of the determination was the primary condition of ‘ankle sprain (right)’.  The delegate adopted the reasons of the case manager set out in her report of  10 February 2017,[18] in which she assessed the medical evidence related to the Applicant’s claim of ‘ankle sprain (right)’.

    [18] T36

15. The reviewable decision of 22 August 2017 adopted the reasons stated in the case manager’s report of 22 August.[19]  That report confined its consideration of the medical evidence to conditions related to the ‘ankle strain (right)’ injury for which liability was initially accepted in the determination of 18 December 2014. 

    [19] T44

16. The decision under review in this case is not the initial determination made by the Respondent on 21 March 2015 that it was liable for a particular injury, ‘ankle sprain right, but not right leg, low back strain, hip strain right side’ as claimed by the Applicant initially.  That determination is not the subject of an application for review by the Tribunal.  The decision under review here is the reviewable decision of the Respondent that it is not liable to pay compensation from 10 February 2017 in respect of the specific injury, ‘ankle sprain right’, for which liability had been initially accepted.  It is not open to the Tribunal to revisit the original decision to assess the claim and determine liability for the each of the injuries originally claimed.

    Matters 2018/1999 and 2018/2760

17. In Matter No. 2018/1999 the Applicant seeks a review of the decision of the delegate of the Respondent dated 16 March 2018[20] affirming the primary determination made on 19 January 2018 to deny liability to the Applicant under s. 14 of the SRC Act for chronic pain syndrome and aggravation of adjustment disorder or aggravation thereof.  The delegate adopted the reasons of the case manager set out in her report of 16 March 2018[21].

    [20] T12.1 at p.458

    [21] T12.2 at p. 460-475

18. The Applicant’s claim for compensation dated 3 November 2017 states that the conditions she is claiming are ‘chronic regional pain syndrome, chronic pain syndrome and psychological.’[22]In addition, in response to the question ‘Which parts of your body are affected?’[23] The Applicant states, ‘right lower limb’. The Applicant states that the date she first noticed her symptoms was 7 November 2014, and in response to the question ‘How were you injured?’ she states ‘door hit back of my right foot’.

    [22] T4 at p.33-36

    [23] Question 20 - T4 at p. 33

19. In making its initial determination, the Respondent adopted the reasons stated in the Allianz case manager’s report of 15 January 2018.[24]  This report considered the Applicant’s claim on the basis that it was a ‘disease type injury’ and assessed liability on the basis that the Applicant was claiming on the basis of ‘regional chronic pain syndrome and reactive anxiety depression secondary to her condition of sprained R ankle’.  The case manager’s report notes that Allianz made contact with the Applicant on 28 November 2017 to clarify whether the claim in Matter No. 2018/1999 was a new claim or secondary to the claim in Matter No. 2017/5548. The report notes that the Applicant had advised Allianz that the claim in Matter No. 2017/1999 was secondary to Matter No. 2017/5548 but her lawyers had advised her to lodge a new claim as the Respondent had determined that she had no present entitlement in relation to Matter No. 2017/5548. The Respondent’s delegate considered the Claim to be the same injury and mechanism of injury as claimed in Matter No. 2017/5548.[25]

    [24] T9.2 pp. 441-450

    [25] T9.2 at p.449

20. The Applicant sought a review of the initial determination but did not dispute the Respondent’s characterisation of the Applicant’s claim. On 8 November 2016, Ms Rachel Lodge, Allianz Case Manager, wrote to the Applicant in order to advise her of the Respondent’s intention to cease her entitlements to medical treatment and incapacity payments in relation to ‘ankle sprain (right)’ under ss. 16 and 19 of the SRC Act.[26]

    [26] 2017/5548, T30 at pp.138-140

21. On 9 December 2016 the Applicant’s solicitor, on behalf of the Applicant, wrote to the Respondent to request it to not cease the Applicant’s entitlements to medical treatment and incapacity payments in relation to ‘ankle sprain (right)’.[27] He wrote that the Applicant is now suffering from a chronic regional pain syndrome, which is secondary to her accepted right ankle sprain for which she is incapacitated for work and requires medical treatment.

    [27] 2017/5548, T33 at p.160

22. On 3 November 2017, the Applicant submitted a claim for ‘chronic regional pain syndrome’, ‘chronic pain syndrome’ and ‘psychological’ secondary to the Applicant’s ‘ankle sprain (right)’, with a deemed dated of injury of 7 November 2014.[28]

    [28] 2018/1999, T4 at pp.31-36

23. The Respondent’s reviewable decision of 16 March 2018[29] adopted the reasons stated in the case manager’s report of 16 March 2018,[30] in which the case manager assessed the Applicant’s claim on the same basis as the initial determination.

    [29] T12.1 at p.458

    [30] T12.2 at pp. 460-475

24. In Matter No. 2018/2760 the Applicant seeks a review of the decision of the delegate of the Respondent, dated 9 May 2018, affirming the primary determination made on 5 March 2018 to deny liability to the Applicant under s. 14 of the SRC Act for ‘chronic pain syndrome or chronic regional pain syndrome (or their aggravation)’ and ‘aggravation of adjustment disorder’.  The delegate adopted the reasons of the case manager set out in her report of 9 May 2018.

25. The Applicant’s claim for compensation in Matter No. 2018/2760 was stated in the claim form dated 3 November 2017, which formed the basis of the Applicant’s claim in Matter No. 2018/1999.[31]

    [31] T3 at p.25

26. In making its initial determination the Respondent stated that the Applicant’s claim was for conditions of ‘chronic pain syndrome, chronic regional pain syndrome (or their aggravation)’ and ‘aggravation of adjustment disorder’ on the existing claim for ‘ankle sprain (right)’.

27. In requesting a reconsideration of the initial determination the Applicant’s solicitors did not dispute the characterisation of the Applicant’s claim.

28. The Respondent’s reviewable decision of 9 May 2018 affirmed the initial determination of 5 March 2018 and the delegate adopted the reasons of the case manager’s report of 9 May 2018,[32] which assessed the Applicant’s claim on the basis of whether the Applicant’s compensable condition i.e. ankle sprain (right) sustained on 7 November 2014 contributed, to a significant degree, to the diagnosis of  ‘chronic pain syndrome or chronic regional pain syndrome (or their aggravation)’ and ‘aggravation of adjustment disorder’.

    [32] T7.2 at pp.199-211

29. The Tribunal accepts that matters 2018/1999 and 2018/2760 are concerned with the same claim.  Each derive from the same claim form lodged by the Applicant and, despite some differences in wording adopted by the decision-makers, each is concerned with the claim that the Applicant has a compensable condition, namely ‘chronic pain syndrome or chronic regional pain syndrome (or their aggravation)’ and/or ‘aggravation of adjustment disorder’.  Further it is also clear that the claim as it is dealt with in each case is a claim that these conditions arose as a sequelae to the ankle sprain (right) injury sustained by the Applicant on 7 November 2014; when a door she was entering slammed into the back of her right leg/foot and wedged it between the door and a step. 

