Priestly and Comcare (Compensation) - [2019] AATA 5456

Priestly and Comcare (Compensation) [2019] AATA 5456 (18 December 2019)
Division: GENERAL DIVISION
File Number(s): 2017/0707; 2017/3173
Re:Wendy Priestly
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Mark Hyman, Member
Date:18 December 2019
Place:Canberra

The tribunal, in matter 2017/0707:
a)sets aside the decision under review;
b)determines that, in substitution, Ms Priestly has an entitlement to claim compensation for medical treatment under section 16 and incapacity under section 20 of the SRC Act;
c)remits Ms Priestly’s claim to Comcare for calculation and payment of compensation under section 16 of the SRC Act in accordance with these reasons; and
d)remits Ms Priestly’s claim to Comcare for determination, calculation and payment of compensation under section 20 of the SRC Act in accordance with these reasons.

In matter 2017/3173, the tribunal:
a)sets aside the decision under review;
b)determines that, in substitution, Ms Priestly has an entitlement to claim compensation for medical treatment under section 16 and incapacity under section 20 of the SRC Act; and
c)remits Ms Priestly’s claim to Comcare for calculation and payment of compensation under sections 16 and 20 of the SRC Act in accordance with these reasons.

In accordance with section 67 of the SRC Act, Comcare is liable to pay Ms Priestly’s party/party costs and disbursements.
........................................................................
Mark Hyman, Member
Catchwords
WORKERS’ COMPENSATION – acute injury to the back – development of chronic pain syndrome – development of secondary psychological condition – whether applicant continues to suffer from the conditions – whether the conditions continue to be caused by employment – whether applicant is “genuine” in reporting symptoms – reasonable medical treatment – incapacity - decision under review set aside and substituted
PRACTICE AND PROCEDURE – whether surveillance material should be admitted – where no notice of surveillance material given to tribunal or applicant prior to the hearing – weight to be given to material if admitted
Legislation
Administrative Appeals Tribunal Act 1975, ss 18B, 33, 35, 37, 38AA
Evidence Act 1995, s 79
Safety, Rehabilitation and Compensation Act 1988, ss 4, 5A, 5B, 7, 14, 16, 19, 20, 24, 27, 62, 64, 67, 71
Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007 (No. 54/2007)
Tribunal Amalgamations Act 2015
Cases
Abrahams and Comcare [2006] FCA 1829
Australian Postal Corporation v Bessey [2001] FCA 266
Australian Postal Commission v Hayes (1989) 23 FCR 320
Australian Securities and Investment Commission v Rich (2005) 218 ALR 764
Boyes v Colins [2000] 23 WAR 123
Buttigieg and Comcare [2017] AATA 1002
Comcare v Power [2015] FCA 1502
Comcare v Mooi [1996] FCA 1587
Comcare v Muir [2016] FCA 346
Comcare vWuth (2018) 159 ALD 1
Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588
Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 200 CLR 286
Mackay and Comcare [2018] AATA 1244
McNamara and Comcare [2018] AATA 3688
Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305
Morton v Colonial Mutual Life Assurance Society [2013] FCA 681
Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468
Mitchell and Military Rehabilitation and Compensation Commission [2017] 161 ALD 518
Rodriguez v Telstra Corporation Ltd (2002) 66 ALD 57
Singleton and Comcare [2018] AATA 4088
Singleton v Comcare [2019] FCA 2104
Skobelkin-Mulcair and Comcare [2019] AATA 1054
Telstra Corporation Ltd v Hannaford [2006] FCAFC 87
Tuimaseve v Minister for Immigration and Border Protection [2018] FCA 396
Secondary Materials
American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, 5^th Edition
Champion et al, Chronic Widespread Pain and Fibromyalgia Syndrome: Life-Course Risk Markers in Young People
Freckelton and Selby, Expert Evidence: Law, Practice, Procedure and Advocacy, Fifth Ed, Lawbook Co, 2013
Melhorn et al, AMA Guides to the Evaluation of Injury and Disease Causation, 2^nd Edition, AMA, Chicago, Illinois
REASONS FOR DECISION
Mark Hyman, Member
18 December 2019

This decision is about whether the respondent, Comcare, remains liable to pay compensation to the applicant, Ms Wendy Priestly. Ms Priestly fell and hurt herself on 7 March 2003 while leaving a training course which she attended as part of her work for her employer, the Commonwealth’s superannuation organisation, ComSuper. Ms Priestly reported the fall the same day and lodged a claim for workers’ compensation on 16 March 2003, reporting her injury as “mechanical low back pain – sprain, possible L5S1, disc injury. Graze to knee”. The claim noted 10 March 2003 as the date when Ms Priestly first sought medical treatment. On 1 April 2003 Comcare accepted liability for “lumbar sprain”. On 23 April 2007 Comcare amended Ms Priestly’s accepted condition to include “chronic pain syndrome”, with date of injury 19 June 2003; this was later adjusted to identify the condition as “reflex sympathetic dystrophy”.
Subsequently Ms Priestly developed a psychiatric condition; the causation of that condition and its connection with her physical injury became a matter of dispute between Comcare and Ms Priestly; on 26 March 2008 Comcare decided that Ms Priestly’s psychological condition was unrelated to her accepted physical injury, and further decided that she was able to work 25 hours a week. Ms Priestly applied to this tribunal for review of that decision and on 23 June 2008 the tribunal endorsed a consent decision arrived at by the parties to the effect that Ms Priestly’s physical and psychological symptoms all derived from her accepted physical condition, identified as “chronic pain syndrome”; and that the chronic pain syndrome led to incapacity for work, but that no such incapacity arose from the psychological condition. On 4 May 2010 Comcare accepted liability for a separate psychiatric condition of “chronic adjustment disorder with depressed mood”, with date of injury identified as 19 November 2007. On 29 July 2010 Comcare determined a payment to Ms Priestly for permanent impairment and non-economic loss arising from her psychiatric condition under sections 24 and 27 of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act). Ms Priestly left her employment with ComSuper on 27 May 2011 and did not work in paid employment after that date.
After obtaining additional medical evidence, a Comcare delegate decided on 22 August 2016 that Comcare was not presently liable for medical expenses and incapacity under sections 16 and 19 of the SRC Act in respect of the accepted physical injuries, namely lumbar sprain and chronic pain syndrome. Comcare reconsidered and affirmed that decision on 13 December 2016 (changing the reference to section 19 of the SRC Act to section 20 in recognition that Ms Priestly was in receipt of a superannuation pension). Ms Priestly applied to this tribunal for review of that decision on 8 February 2017 (matter 2017/0707). In a separate decision dated 1 March 2017, Comcare determined no present liability for medical expenses and incapacity under sections 16 and 20 of the SRC Act in respect of the psychological condition, identified as “adjustment reaction with depressive reaction”; Comcare reconsidered and affirmed that decision on 8 May 2017. Ms Priestly applied for review of Comcare’s reconsideration determination on 30 May 2017 (matter 2017/3173).
The two decisions of 13 December 2016 and 8 May 2017 are reviewable decisions under section 62 of the SRC Act; under section 64 of that Act this tribunal has jurisdiction to undertake a review of each decision.
The two matters were heard together on 17 and 18 December 2018, with a third day of hearing on 26 March 2019. The long adjournment was necessitated by the introduction of surprise video surveillance material by Comcare, which required first of all that the hearing be extended to allow prolonged cross-examination of Ms Priestly, and second that a substantial adjournment be allowed so that Ms Priestly could make any adjustment to the way her case was to be framed and presented. The difficulty of finding suitable dates for the resumed hearing also required that the parties make their final submissions in writing rather than orally. I return below to the issues that arose from the question whether the video surveillance material should be admitted into evidence and, if so, the weight that should be accorded it.
Ms Priestly was represented by Mr Leo Grey of Counsel, briefed by Gabbedy Milson Lee; Comcare was represented by Mr Peter Woulfe of Counsel, briefed by HWL Ebsworth. Ms Priestly appeared as a witness and called two lay witnesses, namely her husband, Mr Garry Priestly, and her daughter, Ms Chantel Kelly, and two expert witnesses, Dr William Knox, a consultant psychiatrist, and Professor David Champion, a rheumatologist and pain medicine specialist. Comcare called three expert witnesses: Dr Derek Lovell, a consultant psychiatrist, Associate Professor Neil McGill, a consultant rheumatologist and Dr David Gorman, a consultant general physician and pain management specialist. The lay witnesses gave evidence in person and the expert witnesses appeared by telephone. The two psychiatrists gave evidence concurrently, as did the three physical medical specialists.
The tribunal was assisted by a large body of documentary material: the documents provided by Comcare under section 37 of the Administrative Appeals Tribunal Act 1975 (the AAT Act – the “T-documents”); documents provided under section 38AA of the AAT Act (the supplementary T-documents); documents obtained and provided by Comcare under section 71 of the SRC Act; and exhibits tendered at the hearing as set out in the following table.