30. This claim defines the scope of the Tribunal’s jurisdiction in matters 2018/1999 and 2018/2760, that is, to determine on review whether under s. 14(1) of the SRC Act at the date of the claim on 7 November 2017 the Applicant was suffering chronic pain syndrome or chronic regional pain syndrome (or their aggravation) and/or aggravation of adjustment disorder as a sequelae to the ankle sprain (right) injury sustained by the Applicant on 7 November 2014; and whether any or all of these conditions are an injury, as defined in the SRC Act, suffered by the Applicant as an employee and which has resulted in death, incapacity for work or impairment.

    Applicant’s Evidence

31. The Applicant gave evidence that she is 53 years old.  She holds a Bachelor of Arts degree and a Diploma of Education.  She has two adult daughters with whom she lives.  She took ill-health retirement on 15 November 2017 and is currently in receipt of a disability support pension.

32. She had a fall while working for the Moreland Council in 1989 for which she claimed workers compensation under the Victorian state scheme.

33. From 1990 until 1999 she worked as an emergency teacher with the Victorian Department of Education. 

34. The Applicant joined the National Australia Bank as a teller in 1999 and during that employment sustained an injury to her shoulder, head and left hip when she slipped on some stairs.  She was treated by Dr Chan, her general practitioner, and prescribed Panadeine Forte.  She was referred to Dr Clayton Thomas in 2000 for assistance with pain management.  She was off work for around two years.

35. In 2006 she joined the Australian Public Service working in the Child Support Agency  Call Centre located in the Melbourne Central building in the Melbourne CBD. 

36. In 2008 she had a mild heart attack.

37. In 2010 she had a fall at Melbourne Central while going for lunch.  She slipped on the wet floor and fell onto her knees and had ongoing pain in her left knee as a result.  She took a few days off initially and consulted Dr Chan.

38. In June 2012, while in Canberra she had a fall getting out of her car when she slipped on icy ground and sustained an injury to her left side.

39. In October 2013 she was seeing Dr Thomas about ongoing pain in her left knee. She had a fall in a shopping centre when her left knee ‘gave way’.  She was prescribed Panadeine Forte and Avanza, and participated in a pain management course at the Dorset Rehabilitation Centre under the supervision of Dr Thomas. She ceased work in 2013 because of the pain and did not resume work until September 2014.  She was placed on a return to work program at the DHS office in Broadmeadows.

40. On 7 November 2014 she sustained an injury to her right ankle when a door slammed on her foot as she was entering the Broadmeadows building. She received first aid and remained at work that day, later seeing Dr Chan. The pain from the injury caused her to stop work from time to time and she worked reduced hours. She could not cope with the pain and stopped work in February 2015.  In May 2015 she was referred to Dr Thomas and was prescribed pain relief medication. She saw an orthopaedic surgeon in December 2016.  She was suffering depression at the time feeling down most days and not coping.  She was prescribed Gabapentin which helped the pain but caused her depression to increase and she ceased its use.  She participated in a pain management program with the Dorset Rehabilitation Centre run by Dr Thomas.

41. During this time she was looked after by her daughters, mainly her youngest daughter, who assisted her with daily personal needs.  She said that the pain management program had assisted her to cope with daily activities and after the program she was able to shower, dress and care for herself.  She said that she could drive a car but only for short periods.  She said that she had not used a wheelchair to assist her to return to work because it was too painful to use.

    Medical History

42. The medical evidence in this case is extensive.  The Tribunal has had regard to all of the medical reports filed by the parties and the oral evidence of Dr Chan, Dr Blombery and Dr Thomas who were called by the Applicant; and the oral evidence of Dr Kostos, Dr Haynes and Dr Haig who were called by the Respondent.  In the interests of brevity all of this evidence is not set out in detail in this decision.

43. In broad terms there are two considerations relevant to the matters under review.  First, there are the direct physiological effects of the ankle injury sustained by the Applicant on 7 November 2014.  Secondly there are the consequential injuries claimed by the Applicant as sequelae of the ankle injury, namely ‘chronic pain syndrome or chronic regional pain syndrome (or their aggravation)’ and/or ‘aggravation of adjustment disorder’.

    Chronic pain syndrome or chronic regional pain syndrome (or their aggravation)

44. The Applicant’s claims in relation to ‘chronic pain syndrome or chronic regional pain syndrome (or their aggravation)’ relied primarily on the medical opinions of Dr Chan (general practitioner), Dr Clayton Thomas (consultant in rehabilitation and pain medicine) and Dr Peter Blombery (cardiologist and pain specialist). 

    Dr Chan

45. The progress of the Applicant’s condition is evidenced by Dr Chan’s clinical notes which were in evidence as part of the T Documents.

46. On 7 November 2014, the day of the accident, Dr Chan recorded in his clinical notes that the Applicant was ‘walking ok’, ‘no bruising or swelling leg’, ‘tender above Achilles tendon R ankle’,  and ‘tender lateral lig R ankle agg by movement’, and ‘non-specific (sic) tender over calcaneus bone & feet’, ‘no bruising full ROM’ and ‘Achilles tendon no clinical rupture (sic)’.[33]

    [33] 2017/5548, T47 [286]

47. On 28 November 2014, Dr Chan recorded in a clinical note: ‘right ankle getting better’.[34]

    [34] 2017/5548, T47 at p.291

48. On 15 December 2014, Dr Chan recorded in a clinical note: ‘says R ankle improved a lot. can walk a lot better’.[35]

    [35] 2017/5548, T47 at p.295

49. On 1 December 2014, Dr Chan recorded in a clinical note: ‘tried to work this am increasing [right] ankle pain’, ‘unable to continue working’ and ‘pain too much’.[36]

    [36] 2017/5548, T47 at p.292

1. On 14 January 2015, Dr Chan referred the Applicant to Mr Bernard Lynch, orthopaedic surgeon.[37] In his letter Dr Chan stated that the Applicant was experiencing ‘persistent R ankle pain following an injury when her R ankle was wedged between a concrete step & a door & twisted her ankle’. He explained that physiotherapy and hydrotherapy had resulted in no improvement in the Applicant’s condition.

   [37] 2017/5548, T10 at p.50

2. On 14 January 2015, Dr Chan recorded in a clinical note that his examination revealed: ‘swollen lat lig area R foot. Tender non specific’ and ‘full rom but tender’.

3. On 30 March 2015, Dr Chan recorded in a clinical note: ‘bone scan showed nad’, ‘just soft tissue injury’ and ‘told to continue antiinflammation (sic) tab. P/T, Wt lost. & refer pain management’.[38]

   [38] 2017/5548, T47 at p.303

4. On 7 December 2015, Dr Chan referred the Applicant to Ms Imogen O’Connor, psychologist.[39] Dr Chan stated that the Applicant had ‘reactive depression due to chronic pain R ankle following an injury on 7/11/14 at work’. Dr Chan stated that the Applicant ‘developed chronic pain due to laig (sic) injury despite normal XR ankle probably perpetuated by reactive depression’.

   [39] 2017/5548, T20 at pp.92-93

5. On 3 January 2017, Dr Chan provided a medical certificate in which he diagnosed the Applicant as suffering from ‘regional chronic pain syndrome’ for the first time.[40]

   [40] 2017/5548, T48 at p.422

6. On 1 June 2017, Dr Chan stated that the Applicant is suffering from ‘chronic right ankle sprain with reactive anxiety depression’ and ‘probably…regional pain syndrome’.[41] He stated that ‘on the balance of probabilities I consider that Mrs Pito[’s] current condition in reference to her right ankle is still materially contributed by her work place accident in 2014’. He stated that ‘Mrs Pito is currently not fit to undertake her full time pre injury duties’. He stated that ‘her mental condition is materially contributed to [by] her work place accident in 2014’.

   [41] Report to the Applicant’s solicitors at 2017/5548, T40 at pp.192-194

7. On 20 February 2019 Dr Chan opined that, on the balance of probabilities, the workplace accident on 7 November 2014 remains a material cause of her right ankle condition.[42]

   [42] Exhibit A2

8. Dr Chan gave evidence to the Tribunal and tendered two brief reports dated 1 June 2017 and 20 February 2019.[43]  He confirmed that he had treated the Applicant for on and off pain in her left knee following the 2012 incident in Canberra.  He confirmed that the Applicant had suffered from intermittent depression and anxiety for many years as a reaction to persistent pain, and that he had prescribed her Avanza for it.  He agreed that the Applicant’s right ankle sprain was not too traumatic and that there was no underlying pathology detected.

   [43] Exhibits A1 and A2

   Dr Clayton Thomas

9. On 30 March 2015 Dr Chan referred the Applicant to Dr Clayton Thomas consultant in rehabilitation and pain medicine for assistance with pain management.[44]

   [44] 2017/5548, T14 at p.64

10. On 14 May 2015, Dr Thomas wrote to Dr Chan and reported that the Applicant said she was experiencing ‘pain in her right foot from below the knee but mainly at the foot and ankle’.[45] He recorded that the Applicant said that ‘since the injury she had gained considerable weight because she was not able to walk which she used as a primary form of exercise and weight control’. He noted that upon examination the Applicant exhibited both hypoalgesia (reduced sensitivity to pain) and hyperalgesia (abnormally heightened sensitivity to pain) and dynamic allodynia to just below the knee. He observed that neurologically the lower limb presented as being intact, straight leg raising was unimpeded.  He noted a degree of sensitivity to the left foot and ankle as well, but not to the extent of the right foot and ankle.

    [45] 2017/5548, T15 at p.66

11. Dr Thomas concluded that the Applicant’s condition was ‘a chronic pain syndrome involving her right lower limb from her knee distally’ and it ‘presented very much as an organic chronic pain syndrome.’  His report notes further:

    …in view of her previous pain problems, which had a degree of pain syndrome within each, her pain processing was abnormal leading her (to) being vulnerable for this form of injury (and) to lead to this type of outcome.

12. On 20 August 2015, Dr Thomas wrote to the Respondent to request approval for the Applicant to be provided with a pain management program.[46] In his request he confirmed that the Applicant’s right ankle injury ‘is the dominant reason for the referral for a pain management program’.

    [46] 2017/5548, T18 at p.80

13. In his later report of 24 July 2017 Dr Thomas gave a history of his examination and treatment of the Applicant.[47] He reported that he first saw the Applicant on 17 August 2000 in relation to a fairly significant fall she had on 17 March 2000 resulting in neck and shoulder pain and lateral left ankle and hip pain.  When he saw her on 17 August 2000 she exhibited pain in her neck and left shoulder girdle.  The Applicant said she could not sleep because of the pain and that episodically she experienced numbness in her left arm.  She also complained of headaches. Dr Thomas opined that the Applicant’s primary problem related to her cervical spine and he suspected that her left shoulder problem was secondary.

    [47] 2017/5548, T41.1 at p.197

14. He then saw the Applicant again on 17 June 2008 and noted that she was, at that time, experiencing chronic intractable neck and shoulder pain. Dr Thomas noted that the Applicant had a very stiff spine but neurologically her upper limb was normal with respect to reflexes and sensation appeared normal but power was diminished with pain.

15. He again saw the Applicant on 25 October 2013.  The Applicant reported that she had fallen onto her knees in May 2010 and this had led to ongoing pain in her knees.  Dr Thomas noted that with time her back pain from the fall in 2000 had settled but the knee pain from her fall in 2010 had not.  She stated that she had persistent pain in her left more so than her right knee with some radiation of the pain distally.

16. Dr Thomas noted on each occasion that the Applicant was morbidly obese.  Dr Thomas also noted in his report that a CT scan of the lumbar spine on 11 June 2013 ‘looked to be within normal limits outside of some minor facet joint degenerative changes’ and that plain x-rays of the Applicant’s knees taken on 12 February 2013 ‘showed well preserved joint space.’ Dr Thomas concluded that the Applicant ‘seemed to have patellofemoral problems bilaterally but on the left knee medial meniscal tear.’  He sent her for an MRI scan which he said ‘tended to confirm a patellofemoral problem.’

17. Dr Thomas reported that, after his examination in May 2015, he again reviewed the Applicant on 2 December 2016 and noted that she had ongoing foot and ankle pain, ongoing high degree of sensitivity with hyperalgesia, dynamic allodynia fairly widespread and ongoing neuropathic pain. The Applicant reported that she had not received any discernible benefit from the use of Topiramate and this was discontinued.  Dr Thomas recommended she try Gabapentin 300 mg increasing each fortnight to 600 mg twice daily.

18. Dr Thomas next saw the Applicant on 22 February 2017 when she reported that, while she had benefitted from the Gabapentin from a pain perspective, she felt far more depressed and as a result. Dr Thomas advised her to scale back the dosage and if her mood did not improve to discontinue the use altogether.

19. In his oral evidence to the Tribunal, Dr Thomas stated that the terminology applied to pain had changed over the years and the term most apt for the Applicant’s condition was nociplastic pain.  He explained that with nociplastic pain the central nervous system becomes sensitized and, as this progresses lower and lower, stimuli are required to produce pain.  He stated that significant previous pain experiences would pre-dispose a person to experiencing nociplastic pain.  He stated that the Applicant’s prior pain experiences could have made her more vulnerable to chronic pain symptoms, but denied that she had chronic pain syndrome prior to the incident on 7 November 2014.

20. On 24 July 2017 Dr Thomas provided a report to the Applicant’s solicitor,[48] in which he stated that he had treated the Applicant for several other medical conditions from 17 August 2000 onwards and he first reviewed the Applicant in relation to her right ankle condition on 13 May 2015.  During this assessment he recorded that the Applicant ‘described pain in the right foot from below the knee but mainly at the foot and ankle’, and the pain is ‘still related to the work event from 2014’. He stated that the Applicant is not fit for her pre-injury full-time duties.

    [48] 2017/5548, T41.1 at pp.197-202

    Dr Peter Blombery

21. Dr Blombery, pain specialist and cardiologist, provided a report dated 3 July 2018 which was tendered in evidence[49].  He examined the Applicant on 3 July 2018 and noted that the Applicant had sustained a soft tissue injury to her right foot on 7 November 2014 in the course of her employment.  He opined that:

    She had ongoing pain in the area, but imaging has shown no evidence of major pathology in the affected area.  It is my opinion that her pain is in the nature of a non-specific pain syndrome present in the affected area, where there is sensitisation of pain nerve pathways, both in the periphery as well as the brain and spinal cord, such that non-painful stimuli become interpreted by the cerebral cortex as being painful… this is an organic disorder of pain nerve pathways.