Document	Date	Exhibit number
Witness statement by Ms Wendy Priestly	17 July 2017	A1
Witness statement by Mr Garry Priestly	18 February 2019	A2
Witness statement by Ms Chantel Kelly	18 February 2019	A3
Medical report by Dr William Knox, with briefing letter dated 2 June 2017	5 June 2017	A4
Medical report by Professor David Champion, with briefing letter dated 28 July 2017	29 September 2017	A5
Supplementary report by Professor Champion, with attached article	10 March 2019	A6
Letter by Dr Ralph Mobbs to Dr Dianne Hannaford	9 February 2017	A7
Bundle of documents provided under summons by Gungahlin General Practice	various	R1
Patient Health Summary provided under summons by Ochre Health, Bruce, covering the period from 16 February 2015 to 24 March 2017	10 November 2018	R2
Medical report by Professor Neil McGill with briefing letter dated 8 December 2017; letter from Professor McGill to HWL Ebsworth dated 11 January 2018	11 January 2018	R3
Supplementary report by Professor McGill, with briefing letter dated 13 February 2019	17 February 2019	R4
Medical report by Dr David Gorman, with briefing letter dated 28 March 2017	4 April 2017	R5
Supplementary report by Dr Gorman, with briefing email dated 9 May 2017	5 July 2017	R6
Supplementary report by Dr Gorman, with briefing letters dated 1 November and 30 November 2018	12 December 2018	R7
Supplementary report by Dr Gorman, with briefing letter dated 13 February 2019	25 February 2019	R8
Medical report by Dr Derek Lovell, with briefing letter dated 31 July 2017	9 August 2017	R9
Supplementary report by Dr Lovell, with briefing letter dated 17 October 2017	3 November 2017	R10
Supplementary report by Dr Lovell, with briefing letter dated 13 February 2019	28 February 2019	R11
Surveillance material comprising compilation discs with video material, still photographs, contemporaneous notes by partially anonymised operatives and a report	Report dated 2 May 2018; material relates to 5 - 15 April 2018	R12
Surveillance material comprising compilation discs with video material, still photographs, contemporaneous notes by partially anonymised operatives and a report	Report dated 4 December 2018; material relates to 16 -25 November 2018	R13