    [49] Exhibit A3

22. Dr Blombery noted that the Applicant had prior injuries ‘which have been followed by prolonged pain suggesting that she is prone to developing pain syndromes after such injuries because of sensitised pain nerve pathways.’

23. He concluded that:

    it is my opinion that the accident on 7 November 2014 remains a material cause of her condition as it has resulted in sensitised pain nerve pathways and given the severity of her ongoing pain and the fact that she has not worked for the last three years, as well as her age and other factors, it is my opinion that she has no capacity for suitable employment.

24. Dr Blombery gave oral evidence at the hearing.  He stated that people who have had episodes of chronic pain in the past can have a predisposition to chronic pain syndrome.  He clarified that chronic pain syndrome was characterised by there being no other features other than pain.  He disagreed with Dr Kostos’ opinion, expressed in his report of 15 June 2018,[50] that there is no proven link between trauma and chronic pain syndrome.  He stated that there is now evidence showing a cause and effect between trauma and chronic pain syndrome in recent peer reviewed studies.  He acknowledged in cross-examination that there is disagreement within the medical profession over the link, and that it is a controversial issue.  He also acknowledged that the Applicant’s morbid obesity, depression and anxiety could contribute to her experiencing pain and that swelling in both her lower legs may suggest that the swelling was not related to her right ankle injury.

    [50] 2018/2760 T9 at 218-224

    Dr Grant Ramage

25. Several reports of Dr Grant Ramage, occupational physician, were included in the evidence before the Tribunal.[51]

    [51] Dr Ramage passed away in December 2018.

26. On 4 November 2015, Dr Grant Ramage provided a report to DHS based on his assessment of the Applicant on 26 October 2015[52].  He noted that the Applicant stated when walking she experienced shooting pain from the base of her Achilles tendon up the back of her leg to 5 cm below her knee. Dr Ramage also said her maximum pain is 10 cm above her heel in a broad area over the lower Achilles tendon, accompanied by pain under the sole of her foot from the heel to the heads of the metacarpal bones. She also complained of some extension of pain into the underside and medial side of her right big toe.  He also noted that ‘currently Ms Pito is continuing Avanza, the antidepressant 30 mg at night’.

    [52] 2017/5548, T19 at p.81-91

27. Dr Ramage concluded that the Applicant’s

    recent fairly minor right ankle injury [is] again presenting as chronic pain and the area of pain was quite widespread and well outside the limits of any physical injury that could have been caused by the door striking the back of the Achilles tendon or a minor inversion injury to the lateral ligament at the time of the injury.

28. In a further report to DHS on 18 April 2016,[53] Dr Ramage recorded that:

    on the right side she remained extremely tender to light touch from 6 cm above the medial malleolus and all along the lateral third of the medial side of her foot and half of the medial side of the sole of her foot including the big toe but sparing the lateral four toes.

    He concluded that the Applicant appears to be suffering from a type II regional pain syndrome.

    [53] 2017/5548, T24 at pp.109-120

29. On 14 December 2016, Dr Ramage provided a fitness for duty report[54] to DHS in which he stated that ‘given her current symptomatology, her disability in walking, driving a car or standing for any period of time without support, I foresee little chance of her ever returning to work with the Department of Human Services.’

    [54] 2017/5548, T31 at pp.141-150

30. On 16 March 2017, Dr Ramage provided a further fitness for duty report to DHS in which he diagnosed the Applicant as suffering from a ‘chronic regional pain syndrome type 2 in relation to her right foot and lower leg’ and stated that the Applicant was completely incapacitated for work.[55]

    [55] 2017/5548, T38.1 at pp.181-188

    Mr Ronald Haig

31. Mr Ronald Haig, orthopaedic surgeon, provided a report dated 14 January 2016 to the Respondent as part of a permanent impairment assessment of the Applicant’s previously accepted left knee condition.[56] Mr Haig stated that ‘examination of the right ankle showed…there was a considerable soft tissue envelope…however no tenderness and there was a full and pain-free range of motion’.  He stated that the Applicant presented with some features of ‘abnormal pain behaviour’. He noted that there was some inconsistency with regard to her priority of symptoms, as she told him it was her left knee that was far and away the most symptomatic; whereas in March 2015 she had told a Dr Macintosh that she referred to the right ankle as being the most symptomatic area.

    [56] 2017/5548, T21 at pp.94-103

32. Mr Haig concluded that his overall impression was ‘that there were factors other than musculo-sketal ones that played a significant part in her claimed symptomatology’. Mr Haig also stated that ‘…in the area of the right ankle I do not have a diagnosis for her complaints’.

33. Mr Haig gave oral evidence at the hearing.  He acknowledged that he had examined the Applicant on the basis that her principal condition was her left knee although he had also examined her in relation to her right ankle injury.  He conceded that during his clinical practice he had referred patients with chronic pain symptoms to a chronic pain specialist.

    Dr Philip Haynes

34. Dr Philip Haynes, occupational physician, provided a report, dated 18 October 2016,[57] to the Respondent based on his assessment of the Applicant on 10 October 2016. He noted that on examination there was no evidence of colour change in the right lower leg, ankle or foot and there was no detectable temperature change in that region when compared with the left side. There were no trophic changes in hair or nail appearance. The Applicant demonstrated a normal range of left ankle movement. On standing and walking, a slight flattening of both plantar arches was noted. Dr Haynes concluded that ‘there were no objective abnormal clinical findings apart from alleged tenderness and alleged restriction of movement. There were no findings consistent with a complex regional pain syndrome’. He concluded that ‘ongoing reported symptoms are not consistent with any objective continuing medical condition’ and ‘I do not consider there to be any objective evidence of any ongoing condition affecting the right ankle or foot and under the circumstances I do not believe that Ms Pito requires any further treatment to that region’.

    [57] 2017/5548, T29 at pp.129-137

35. On 10 August 2017, Dr Haynes provided a supplementary report to the Respondent in which he confirmed his opinion that, at the time of his assessment on 10 October 2016, there were no objective findings consistent with a complex regional pain syndrome.[58] He stated that he was not able to conclude that there was an ongoing condition related to the original mechanism of injury on 7 November 2014. He said that it is highly likely that the Applicant suffered some form of contusion or strain injury in the incident of November 2014, but such a condition should have gradually resolved in a matter of weeks or months. He was not able to diagnose any ongoing objective injury as a result of the incident of November 2014 and noted that investigations had not shown specific abnormality at that time. He said that other factors which contributed to the Applicant’s presentation included the ‘motivational factors’ referred to in his report of 18 October 2016 and ‘morbid obesity’.

    [58] 2017/5548, T43 at pp.206-208

36. Dr Haynes stated in his report of August 2017 that the views of Dr Thomas and Dr Ramage do not cause him to change the opinions that he expressed in his report of 18 October 2016.  He acknowledged in oral evidence to the Tribunal that he had not been in clinical practice for over 20 years and was not familiar with current literature on chronic pain syndrome.

    Dr Tony Kostos

37. Dr Tony Kostos, rheumatologist, provided a medical report dated 15 June 2018 to the Respondent based on his assessment of the Applicant on 12 June 2018.[59] Dr Kostos observed and recorded that on examination the Applicant was very obese being 157 cm tall and weighing 115 kg. He noted that:

    both ankles appear to be thickened, consistent with her body habitus. She demonstrated a greater range of active and passive ankle and tibiotalar and subtalar joint movements on the left compared with the right, but she complained of pain on the right side only.

    [59] 2018/2760, T9 at pp.218-224

38. Dr Kostos diagnosed the Applicant as suffering from ‘chronic pain syndrome’, which he explained ‘means persistence of pain in the absence of any identifiable physical abnormality’. He concluded that:

    Her pain syndrome was not significantly related to the right ankle sprain. It is quite clear from the information in your file and in particular the report from Dr Thomas dated 24 July 2017, and he noted, she had “a degree of pain syndrome” with all of her other problems. Furthermore, it was quite evident that prior to the fall the worker was struggling mentally and her doctor’s entry from 11 August 2014 noted that she was depressed, lacked drive, and had low self-esteem “because of chronic pain”. I also note her doctor’s entry from 24 October 2014 in which it is noted that she is working at Broadmeadows, but the doctor added, “Mentally can’t go to city as accident happens in city. Seeing psychologist”. Therefore, it is quite evident that this woman’s life has contained a number of different stresses and eventually at some stage she could not cope any longer.

39. Dr Kostos stated that ‘in my opinion her employment does not contribute at all to her current presentation’. He explained that ‘if she did suffer a right ankle injury, the condition would have resolved in a matter of weeks and clearly her ongoing pain relates to other factors’. He added that ‘further treatment will not help her condition’ and that the Applicant ‘will never return to work’.

    Aggravation of Adjustment Disorder

40. The principal medical evidence related to the claim in respect of aggravation of adjustment disorder was that of Dr Anthony Sheehan, consultant psychiatrist.

41. On 11 January 2018, Dr Sheehan provided a report to the Respondent based on his assessment of the Applicant on 2 January 2018.[60]  The report was in evidence but Dr Sheehan was not called as a witness.

    [60] 2018/1999, T8 at pp.419-433

1. Dr Sheehan recorded in his report that the Applicant said that following her injuries in 2010 and 2012 she had suffered  from depression and anxiety and she was ‘started on antidepressant medication (Avanza) and remained on that medication up until midway through 2014’. Dr Sheehan diagnosed the Applicant as ‘suffering from a chronic adjustment disorder with depressed and anxious mood consistent with DSM-4 terminology’.

2. Dr Sheehan stated that:

   ‘Based on the available information the initial injuries to Ms Pito in 2010 and 2012 led to the onset of the adjustment disorder. That condition appeared to improve with appropriate treatment, noting that Ms Pito stated antidepressant medication was ceased in mid-2014. It appears however that Ms Pito continued to experience symptoms of anxiety in relation to that condition noting that she was receiving psychological treatment in October 2014, just one month prior to the reported ankle injury. It appears there has been an aggravation of that pre-existing adjustment disorder subsequent to her right ankle injury’.

3. Dr Sheehan indicated further, that the Applicant will require continuation of antidepressant medication (Avanza) for at least a further 12 months and should be reviewed at the end of that period.

4. Dr Sheehan stated that: ‘From a psychiatric perspective Ms Pito’s current psychological symptoms are mild, and from a purely psychiatric perspective, Ms Pito has at least a partial capacity to engage in employment outside the DHS’, and could return to at least part-time work, that is 10-15 hours per work, with any restrictions required for her physical injuries. He added that ‘the Applicant appears to have reached maximum medical improvement from a psychiatric perspective’.

   Analysis

5. In this case, it is accepted that the Applicant suffered a physical injury on 7 November 2014, namely a right ankle sprain.  Liability was accepted and compensation paid in respect of this injury.[61]

   [61] Haig at 2017/5548 T21 at p.98 and Haynes at 2017/5548 T8 at p.41-42

6. The overwhelming weight of the medical evidence indicates that the direct physiological effects of the ankle injury had resolved well before 10 February 2017; the date upon which the Respondent determined that the Applicant had no present entitlement to compensation benefits under s. 16 and 19 of the SRC Act for ‘ankle sprain (right)’.

7. The injury was, from the outset, not a serious injury. On 7 November 2014, when the Applicant attended Dr Chan to obtain treatment for her right ankle condition, Dr Chan recorded in his clinical notes that the Applicant was: ‘walking ok’; ‘no bruising or swelling leg;, ‘tender above Achilles tendon R ankle’; ‘tender lateral lig R ankle agg by movement’; ‘non-specific (sic) tender over calcaneus bone & feet’; ‘no bruising full ROM’; and ‘Achilles tendon no clinical rupture (sic)’.[62]  Dr Ramage subsequently described the injury as a ‘fairly minor right ankle injury’.[63]

   [62] 2017/5548, T47 at p.286

   [63] 2017/5548, T18 at p.87

8. An x-ray of the Applicant’s right ankle and foot conducted by, Dr M Choong, radiologist, on 7 November 2014 showed ‘bones and joints are intact with no fracture seen’, ‘moderately prominent plantar calcaneal spur’ and ‘no degenerative changes’.[64]

   [64] 2017/5548, T47 at p.357

9. Later scans indicated no ongoing structural damage to the ankle or lower right leg.

   a.On 2 December 2014, Dr Alexander Dulimov, radiologist, provided a report in relation to a CT scan of the Applicant’s right leg, in which he observed that there was no fracture, no focal osseous lesion and no soft tissue foreign body or other finding of note.[65]

   b.On 9 January 2015, Dr Jim Mullany, radiologist, conducted an ultrasound of the Applicant’s right ankle and reported that the ultrasound did not reveal any abnormalities.[66]

   c.On 24 March 2015, Dr Ken Lee, radiologist, provided a report from the bone scan of the Applicant’s right foot in which he observed a ‘negative study for right foot fracture or major inflammation. Mild bilateral plantar fasciitis and subtalar joint arthritis’.

   d.On 24 March 2015, Dr Michael Lee, radiologist, provided a report from the x-ray of the Applicant’s right foot in which he made the following observations:

   Ankle mortice alignment is normal. No ankle joint arthropathy. Plantar calcaneal spur noted. There is impression of a pes planus deformity despite the patient being supine. Minor bony spurring in the dorsal aspect of the talar head may be due to old avulsive type injury. No bone or joint abnormality detected.

   e.Dr Bernard Lynch, orthopedic surgeon, reported on 30 March 2015 that an x-ray of the Applicant’s hindfoot and the entire foot shows no evidence of fracturing or degeneration, no signs of reflect sympathetic dystrophy or signs of acute injury.

   [65] 2017/5548, T47 at p.358

   [66] 2017/5548, T47 at p.359

10. Dr Clayton Thomas observed, on 30 March 2015,[67] that ‘neurologically the lower limb presented as being intact, straight leg raising was unimpeded’.  He concluded that the Applicant’s condition was ‘a chronic pain syndrome involving her right lower limb from her knee distally’.

    [67] 2017/5548, T15 at p.66

11. On 14 January 2016, Mr Ronald Haig, orthopaedic surgeon, provided a report stating that,[68] ‘examination of the right ankle showed…there was a considerable soft tissue envelope…however no tenderness and there was a full and pain-free range of motion’.  He observed that the Applicant ‘presented with some features of abnormal pain behaviour’ and concluded that ‘it was my overall impression that there were factors other than musculo-sketal ones that played a significant part in her claimed symptomatology’.