Comcare challenged brief passages in Exhibits A2 and A3. I deleted two sentences in Exhibit A2 (the last sentences in paragraphs 9 and 19) because in them Mr Priestly drew conclusions regarding Ms Priestly’s recovery and ability to work, conclusions that should probably only be drawn by someone with appropriate medical training. I have also held back from placing undue weight on the second to last sentence of paragraph 19, for similar reasons. In Exhibit A3 the first sentence in paragraph 7 was deleted, again because it put forward what appeared to be a medical opinion. The two exhibits were admitted following those changes.
During the conferencing process that preceded the hearing, in which opportunities for settlement were explored, one of the tribunal’s conference registrars directed Comcare to provide additional papers that were referred to in the T-documents or supplementary T-documents but apparently not included among them. These papers, comprising several determinations by Comcare relating to Ms Priestly’s claims, were made available to the tribunal (and, it is safe to assume, the applicant) on 20 April 2017. The email and the attached determinations did not make their way into the supplementary T-documents, as they should have, and have not been allocated an identifier. I propose to identify the bundle of documents, together with the covering email, as ST52. Of the four determinations provided under cover of the email, three (dated 19 September 2007, 14 November 2007 and 4 May 2010) are identical to ST33, ST36 and ST46 respectively. The remaining determination, dated 23 April 2007, is Comcare’s amendment of Ms Priestly’s accepted condition (lumbar sprain) to include “chronic pain syndrome”, with date of injury 19 June 2003.
During the drafting of this decision it became apparent that certain papers were either missing or incomplete, as reference is made to documents not included among the papers provided and in one case a page appears to be omitted. Enquiries of the parties led to some of these papers being provided, but others could not be found:
a)a record of a collection of data in a questionnaire completed for the Neurospine Clinic by Ms Priestly on 9 February 2017 (identified as Exhibit A8 – this document is associated with the letter of Dr Mobbs at Exhibit A7 and is referred to by Professor Champion in Exhibit A5);
b)a report of an MRI of the lumbar spine, dated 13 May 2012 (identified as Exhibit A9 and referred to by Dr Champion with the apparently mistaken date of 13 June 2012 in Exhibit A5);
c)the report of Dr Speldewinde at T26 is missing its second page, but the missing page has not been found despite extensive enquiry; and
d)a psychiatric assessment by Dr Farnbach dated 4 September 2007 is referred to by Dr George (T50 at folio 220). No report of that date is included in the papers and enquiries have yielded no result.
Given the wealth of medical evidence available in this matter and the way missing papers are described, I think it unlikely that those that cannot be found would lead to any significant alteration to these reasons.
For reasons of timing and availability the parties provided their closing submissions in written form. It was agreed between the parties during the hearing that by a given date they would exchange submissions of no more than 15 pages each, and that by a later date exchange submissions in reply limited to five pages in length. The parties accordingly provided submission along those lines; but Ms Priestly’s submission included an attachment running to 30 pages, consisting of a chronology and summary of the medical evidence, an additional two pages documenting a particular moment in the surveillance material and Mr Grey’s submissions regarding how that episode should be understood. Clearly by providing attachments (Comcare’s attachments comprised only copies of cases and other material referred to in the submission) Mr Grey may have departed from the understanding between the parties. In the event I have not drawn on the summary of medical evidence and, with regard to the surveillance material, I have drawn my own conclusions from the material itself.
ISSUES
The issues before the tribunal for decision relate both to Ms Priestly’s physical condition(s) and her psychiatric condition. The issues are:
·the diagnosis of each of Ms Priestly’s conditions;
·whether the physical conditions were contributed to, and as at 13 December 2016 and since, continue to be contributed to, in a material degree, by Ms Priestly’s employment;
·whether the psychiatric condition was contributed to, and as at 8 May 2017 and since, continues to be contributed to, to the requisite degree, by Ms Priestly’s employment;
·whether Ms Priestly continues to suffer from each of the conditions;
·whether Ms Priestly, at and since 13 December 2016, reasonably required medical treatment in relation to the physical conditions;
·whether Ms Priestly, at and since 8 May 2017, reasonably required medical treatment in relation to the psychiatric condition;
·whether Ms Priestly, as at 13 December 2016 and since, is incapacitated by the physical conditions;
·whether Ms Priestly, as at 8 May 2017 and since, is incapacitated by the psychiatric conditions; and
·whether Comcare is liable to pay compensation to Ms Priestly.
THE LEGISLATIVE FRAMEWORK
The SRC Act provides for compensation to be paid in respect of injuries occasioned by employment. A critical issue in the present matter is whether Ms Priestly’s condition or conditions (referred to henceforth in the plural for convenience) had the nexus with employment that is required for compensation to be paid. In turn, that is influenced by the date of onset of the conditions, as the SRC Act was amended by the Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007 (No. 54/2007), which commenced on 13 April 2007, to change the test to determine the required nexus. The dates of injury for Ms Priestly’s physical conditions accepted by Comcare are in 2003 and it is the unamended provisions that apply if those dates are accepted. The date of onset of the psychiatric condition is in November 2007, and it is the amended provisions that would apply in that instance; for reasons that will become clear I have determined an earlier date which means that the unamended causation test applies both to physical and psychiatric conditions..
Subsection 4(1) of the SRC Act, as it stood before amendment, defined an injury, for the purposes of the Act, as follows:
"injury" means:

(a) a disease suffered by an employee; or

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

(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), being an aggravation that arose out of, or in the course of, that employment;

but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment;
Subsection 4(1) also defined a disease, as follows::
"disease" means:

(a) any ailment suffered by an employee; or

(b) the aggravation of any such ailment;

being an ailment or an aggravation that was contributed to in a material degree by the employee's employment by the Commonwealth or a licensed corporation;
…
Once amended the SRC Act included in section 5A text that is identical for present purposes to that produced above for the definition of “injury” (the changes made to the text above relate to the “reasonable disciplinary action” in the last part of the text, which has no application in the present matter). Section 5B then relevantly defines “disease” in terms that differ from the extract above, as follows:
(1) In this Act:
disease means:
(a) an ailment suffered by an employee; or
(b) an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.
(2) In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:
(a) the duration of the employment;
(b) the nature of, and particular tasks involved in, the employment;
(c) any predisposition of the employee to the ailment or aggravation;
(d) any activities of the employee not related to the employment;
(e) any other matters affecting the employee’s health.
This subsection does not limit the matters that may be taken into account.
(3) In this Act:
significant degree means a degree that is substantially more than material.