    [68] 2017/5548, T21 at p.94-103

12. On the basis of this evidence, the Tribunal finds that by 10 February 2017 the physiological effects of the Applicant’s right ankle sprain, sustained in the incident on 7 November 2014, had resolved and she no longer suffered from any physiological symptoms.

13. Notwithstanding the resolution of the physiological symptoms of the injury, the evidence is that the Applicant reported that she was suffering from ongoing pain in the lower right leg after the incident on 7 November 2014 and continuing after 10 February 2017.  The Tribunal accepts that incapacity due to disabling psychological symptoms precipitated by minor physical injury to a person already suffering a neurotic temperament is well recognised, and if it occurs in compensable circumstances it is compensable even though the physical effects of the injury have resolved.[69]

    [69] Re Commonwealth of Australia v Keith Colville Smith [1989] FCA 189 at [16]

14. In this case, the Tribunal is required to decide whether to accept the conclusions of Drs Haig and Haynes that, after 7 November 2014, the Applicant did not suffer a medical condition related to the injury suffered on that date,[70] or the Applicant’s assertion that she suffered an ongoing chronic pain syndrome and anxiety disorder as a sequelae of the right ankle injury.

    [70] 2017/5548 T44 at p.215

    Chronic Pain Syndrome

15. The Tribunal does not accept the view expressed by Dr Haig and Dr Haynes that the Applicant was not suffering from an ongoing chronic pain syndrome after 10 February 2017. Dr Hayne demonstrated a limited knowledge of pain management and acknowledged that he had ceased clinical practice some 20 years previously.  Dr Haig’s report was primarily focussed on the left hip issues—arising from the 2012 incident—and only briefly dealt with the Applicant’s right ankle injury and its effects.  He conceded in cross examination that he deferred to pain management specialists in his clinical work and he did not profess to have expertise in relation to chronic pain syndrome.  A diagnosis of chronic pain syndrome was given by Dr Thomas and Dr Ramage, both experts in pain management, and confirmed by Dr Kostos, the expert called by the Respondent. 

16. Having regard to this medical evidence the Tribunal finds that the Applicant experienced the condition of chronic pain syndrome following the injury to her right ankle on 7 November 2014, and that she was continuing to suffer from that condition after 10 February 2017.

17. While Dr Kostos diagnosed the Applicant as suffering from chronic pain syndrome, he opined that the condition was not significantly related to the right ankle sprain suffered in the incident on 7 November 2014.[71]  He noted that previous medical reports indicated that the Applicant had a ‘degree of pain syndrome’ with all of her previous injuries.  He also noted Dr Chan’s report of 11 August 2014 that the Applicant was depressed, lacked drive and had low self-esteem because of chronic pain and his report of 24 October 2014 that the Applicant had mental issues and was seeing a psychologist.  His conclusion was that the right ankle injury sustained on 7 November 2014, which he described as a very minor incident, became the focus for the Applicant as another stressor in her life and the reason for this was her pre-existing psychological issues and chronic pain problems.[72]

    [71] 2018/2760 T9 at p.222

    [72] Exhibit R1

18. Dr Kostos’ view was at odds with the opinions of Dr Blombery and Dr Thomas.

19. Dr Blombery commented directly on the opinion of Dr Kostos in his report of 3 July 2018[73] where he stated:

    …I was quite surprised by Dr Kostos’s report of 15 June 2018 on page 5 where he makes the statement ‘Her pain syndrome was not significantly related to the right ankle sprain’. I find it very difficult to comprehend how one can conclude that in a patient after an ankle sprain who has continuing pain thereafter, there is no relationship between the ankle injury and ongoing pain. The ongoing pain is caused by sensitised pain nerve pathways which can be demonstrated in animal models. To make the statement that there is no relationship between an injury and ongoing pain which is unchanged over several weeks, months or years, defies logic…

    [73] Exhibit A3

20. Dr Kostos in turn responded to Dr Blombery’s criticism in his brief report of 25 February 2019.[74]  He opined that Dr Blombery had not fully understood that the Applicant had been in constant pain since 2000, and that correspondence from Dr Thomas notes that she has a well-established chronic pain syndrome. He asserted that Dr Blombery had focussed too narrowly on the Applicant’s right foot and not considered her condition and history as a whole.

    [74] Exhibit R1

21. Dr Blombery acknowledged in his oral evidence that episodes of chronic pain in the past can cause some people to have a pre-disposition to chronic pain syndrome, and he accepted that chronic pain could be due to psychological issues and that anxiety and depression can augment a person’s response to pain.  However, he maintained that this was not applicable in the Applicant’s case.  He also acknowledged that obesity could contribute to sensitising neurological pathways.

22. A significant point of disagreement between Dr Kostos and Drs Blombery and Thomas was the role of trauma in the development of chronic pain syndrome.  Dr Kostos was adamant that there was no scientific basis for a claim that chronic pain syndrome was caused by trauma.  He mentioned the studies of Professor Fred Wolfe of Harvard University, whom he described as the world’s foremost authority on pain syndromes, in relation to fibromyalgia which conclude that there is no connection between trauma and the contraction of fibromyalgia.  These studies were not produced to the Tribunal nor cited.  Dr Kostos asserted that rheumatologists regard fibromyalgia as a form of chronic pain syndrome. 

23. Dr Thomas acknowledged that there is disagreement within the medical profession as to the cause and effect of trauma and chronic pain symptoms.  He stated that pain management specialists agree that trauma may lead to chronic pain symptoms but this is disputed by some rheumatologists and orthopeadic surgeons.  He disputed that rheumatologists and orthopeadic surgeons were in a better position to judge than pain management specialists because they do not have the ongoing involvement with patients that pain management specialists have. He said he was not familiar with Professor Wolfe’s studies but he did not accept that fibromyalgia could be regarded as a form of chronic pain syndrome. In his opinion trauma was a causal factor in chronic pain syndrome.

24. Dr Blombery also acknowledged the differences of opinion in the medical profession regarding the role of trauma in the development of chronic pain syndrome. He asserted that there is scientific evidence to support his view that an injury to a person pre-disposed them to chronic pain syndrome.  He referred to peer reviewed studies on laboratory rats, which showed that after their injuries had healed a heightened pain reaction persisted. These studies were not produced to the Tribunal nor cited. Dr Blombery stated that the studies by Professor Wolfe could be ignored because they related to fibromyalgia which was a quite different condition to chronic pain syndrome and in relation to which factors such as fatigue and mental/cognitive impairment play a significant role.

25. It would be presumptuous for the Tribunal to purport to arbitrate on the unresolved disagreement in the medical profession over the role of trauma in the development of chronic pain syndrome—especially on the basis of the scant evidence on the issue presented to the Tribunal in this case. The best the Tribunal can do, in discharging its duty to determine the matters before it, is to note that the role of trauma in the development of chronic pain syndrome is not universally accepted in the medical profession and to take this into account in assessing the evidence as a whole.

26. Having reviewed the medical evidence, the Tribunal is satisfied that, at 10 February 2017 and continuing, the Applicant was suffering from a chronic pain syndrome resulting in persistent pain in her right lower leg and particularly her right ankle.  While satisfied that the onset of the pain was not unrelated to the injury to her right ankle, the Tribunal is not satisfied that this injury was a significant causal factor in the development of her chronic pain syndrome.

27. The evidence establishes that the Applicant sustained relatively minor injuries in 2000, 2010 and 2012 following which, in each case, she experienced ongoing chronic pain.  Dr Thomas noted in his report of 24 July 2017 that these previous pain problems ‘had a degree of pain syndrome within each’.  The history of the Applicant’s pain issues as noted in Dr Thomas’s report is consistent with a chronic pain condition.  Dr Thomas noted that the neck and shoulder pain experienced by the Applicant following a fall in 2000 persisted until 2012, but then ‘settled’ following the injuries to her left knee and hip in 2010 and 2012.  Dr Thomas’s report notes that a CT scan of the Applicant’s lumbar spine in June 2013 looked to be within normal limits. The pain in the Applicant’s left knee then persisted until 2015, when it too settled without the need for surgical intervention. Dr Thomas’s report notes that plain x-rays on both of her knees in February 2013 showed ‘well-preserved joint spaces’. The Applicant then reported experienced continuing pain in her right lower leg following the ankle strain injury in November 2014, which Dr Thomas, Dr Brombery and Dr Kostos all accept was due to a chronic pain syndrome. The pattern of symptoms reported by Dr Thomas is consistent with Dr Kostos’ conclusion that the Applicant had a ‘well-established chronic pain syndrome’ prior to the incident on 7 November 2014.

28. Prior to the incident on 7 November 2014 the Applicant was suffering significant depression and anxiety and she was morbidly obese.  Her obesity was first noted by Dr Thomas when he examined her in 2000, and commented on again in 2013 when he described her as morbidly obese. Other medical witnesses also commented on her obesity. Dr Thomas also noted, as early as 2000, that the Applicant was emotionally devastated due to the consequences of her injuries. Dr Sheehan concluded, based on the available information, that the Applicant’s injuries in 2010 and 2012 led to the onset of an adjustment disorder requiring antidepressant medication; and that she continued to experience symptoms of anxiety in relation to her condition and received psychological treatment up to October 2014—just one month prior to the reported ankle injury. The reports of Dr Prestage, dated 3 September 2014,[75] and Ms Rawley, dated 6 October 2014,[76] each state that the Applicant was experiencing ‘psychological symptoms’ and ‘depressive symptoms’ prior to 12 January 2015.

    [75] 2018/2760, T4.2 at p.63

    [76] 2018/2760, T4.5 at p.127

29. It was accepted by each of the medical experts that obesity and mental health issues can contribute to the onset of chronic pain syndrome.  It is not universally accepted that the onset of trauma, such as the ankle sprain sustained by the Applicant on 7 November 2014, is a causal factor for chronic pain syndrome.

30. On the balance of probabilities the Tribunal finds that the Applicant had developed chronic pain syndrome before the incident on 7 November 2014 and that the relatively minor injury she sustained to her right ankle, while providing the site or a focal point for the experience of pain associated with chronic pain syndrome, did not cause the condition.

31. This then raises the further question of whether the injury sustained by the Applicant had aggravated the pre-existing chronic pain syndrome.

32. For the purpose of the SRC Act the term ‘aggravation’ of an ailment or injury connotes that an existing disease or injury has been made worse, not that it has simply become worse.[77]

    [77] Ogden Industries Pty Ltd v Lucas (1967) 116 CLR 593 per Windeyer J. – see also Comcare v Reardon (2015) FCA 1166 per Mortimer J. at [35]

33. The Full Court of the Federal Court in Commonwealth of Australia v Beattie,[78] adopting the reasoning of Kitto J. in Federal Broom Co. Pty Limited v Semlitch,[79] concluded that there may be an exacerbation or an aggravation of an injury notwithstanding that there is no change in the underlying pathology, and whether there is an exacerbation or an aggravation of an injury is a question of fact.  Thus, pain brought on by a work injury may be an aggravation of a pre-existing injury even though no pathological change takes place.  As the court noted in  Commonwealth Banking Corp v Percival:[80]

    ‘Pain is the most common symptom of an injury.  If the pain arising from an underlying condition is aggravated, that is increased or intensified, as a result of an employee’s employment than the employee will have suffered a compensable injury.’

    [78] [1981] FCA 88

    [79] [1964] HCA 34; 110 CLR 626

    [80] (1988) FCA 240

34. Ordinarily a physical injury will involve some physiological damage with pain being a symptom of the injury.  However, in the case of chronic pain syndrome there is no physiological damage.  The experience of pain is not a symptom of an injury.  It is the injury.  Chronic pain syndrome is the experience of pain in the absence of physiological damage. 

35. The evidence is that the Applicant had not suffered from a constant level of pain prior to the incident on 7 November 2014. Her experience of chronic pain prior to the incident was not constant or fixed.  It was characterised by varying degrees of pain in certain sites in her body at different times in response to different stimuli. She experienced chronic pain in her neck and shoulders from about 2000 to 2012, and in her left knee from about 2010 to 2015. Prior to 7 November 2014 her pain caused her to cease work for considerable periods,[81] but she was able to work without restrictions for around 7 years, from 2006 until 2013, and was able to return to work on a restricted basis in September 2014.  Following the incident on 7 November 2015 the Applicant has been in constant pain and has been off work for over 4 years.

    [81] Her evidence was that she was absent from work for 2 years following the incident in 2000 and for around 10 months following the incidents in 2010 and 2012.

1. On the basis of the evidence as a whole, the Tribunal is satisfied that the Applicant’s chronic pain syndrome has worsened as a consequence of the injury to her right ankle on 7 November 2014 and, as a result, the injury has aggravated her pre-existing chronic pain syndrome.  

   Adjustment Disorder

2. The Tribunal is satisfied on the basis of Dr Sheehan’s report that, at 10 February 2017, the Applicant was suffering from an adjustment disorder requiring continued antidepressant medication (Avanza), and that the disorder was pre-existing from before the incident on 7 November 2014 when the Applicant sustained a right ankle sprain. 

3. The question is whether the Applicant’s ankle strain sustained on 7 November 2014 aggravated the pre-existing adjustment disorder.  The Applicant relies on the opinion of Dr Sheehan.  Dr Sheehan concluded that: ‘It appears there has been an aggravation of that pre-existing adjustment disorder subsequent to her right ankle injury’.  This conclusion appears to have been based on information provided to Dr Sheehan by the Applicant, namely that she had ceased antidepressant medication midway through 2014 and that she was generally doing well and felt okay just prior to the injury on 7 November 2014. This information is at odds with the medical evidence. Dr Chan’s records from 11 August 2014 state that the Applicant was taking antidepressants and was suffering from a ‘severe mental disorder’ prior to 7 November 2014. His clinical notes of 19 July 2011 note that the Applicant ‘was crying all the time, lack of drive, insomnia, withdrawn’ for which he prescribed Avanza.[82]

   [82] T6 at p.50

4. Ms Rawley also reported, on January 2015,[83] that the Applicant had advised her that she ‘continues to consult with Ms Bridgette Benson (Psychologist), for treatment of her anxiety symptoms initially related to a non-compensable left knee injury’.

   [83] 2018/2760, T4.5 at p.137-148

5. Dr Sheehan’s report also noted that, ‘notwithstanding the continuation of the painful effects of the chronic pain syndrome, by January 2018 the Applicant’s psychological symptoms were mild’. It was noted that from ‘a purely psychiatric perspective, she had at least a partial capacity to engage in employment outside the DHS’, and could return to at least part-time work. 