In other respects, so far as is relevant for present purposes, the SRC Act remained the same before and after amendment.
Subsection 4(1) of the SRC Act defines “ailment” to mean “any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)”.
Subsection 7(4) of the SRC Act deals with determining the date of onset of an injury that is a disease or aggravation of a disease. The person is taken to have sustained the injury on first seeking medical treatment, or when first sustaining death, incapacity or impairment if that occurs earlier.
Section 14 of the SRC Act is the gateway provision for compensation within the Act’s legislative framework. It provides that liability to pay compensation arises in respect of an injury suffered by an employee if it results in death, incapacity for work or impairment (subject to exclusions not presently relevant). Later parts of the Act then provide for compensation to be paid in particular circumstances where specified criteria are met; in particular, section 16 provides for compensation for medical expenses, section 19 provides for payment where an injury makes an employee incapacitated for work, and section 20 provides for incapacity payment where the employee is retired and in receipt of a superannuation pension.
Subsection 16(1) of the SRC Act provides as follows:
Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.
Subsection 4(1) of SRC Act contains a definition of “medical treatment”. It includes (relevantly) medical or surgical treatment, by or under the supervision of, a legally qualified medical practitioner (paragraph (a)); or therapeutic treatment obtained at the direction of a legally qualified medical practitioner (paragraph (b)). Section 4(1) also defines “therapeutic treatment” to include treatment given for the purpose of alleviating an injury.
Section 19 of the SRC Act provides for compensation to be paid to an employee who is entirely or partly incapacitated for work. The amount of compensation is calculated taking into account the amount the employee’s normal weekly earnings and, where an employee is partly incapacitated, the amount the partly incapacitated employee is able to earn. The latter figure varies according to the employee’s circumstances, such as whether the employee was employed, sought employment, accepted employment that was offered, or undertook appropriate training or rehabilitation. Section 20 adjusts the compensation calculated in section 19 for an employee in receipt of a superannuation pension, applying a formula that draws on the amount that would have been calculated under section 19, had that section applied.
LAY EVIDENCE
From the outline of the issues set out above it is plain that a decision in this matter turns very much on the medical evidence. An additional element, however, arises from the introduction of the surveillance material, which was used by Comcare to throw doubt on Ms Priestly’s credit and, as she was the source of much of the subjective reporting about pain, on some of the medical evidence. Ms Priestly was examined and cross-examined at considerable length, including with respect to the surveillance material, and she subsequently supported her case with evidence from her husband and daughter.
Ms Priestly’s evidence
Witness statement
Ms Priestly provided a written witness statement, dated 17 July 2017 (Exhibit A2). In the statement Ms Priestly recounts her employment pathway leading up to her engagement as a payroll officer for ComSuper, and the accident on 7 March 2003, which led to her compensation claim. Ms Priestly had attended a training course and on leaving fell, injuring her knee; she subsequently developed a bruise on her hip. Ms Priestly stated that the pain arising from the injury, including to other parts of her body, was significant; her return to work was difficult and she found the workplace unsympathetic and even hostile. This continued for some time, and Ms Priestly stopped working at ComSuper in September 2005. Ms Priestly states that her experience at ComSuper during her various attempts at return to work has affected her permanently, with impacts on her family, her social life and her confidence generally. She reports continuing paraesthesia and burning in her feet; lower back pain radiating down her buttocks and into her legs; pain in the upper back, neck and shoulders; headaches; cramps in the calf muscles, the arches of the feet and the toes; weakness in legs, back and arms; spasms in the lower back; pain on movement, or sitting or standing for extended periods; muscular tenderness, sweating and an elevated heart rate; mood swings, disturbed sleep, feelings of worthlessness, distrust of others, avoidance of new places, people and experiences and an inclination to ruminate and dwell on things.
Examination-in-chief
Ms Priestly recounted her experience prior to joining ComSuper, describing a variety of workplaces and duties, and noting that she had had no injuries or workplace problems in any position up to the time of her accident, nor any complications from having three children. Ms Priestly also described in more detail the accident of 7 March 2003, saying that she had fallen on her left side and rolled onto her back, and found that her right knee was grazed and bleeding. At that time the pain was mainly in the knee, but by the time she saw her general practitioner, Dr Horsley on 10 March (7 March having been a Friday), her lower back was sore, she felt tingling from the lower back into the buttocks and down both legs to the toes, and she was stiff and found it hard to walk.
Dr Horsley prescribed anti-inflammatories and painkillers, but after about two weeks Ms Priestly said that the pain continued, with muscle weakness and sleeplessness. After about seven weeks Dr Horsley referred Ms Priestly to a pain specialist, Dr Speldewinde, for chronic pain treatment, and to a clinical psychologist, Ms Amanda Lucas. Ms Priestly participated in a pain management program run by Dr Speldewinde (Ms Lucas was part of the program), and subsequently saw other physicians, but she reported that at the end of 2004 she was no better than she had been shortly after the accident. During this period Ms Priestly had participated in return-to-work programs at ComSuper, some of which had involved duties that made her pain worse. Ms Priestly saw numerous doctors, some of them treating doctors, some of them conducting assessments for Comcare or ComSuper. Her condition was, from her perspective, largely unchanged over an extended period up to the assessments undertaken by Dr Gorman in 2015, although how she was on any given day varied considerably. Her pain was concentrated in the lower back and legs, but she also suffered pain sometimes in the neck and shoulders, headaches, muscle cramps and tenderness and the other symptoms set out in her witness statement.
Ms Priestly stated that taking care of her grandchildren (she has 13, or had 13 at the time of the hearing) does not imply that she is capable of working, because it does not involve the same kinds of pressure on her; she has support and help and can pace herself. A period taking care of her grandchildren will leave her in pain, often a great deal of pain, but the activity is more easily regulated and controlled than activities in the workplace that might appear similar in intensity.
Cross-examination
Mr Woulfe took Ms Priestly through a number of medical reports that described the accident of 7 March 2003 and/or Ms Priestly’s symptoms at the time of each consultation. Generally speaking, Ms Priestly was unable to recall the consultations and did not endorse the doctors’ records, on the basis that she could no longer recollect the information she had given each of the doctors she had seen. But on repeated questioning, she agreed that the symptoms described were all ones that at various times she had experienced.
Ms Priestly was also taken through some of the documentation recording aspects of her return to work in 2005. Once again Ms Priestly did not, in general, recall particular conversations as recorded by others at the time, but acknowledged some feelings of unfairness at that time.
Mr Woulfe also examined whether Ms Priestly made attempts to find alternative employment after leaving ComSuper. Ms Priestly made at least one such attempt while still at ComSuper, but was unsuccessful. She believed that personnel at ComSuper actively stood in her way on that occasion, and her need to obtain references from ComSuper would mean that she would always fail in such efforts. Opportunities in other industries (child care or nursing homes, where she had worked previously) were now no longer open to her because of her physical limitations. She acknowledged that she had not been active in seeking work since leaving ComSuper and had not made any effort since Comcare stopped paying compensation in 2016.
Video surveillance
The surveillance material comprised two distinct compilations, the first relating to the period from 5 to 15 April 2018 (Exhibit R12), including footage from seven of those 11 days, and lasting for a total of 35 minutes, after editing (to remove superfluous material). The video footage is accompanied by still photographs (11 pages), contemporaneous notes and a covering report dated 2 May 2018. The second tranche of material (Exhibit R13) comprises footage from the period 16 to 25 November 2018, totalling 50 minutes after editing, coming from seven of the ten days, and once again accompanied by still photographs (14 pages) and contemporaneous notes, and by a report dated 4 December 2018. The second report has brief redactions.
I issued an order under section 35 of the AAT Act prohibiting the identity of anyone appearing in the surveillance material other than Ms Priestly and her husband from being disclosed.
The surveillance material from April 2018 showed Ms Priestly engaged in a variety of activities, including driving, shopping alone, carrying shopping to her car, and visiting friends and family and interacting with them. The material from November 2018 showed Ms Priestly driving alone, with passengers and as a passenger herself; shopping and carrying her shopping to the car and stowing it; and refuelling her car. She also was captured attending to a toddler (her grandchild) and wheeling the child in a stroller around her neighbourhood.
Under cross-examination Ms Priestly acknowledged that at times she was able to drive, go shopping alone, push a supermarket trolley, carry her shopping and load it into her car, undertake extended trips as a passenger, push a stroller with a toddler in it and refuel her car. In doing so, at least some of the time she would move freely, walk without a limp, undertake some bending actions and generally fail to display overt pain behaviour. Mr Woulfe proceeded to show the surveillance material and ask Ms Priestly to explain or comment on the behaviour displayed in the footage. From time to time Ms Priestly agreed that she undertook particular actions freely or quickly, that she undertook various actions requiring bending, some of it moderately sustained, and other actions that involved carrying items of some weight, and that she walked without limping. In some instances Ms Priestly insisted that she was bending from the hips rather than the waist, or that her gait suggested that she was in pain as she walked.
In response to the surveillance material Ms Priestly said that after walking with her grandchild she was on the verge of collapse, and had to take painkillers, and go to bed with the electric blanket on to cope with the pain. Changing nappies also causes pain, but how much depends on other factors, such as what other activities have been undertaken that day and whether the day is in general a good or a bad day. Ms Priestly said that doing some shopping by herself was important in maintaining her independence, and not coming to rely on others to do everything for her.
Mr Priestly’s evidence
In his witness statement (Exhibit A2), dated 18 February 2019, Mr Priestly says that Ms Priestly had been active, energetic and sporty until the 2003 accident; that she did not seem to be badly injured on the day of the accident, but that from the next day she was much worse and in pain; and that the pain and limited mobility from the accident have remained with her since that time. She is still willing to do what she can, but doing household tasks or the shopping, or caring for her grandchildren, aggravate her pain. Her social life is more limited than before the accident. She can still take extended journeys in the car, but must medicate herself beforehand and use a back support.
In oral evidence Mr Priestly said that he can detect when Ms Priestly is in pain by seeing her wince or rocking herself backwards and forwards in a foetal position. She has suffered this level of pain over a long period, since the accident in 2003. With regard to shopping, generally Ms Priestly will undertake smaller shopping expeditions alone, but larger undertakings – shopping for the family for the fortnight – will be done by the two of them together and he will be the one carrying the heavy items and loading the car. The longer trip shown in the surveillance material was done because his sister in Wollongong was ill and expected to die. When they take a trip Ms Priestly will take medication to relax and will sleep much of the way; he stops the car about once an hour to allow her to stretch. In the past they used to take long motorcycle journeys together, but Ms Priestly cannot sustain the bumps and jarring because of her injury, so they no longer undertake such journeys.
Mr Priestly acknowledged that he attended only a proportion of his wife’s medical appointments, and that he had only an approximate recollection of her symptoms at any particular date; but he was clear that she suffered from the symptoms recorded, including paraesthesia, headaches, cramping, and widespread pain. He said that she looks after her grandchildren but that this does not involve having to lift them because they are of an age where they can get into the bath or climb onto a chair by themselves or with minimal assistance.
Ms Kelly’s evidence
Ms Chantel Kelly, who is Ms Priestly’s daughter, provided a written statement dated 18 February 2019. In that statement she notes that her mother had been very active but this changed after the accident in 2003, with she, her siblings and her father taking over duties that previously would have been Ms Priestly’s. She can tell from her mother’s behaviour whether she is in pain – how she walks, how she holds herself; when in pain she can become short-tempered. Ms Priestly does not sleep well, and Ms Kelly knows this because when she is up late herself with her baby and on social media she can see her mother also active on social media, and they exchange messages, with Ms Priestly often reporting that she is in pain. Ms Priestly likes to take care of her grandchildren, but is limited in what she can do on some occasions and on others is in pain after overdoing things while caring for them.
In oral evidence Ms Kelly said that since she has had children, Ms Priestly has taken care of them on a regular basis, but that there are numerous occasions when she cannot because of pain. There was a marked shift in Ms Priestly’s capabilities after the accident, but in the years since 2003 she has not noticed a very marked change in the state of Ms Priestly’s health. Ms Kelly acknowledged that she had not attended all of Ms Priestly’s medical appointments, and that although she was generally aware of Ms Priestly’s symptoms, she was not aware of some of the details or of the particular dates when those symptoms had been reported. She also agreed that her understanding of Ms Priestly’s condition was largely driven by what Ms Priestly reported about her pain.
Ms Kelly noted that when her children were younger it would have been necessary for Ms Priestly to change a nappy from time to time. This would have occurred on the floor or on a couch or bed. Little lifting would be required, as either the children could climb up themselves or, at an earlier age, they would have been very much lighter.
MEDICAL EVIDENCE
Medical evidence in this matter takes the form of the documentary record relating to Ms Priestly’s conditions; the reports provided by the expert witnesses; and the oral evidence of those experts, including the exchange of views in concurrent evidence.
The documentary record
Ms Priestly reported her fall on 7 March 2003, the day of the injury (T4). She lodged a claim for compensation on 25 March 2003 (T5 - the form is dated 16 March but appears to have been received on 25 March). That form reported the injury as “mechanical low back pain – sprain, possible L5S1, disc injury. Graze to knee”; with 10 March 2003 as the date of first medical treatment. The effects of the injury were described as “sore pelvis when walking & aching legs, same when sitting or laying. Pins & needles from waist down into both legs burning feet” [sic].
The statement that Ms Priestly provided with her claim (T5.1) says that:
…I fell down onto my left side. I immediately felt severe pain in my right knee which travelled down into my shin area. I grabbed my knee and rolled over onto my back. … When I reached home I noticed that I had severe pain to my knee, stiffness in my pelvis area, which hurt when I walked, sat and lay down. When I lay down I had pins and needles in my legs and feet and feet felt like they were burning. These symptoms are still present.
Dr John Horsley, Ms Priestly’s general practitioner, wrote a medical certificate dated 21 March 2003 (T78.1, folio 319) describing Ms Priestly’s injury as “mechanical low back pain, probably disc disruption”. On 1 April 2003 Comcare accepted liability for “lumbar sprain” (T7). A CT image of Ms Priestly’s lumbosacral spine, dated 8 April 2003 (T8) showed a small central posterior bulge at the L5/6 level with minimal contact with the left L6 nerve root (an additional lumbar vertebra was given the identifier L6). There were slight degenerative changes at the facet joints at L6/S1 and L5/6 levels. Dr Horsley’s subsequent certificates up to the beginning of June 2003 describe the injury as “lumbar disc prolapse” (T78.1).
An initial needs assessment was completed by Ms Jenny Kerr, a rehabilitation specialist from Incorporating Ergonomics; the assessment is dated 22 May 2003 (T9). This report states that Ms Priestly, on falling on 7 March 2003, experienced back pain “almost immediately”, with pins and needles down both legs. At that time Ms Priestly reported pain in the back, and in the right leg extending as far as the ankle, aggravated by extended standing, sitting and walking, and trouble sleeping. A home assessment conducted on 27 May 2003 and reported on 30 May 2003 (T10) noted Ms Priestly’s continuing symptoms and also that Ms Priestly was attempting to undertake most of her tasks as before but winding back on some because of her pain. An MRI scan of the lumbar spine, dated 17 June 2003 (T11), showed a shallow diffuse posterior bulge at L5/6 and a developmentally narrowed space at L6/S1, both without neural compromise; there were small posterior endplate osteophytes at L6/S1 but again without neural compromise. On 19 June 2003 Dr Horsley wrote a medical certificate identifying the injury as “lumbar disc injury, chronic pain state” (T78.1, folio 324).
On 18 August 2003 Ms Amanda Lucas, a clinical psychologist at Capital Rehabilitation, referred Ms Priestly (T13) to Dr Geoffrey Speldewinde, a rehabilitation specialist and pain physician at the same practice. Ms Lucas identified Ms Priestly as suffering from chronic pain and depression; as affected by “considerable psychosocial issues”; and as someone who lacked coping skills for dealing with her pain despite high self-efficacy rates. Ms Lucas thought that Ms Priestly would benefit from a pain management program. Dr Speldewinde sought Comcare’s approval for Ms Priestly’s participation (ST2, dated 9 September 2003), and Ms Priestly proceeded to undertake the program. Dr Speldewinde sought Comcare’s approval for psychological treatment (ST3, dated 18 March 2004) and on 26 March 2004 Comcare wrote to Ms Priestly (ST4) approving massage, psychological counselling for pain management, physiotherapy, continued consultations with specialists and her general practitioner, and medication.