6. On the basis of this evidence the Tribunal does not accept the conclusion of Dr Sheehan and finds on the balance of probabilities that the Applicant’s adjustment disorder was a pre-existing condition which was not aggravated by the injury to her right ankle on 7 November 2014.

   Summary of Findings

7. On the basis of the evidence the Tribunal finds:

   a.the Applicant suffered a physical injury on 7 November 2014, namely a right ankle sprain during the course of her employment;

   b.by 10 February 2017 the physiological effects of the Applicant’s right ankle sprain had resolved and she no longer suffered from any physiological effects;

   c.the Applicant experienced continuing chronic pain syndrome following the injury to her right ankle on 7 November 2014;

   d.the Applicant had developed chronic pain syndrome before the incident on 7 November 2014 and the injury she sustained to her right ankle did not cause the condition, but it did aggravate it;

   e.on 10 February 2017, the Applicant was suffering from an adjustment disorder which was pre-existing from before the incident on 7 November 2014; and

   f.the Applicant’s adjustment disorder was not aggravated by the injury to her right ankle on 7 November 2014.

   Assessment of Claims

8. In Matter No. 2018/1999 the Applicant seeks a review of the decision of the delegate of the Respondent, dated 16 March 2018,[84] affirming the primary determination made on 19 January 2018 to deny liability to the Applicant under s. 14 of the SRC Act for chronic pain syndrome and aggravation of adjustment disorder or aggravation thereof.

   [84] T12.1 at p.458

9. In Matter No. 2018/2760 the Applicant seeks a review of the decision of the delegate of the Respondent, dated 9 May 2018, affirming the primary determination made on 5 March 2018 to deny liability to the Applicant under s. 14 of the SRC Act for ‘chronic pain syndrome or chronic regional pain syndrome (or their aggravation)’ and ‘aggravation of adjustment disorder’.

10. In Matter No. 2017/5548 the Applicant seeks a review of the decision of the delegate of the Respondent, dated 22 August 2017,[85] affirming the primary determination made on 10 February 2017 that there was no present entitlement to compensation benefits under s.16 and 19 of the SRC Act for ‘ankle sprain (right)’.

    [85] T1 at p.8

11. Under s. 14 of the SRC Act, Comcare is liable to pay compensation in accordance with the Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.

12. Under s. 5A of the SRC Act an ‘injury’ is relevantly defined as:

    (a)  a disease suffered by an employee; or

    (b)  an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee's employment

13. A ‘disease’ is further defined as:

    (a)  an ailment suffered by an employee; or

    (b)  an aggravation of such an ailment;

    that was contributed to, to a significant degree, by the employee's employment by the Commonwealth or a licensee.

14. In turn an ‘ailment’ is defined as ‘any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)’.

15. The Tribunal is satisfied that the aggravation of the Applicant’s chronic pain syndrome was, at 10 February 2017, an ailment as defined as being a physical disorder or defect suffered by the Applicant. 

16. The Tribunal is further satisfied that the ailment was caused by the injury to the Applicant’s right ankle sustained during her employment with the Commonwealth on 7 November 2014 and therefore was significantly contributed to by the Applicant’s employment.

17. Accordingly, the aggravation of the Applicant’s chronic pain syndrome meets the definition of a disease and therefore an injury under s. 5A.

18. It is not disputed that the Applicant’s chronic pain syndrome had, by 10 February 2017, resulted in a degree of incapacity for work and/or impairment.[86]

    [86] Dr Kostos stated in his report of 15 June 2018 (2018/2760 - T9) that further treatment will not help the Applicant’s condition and she will never work again.

19. On this basis, the Tribunal finds that the Applicant suffered an injury. Namely, aggravated chronic pain syndrome as a result of the right ankle injury sustained by the Applicant during the course of her employment with the Commonwealth on 7 November 2014, and the injury has resulted in the Applicant suffering an incapacity for work and/or an impairment for which the Commonwealth is liable under s. 14 of the SRC Act.

20. The decision of the delegate of the Respondent dated 16 March 2018 in matter No. 2018/1999, affirming the primary determination made on 19 January 2018 to deny liability to the Applicant, under s. 14 of the SRC Act, is set aside.

21. Under ss. 16 and 19 of the SRC Act the Respondent is liable to pay compensation in respect of medical treatment (s. 16) and weekly compensation (s. 19) in accordance with the SRC Act where an employee suffers an injury as defined.

22. Having found that the aggravation of the Applicant’s chronic pain syndrome as sustained after 10 February 2017 is an injury as defined in s. 5A, the Tribunal finds that the Respondent is liable to the Applicant under ss. 16 and 19 of the SRC Act in respect of that injury.

23. Accordingly the decisions of the delegate of the Respondent in matters 2017/5548 and 2018/2760 are set aside.

    Decision

24. The Tribunal makes the following orders:

    1.The decision of the delegate of the Respondent dated 16 March 2018 in Matter 2018/1999,[87] affirming the primary determination made on 19 January 2018 to deny liability to the Applicant under s. 14 of the SRC Act, is set aside.

    2.The decision of the delegate of the Respondent in Matter 2017/5548 that there was no present entitlement to compensation benefits under s. 16 and 19 of the SRC Act for ‘ankle sprain (right)’ is set aside.

    3.The decision of the delegate of the Respondent in Matter 2018/2760 to deny liability to the Applicant under s. 14 of the SRC Act for ‘chronic pain syndrome or chronic regional pain syndrome (or their aggravation)’ and ‘aggravation of adjustment disorder’ is set aside.

    4.On and from 10 February 2017 the Applicant was incapacitated for work and undertook medical treatment for the aggravation of chronic pain syndrome resulting from a right ankle injury sustained in the course of her employment on 7 November 2014 (Injury) for which the Applicant is entitled to compensation pursuant to the Safety Rehabilitation and Compensation Act 1988 (SRC Act).

    5.On and from 10 February 2017 the Respondent shall pay to the Applicant:

    (i)the cost of medical and related treatment expenses incurred in respect of the Injury pursuant to s. 16 of the SRC Act ; and

    (ii)weekly payments of compensation in respect of the Applicant’s incapacity for work by reason of the Injury pursuant to s. 19 of the SRC Act.

    [87] T12.1 at p.458

    Costs

25. The Applicant seeks an order that the Respondent pay the Applicant’s costs and disbursements in respect of these proceedings, pursuant to s. 67 of the SRC Act (Application).  The Tribunal reserves its decision in relation to costs and directs that the parties file and serve written submissions in relation to the Application within 21 days of the date of this decision.  Unless either party requests the listing of the Application for a hearing, the Tribunal will decide the Application having regard to the written submissions.

I certify that the preceding 181 (one hundred and eighty-one) paragraphs are a true copy of the reasons for the decision herein of Member R West

[sgd]........................................................................

Associate

Dated: 20 June 2019

Dates of hearing:	4, 5 and 6 March 2019
Counsel for the Applicant:	Mr Mark Carey
Solicitors for the Applicant:	Mr Ben Gilley Slater & Gordon Lawyers
Counsel for the Respondent:	Mr John Wallace