Dr Speldewinde provided a report to Comcare on Ms Priestly’s progress (T16) dated 1 April 2004. He noted that Ms Priestly had completed a six week course in December 2003, focusing on coping strategies and on adaptive measures such as pacing and pain tolerance while increasing her physical activity. Dr Speldewinde also obtained a bone scan (T15) dated 13 January 2004, which noted some mild increase in uptake within the left lateral aspect of S1; he attributed this to residual bony bruising from the fall. He undertook some injections (right and left sacroiliac joints, right and left L5/S1 zygapophysial joints) but these were ineffective. He noted that Ms Priestly’s pain was centralising to her back in March 2004 but sometime later again involved her legs.
Over about the same timeframe Comcare sent Ms Priestly for two medico-legal assessments. The first was undertaken by Professor Robert Oakeshott, an assessor of permanent impairment, who provided a report dated 16 October 2003 (T14). Prof Oakeshott noted that Ms Priestly appeared to show “genuine lower back discomfort” during the consultation, and found tenderness to moderate pressure on both sides of the lower lumbar spine, but he could find to injury or condition that could explain those symptoms. His diagnosis was “alleged back pain for which no significant injury or condition has been identified on objective clinical examination and investigations”, and he concluded because of the simultaneity between symptoms and the fall, that there was a direct relationship between her condition and her employment. He expected a complete recovery.
The second medico-legal report is by Dr Peter Stevenson, a consultant physician (T17), dated 29 April 2004. Dr Stevenson identified Ms Priestly as reporting “widespread non-specific back pain”. He noted the level of emotional distress (greater at the consultation because of particular family circumstances at the time) and the references to distress and depression in the documentation. He stated that the fall in 2003, as described, could not have caused disc injury and that her scans were “pristine”, concluding that “Ms Priestly has had no substantive injury to her back and has no chronic pathology”. He saw the back pain as of psychosocial origin rather than from in injury. He could identify no “plausible causal relationship” between Ms Priestly’s continuing pain and her employment. Comcare sent these two reports to Dr Horsley (ST6, dated 2 September 2004), who, in a letter dated 13 September 2004 (T20), disagreed strongly with both Prof Oakeshott and Dr Stevenson, suggesting that they had formed conclusions without adequate evidence. Dr Horsley insisted that there were no stressors in Ms Priestly’s home life and that her injury and chronic pain state were a natural sequence in which the compensation and rehabilitation system itself played a part.
ComSuper sent Ms Priestly to a consultant occupational physician, Dr Virginia Pascall, who provided a report dated 6 September 2004 (T19). Dr Pascall’s report was focused on Ms Priestly’s path to rehabilitation and a return to work, but she did offer several comments on Ms Priestly’s situation more generally: that she showed high levels of anxiety and distress; that she suffered from a chronic pain syndrome; that the difficulties she was confronted with in the workplace were making her condition worse and would hinder a successful return to work; that her focus on her pain would be likely to exacerbate that pain; and that she was highly dependent on medication and should reduce her use of strong analgesia.
Comcare also sent Ms Priestly to a consultant psychiatrist, Dr Inglis Howe Synott, who provided a report dated 30 November 2004 (T22). Dr Synott noted that Ms Priestly reported having suffered psychological problems shortly after the accident – problems with sleep, moodiness, depression, concentration and motivation – but that these had largely resolved at the time of consultation, and he concluded that she was not currently suffering from a diagnosable psychiatric condition. Dr Synott reported Ms Priestly as suggesting that her earlier psychological symptoms arose from her rehabilitation provider’s suggestions that her physical symptoms were of psychological origin.
On 16 February 2005 Comcare wrote to Ms Priestly (ST11) suggesting that her compensation was no longer payable, in that her accepted condition of “lumbar sprain” had resolved, and that Dr Synott had identified no psychiatric condition. Dr Horsley wrote to Comcare in response on 14 March 2005, asserting that Ms Priestly continued to suffer from a lumbar sprain; and that her chronic pain state derived from that injury. Ms Priestly sought legal assistance, and a letter from Stacks with Snedden, Hall & Gallop (ST13, dated 22 March 2005) contests Comcare’s proposal to deny continuing liability. It appears that Comcare made a determination on 23 March 2005 to cease liability, and that Ms Priestly sought reconsideration of that decision; these actions are recorded in the reconsideration determination (see below) but documentation is not included in that provided by Comcare for the hearing.
On 13 July 2005 Ms Priestly’s legal representatives sent her to Dr Graeme Griffith, a consultant surgeon (ST14). Dr Griffith concluded (report at T25, dated 3 September 2005) that Ms Priestly had a chronic sprain of the lumbosacral interspinous ligament, with persisting lumbosacral myalgia, and an overlay of psychological factors. Any disc injury was now resolved or stable. In a frank and thorough review Dr Griffith endorsed the comments of Dr Pascall, mentioned “manifestations of abnormal pain behaviours and embellishment” and “significant inconsistencies”, and pointed to the role of introspection and psychogenic input in chronic pain syndromes. Dr Speldewinde and Ms Lucas also provided reports to Ms Priestly’s legal representatives (T26, T27). In a letter dated 19 September 2005 (T26) Dr Speldewinde describes Ms Priestly’s condition as “severe pain-related anxiety and depression related to her persistent lumbosacral chronic pain disorder with associated paraesthesiae and dysaesthesias into both lower extremities”. He attributes the condition entirely to the incident in March 2003. In a report dated 26 September 2005 (T27) Ms Lucas said that her provisional diagnosis for Ms Priestly (whom she had seen at that time for about 28 months) was “chronic pain with major reactive depression and anxiety”.
On the basis of the above material, on 16 November 2005 Comcare revoked the determination of 23 March 2005 and made a reconsideration determination (ST20, ST20.1) accepting continued liability for lumbar sprain, noting that liability for a psychiatric condition had never been accepted. The decision also noted that liability could not be extended to include a chronic pain syndrome, as “there are causative factors for the psychological component of this condition which are arguably excluded” under the SRC Act (with a reference to Ms Priestly’s failure to obtain a promotion as one such factor). Dr Horsley wrote to Comcare in response on 28 November 2005 (ST22), clarifying some of what he saw as causal factors in Ms Priestly’s chronic pain.
Comcare sent Ms Priestly to Dr Margaret Gibson, an occupational physician, for further review. Dr Gibson provided a report dated 17 January 2006 (T28), noting that Ms Priestly attributed her mechanical back pain to the fall, which might result from disc disruption, but that a non-physical diagnosis might be required. Accordingly, Ms Priestly saw Dr William Lucas, a consultant forensic psychiatrist, who provided a report to Dr Gibson dated 13 March 2006 (T31). Dr Lucas diagnosed an adjustment disorder with anxiety and depressed mood, suggesting that it was likely that she had earlier gone through a major depressive episode. Stressors included both the physical injury and associated pain, and the difficulties Ms Priestly faced on returning to the workplace. He also described her as suffering from “a pain disorder associated with psychological factors” and a general medical condition, with the psychological factors playing “an important role in the severity, exacerbation and maintenance of her pain”.
Comcare sent Ms Priestly to see Dr Geoffrey Stubbs, an orthopaedic surgeon, who provided a report dated 24 May 2006 (T33). Dr Stubbs was persuaded by physical examination and testing of Ms Priestly that she suffered from lumbosacral instability, which he suspected derived from an annular tear in one or more lower vertebral discs. He saw the condition as having a clear causal relationship with the fall sustained in March 2003, and estimated 10% whole person impairment under the Comcare Guide. Dr Stubbs provided a further report dated 28 June 2006 (T36), giving his assessment of Ms Priestly’s responses to a non-economic loss questionnaire. Dr Stubbs found Ms Priestly’s responses to be reasonable but inclined to exaggeration; in most cases he thought that a response one level down would be appropriate.
Dr Speldewinde disagreed with Dr Stubbs about the source of Ms Priestly’s lumbar pain. In a letter to Comcare darted 26 June 2006 (T35) he noted that she had responded positively to injections in the zygapophysial joints and also to bilateral lumbosacral injections; he recommended consideration of radiofrequency neurotomy. Dr Speldewinde wrote to Ms Priestly’s legal representatives on 21 August 2006 (T37) suggesting that Dr Stubbs’s report had led Comcare astray, and that there was no evidence on imaging of an annular tear at L4/5 or L5/S1. The June letter from Dr Speldewinde was forwarded to Dr Stubbs, who opposed the use of radio neurolysis (T38).
Ms Priestly also attended Dr Hugh Veness, a consultant psychiatrist, to whom she was referred by Dr Horsley. In a report date 16 June 2006 (T34), Dr Veness diagnosed a major depressive disorder and generalised anxiety disorder with panic attacks, with risk of suicide. The psychiatric condition arose from events in the workplace and from Ms Priestly’s pain disorder. In a clarifying letter dated 27 October 2006 (T39), Dr Veness confirmed that the sources of the psychiatric condition included the chronic pain and the inadequacy of treatment of it; the losses associated with the pain; and the poor management of her various return to work attempts. The date of onset was given at about July 2003. He also noted the chronic pain that Ms Priestly suffered and suggested that it exhibited the central sensitisation of nociception identified by Professors David Champion and Milton Cohen.
In December 2006 ComSuper, as Ms Priestly’s rehabilitation authority under section 36 of the SRC Act, sent her to two specialists, Dr Len Lambeth, a consultant psychiatrist, and Dr Peter Warfe, a Public Health Physician. Dr Lambeth, in a report dated 5 December 2006 (T40), diagnoses adjustment disorder with depression and anxiety and a pain disorder; the psychiatric condition results from the pain disorder and the failure to manage rehabilitation in the workplace. Dr Warfe, in a report dated 8 December 2006, diagnoses chronic lower back and left hip pain, with the lower back pain a chronic lumbosacral strain and left hip pain possibly coming from a torn gluteus medius muscle. Dr Warfe also notes the chronic pain syndrome.
Dr Stubbs saw Ms Priestly for a further consultation on 12 February 2007 and provided a report dated 14 February 2007 (T43). For this report, he had the advantage of seeing more recent reports including those of Drs Veness, Warfe, Lambeth and Speldewinde. Dr Stubbs’s view of Ms Priestly’s condition and its causation was unchanged from his earlier report.
In May 2007 Dr Horsley obtained new MRI imaging of Ms Priestly’s lumbar spine, sacroiliac joints, left hip and pelvis (T44, dated 16 May 2007). The radiologist reported no significant pathology in the lumbar spine (no central canal or foraminal narrowing), normal sacroiliac joints, and only minor issues in the hip and pelvis (minor trochanteric bursitis).
Dr Veness and Ms Priestly’s legal representatives (still at this point Stacks/Snedden Hall Gallup) referred her to Professor David Champion, who provided a report dated 31 July 2007 (T45). Professor Champion provided a diagnosis of “chronic multilevel lumbosacral spinal syndrome with deep somatic referred pain to the buttocks and lower limbs” with radiculopathy, especially at L5. He saw the lumbosacral injury as resulting from the fall, with the CT imaging taken in 2003 supporting his thesis that the nerve root was injured in the fall and was continuing to cause problems. He identified post-injury central sensitisation of nociception, but saw this as secondary to the lumbosacral injury. He also noted the psychosocial issues recognised by other doctors.
ComSuper was still exploring the possibility of rehabilitation in the workplace, and sent Ms Priestly to see Dr Nicholas Burke, a consultant occupational physician. Dr Burke’s report (T46, dated 21 August 2007) makes no mention of chronic pain; Dr Burke diagnosed a probable soft tissue injury of the lower spine and adjustment disorder with anxiety and depressed mood. It appears that Dr Burke saw the widespread pain reported by Ms Priestly as arising from the interaction between the two conditions.
There was a debate between Comcare and Ms Priestly during later 2007 and early 2008 regarding liability for Ms Priestly’s psychiatric condition. Comcare wrote to Ms Priestly on 19 September 2007 noting that no liability for a psychiatric condition had been accepted. In the exchange that followed Ms Priestly argued (through her legal representatives) that the psychiatric condition arose from an early period in the history of her injury and was entirely attributable to her pain condition (ST34, ST35, ST37); Comcare argued that the psychiatric condition had its origins in a workplace incident of 8 September 2005 and was independent of her compensable condition (ST33, ST36). In a reconsideration determination dated 26 March 2008 (ST38) Comcare deemed Ms Priestly capable of returning to work 25 hours a week and stated that any incapacity was from the incident on 8 September 2005 and not her compensable condition. Ms Priestly sought review, and in a consent decision dated 23 June 2008 (ST40) this tribunal set aside the decision of 26 March 2008; decided that Ms Priestly’s physical and psychological symptoms all arose from her compensable condition deriving from the events of 7 March 2003; that it was her physical condition that caused her incapacity to work from 9 November 2005 to 26 March 2008; that there was no separate psychological ailment causing incapacity for work over that period; and that during the period of incapacity the amount she was able to earn in employment (under subsection 19(4) of the SRC Act) was nil.
Much later ComSuper sent Ms Priestly to Dr Marcus Navin, an occupational physician. Dr Navin’s report, dated 30 June 2009 (T48), notes the absence of pathology in imaging (Dr Navin appears to have been without the benefit of the MRI scans at T44). He diagnosed a dysfunction of the pelvis, with locking of the left sacroiliac and the anterior superior component of the pelvis. He found no evidence of a regional pain syndrome and no evidence of abnormality of function. He further noted “some aspects of her behaviour which is inconsistent with normal pain processes” (sic) and concluded “there is no doubt that Ms Priestly has engaged or recruited abnormal illness behaviour to a more than significant degree”. Dr Navin thought that Ms Priestly did have an underlying pelvic problem, but that she had added complexity to the return to work process through adoption of “the sick role” and possibly because of an underlying personality disorder. He noted that she presented in his rooms with a limp, but that the limp disappeared as she walked to her car.
ComSuper further sent Ms Priestly to a consultant psychiatrist, Dr Graham George, who provided a report dated 3 December 2009 (T50). Dr George diagnosed a “pain disorder related to psychological factors and a general medical condition”; he noted the contribution from the injury in 2003 and the decreased level of functioning over the previous six years.
In late 2009 Ms Priestly’s legal representatives – at this time Lander and Co – referred Ms priestly to a consultant psychiatrist, Dr William Knox. Dr Knox’s report, dated 9 December 2009 (ST43), includes diagnoses of major depressive disorder and generalised anxiety disorder, and pain disorder associated with psychological factors and a general medical condition. He assessed Ms Priestly as having sustained a 25% impairment from her psychiatric condition. On 4 January 2010 Ms Priestly lodged a claim for compensation for her psychiatric condition and for permanent impairment and non-economic loss (ST44). Comcare sent Ms Priestly to Dr Robert Gertler, a consultant psychiatrist. Dr Gertler submitted a report, dated 18 April 2010 (T52) and two supplementary reports, dated 11 May 2010 (T53) and 1 June 2010 (T54). These reports diagnosed chronic adjustment disorder with depressed mood; identified the fall on 7 March 2003 as its origin; assessed permanent impairment at 20% from the psychiatric condition alone, entirely arising from work-related factors; and concluded that Ms Priestly was incapacitated for work. On 4 May 2010 Comcare wrote to Lander and Co (ST46), accepting liability under section 14 of the SRC Act for a secondary condition of chronic adjustment disorder with depressed mood, with a date of injury set at 19 November 2007, the date at which Ms Priestly purportedly first sought treatment for the condition. On 29 July 2010 Comcare wrote again to Lander and Co (ST48), determining that Ms Priestly’s whole person psychological impairment was 20%; and further determining an entitlement of $31,847.21 under section 24 of the SRC Act and $18,312.16 for non-economic loss under section 27 of that Act.
In late 2010 ComSuper sent Ms Priestly for further assessments, by Dr Farnbach and by Dr Blair Christian, a consultant occupational physician. Dr Farnbach, in a report dated 2 December 2010 (T56), diagnosed Ms Priestly as suffering from a major depressive disorder and chronic pain, at a moderate level, and agreed with Dr Gertler’s reports from earlier that same year. Dr Christian, in a report dated 3 December 2010 (T57), diagnosed chronic neuropathic pain, also described as a regional pain syndrome, affecting in particular the lumbar spine and lower limbs. He noted altered sensation and allodynia in the lower limbs. He thought that Ms Priestly could work at perhaps half hours, although not at ComSuper.
Ms Priestly retired from ComSuper on invalidity grounds on 27 May 2011 (T59).
On 13 May 2012 Ms Priestly obtained an MRI report on her lumbar spine (Exhibit A9). The report noted no significant lumbar pathology; there were disc bulges at L4/5 and L5/S1, but no foraminal compromise of the nerve roots. Mild degeneration of the facet joints was noted at L4/5. On 1 April 2015 Ms Priestly had further MRI imaging of her lumbar spine (T60). This scan identified minor degenerative change at the L4/5 and L5/S1 discs; widespread mild to moderate lumbar facet joint osteoarthrosis; and possible or potential nerve root compromise of the exiting left L5 and S1 nerve roots at L4/5 and L5/S1.
In August 2015 Comcare sent Ms Priestly to Dr David Gorman, a consultant general physician, pain management specialist and medical oncologist. In Dr Gorman’s report, dated 2 October 2015 (T63) he diagnosed fibromyalgia syndrome and minor lumbosacral degenerative disease, noting the diagnoses relating to depression and anxiety. He did not believe that Ms Priestly’s ongoing widespread pain could be related back to her 2003 lumbosacral injury, or that there was any connection between her physical ailments and her employment. He opposed continuation of the passive treatments Ms Priestly had been receiving (Feldenkrais, massage, chiropractic). He believed that Ms Priestly could undertake a rehabilitation program and could return to work with the right conditions and supervision.

On 11 November 2015 Comcare wrote to Ms Priestly (T65) advising of an intention to cease payments for massage, chiropractic and Feldenkrais treatment. There followed an exchange in which Ms Priestly (who no longer had legal representation), her massage therapist and her Feldenkrais practitioner argued for continued treatment. On 25 July 2016 Comcare wrote again to Ms Priestly (T70) advising of an intention to cease liability for compensation under sections 16 and 19 of the SRC Act. On 22 August 2016 Comcare decided to cease liability (T71). Ms Priestly sought reconsideration, and on 13 December 2016 Comcare made a reconsideration determination (T76) affirming the decision of 22 August 2016 (and correcting the reference to section 19 of the SRC Act to a reference to section 20).
On 27 January 2017 Comcare wrote to Ms Priestly announcing an intention to determine no present entitlement with regard to her psychiatric condition (2017/3173, T5). Ms priestly objected (3173, T6), but on 1 March 2017 Comcare proceeded to determine that liability had ceased (3173, T7) and following a request for reconsideration, to affirm the decision on reconsideration on 8 May 2017 (3173, T11).
In the period immediately before and after Comcare’s decisions Ms Priestly undertook a further investigation. A report by Dr Ralph Mobbs, a neurosurgeon and spine surgeon (Exhibit A7), making use of the MRI of April 2015 and an assessment by the Neurospine Clinic (Exhibit A6), concluded that Ms Priestly presented with L4/5 disc and facet joint pathology. Dr Mobbs identified an L4/5 annular tear. He did not think surgery was indicated but concluded that Ms Priestly should return to pain management therapy.
The evidence of the expert witnesses
Three of the five expert witnesses - Dr Knox, Professor Champion and Dr Gorman - had prepared reports that form part of the documentary record summarised above: (their reports are respectively at ST43, T45 and T63). Each of the five experts also provided one or more reports that appear among the hearing documents as exhibits.
Professor Champion
Professor Champion provided a report dated 29 September 2017 (Exhibit A5) and a supplementary report dated 10 March 2019 (Exhibit A6). In the report of September 2017 Professor Champion, on the basis of an examination, the history reported to him and the documentary record, concluded that Ms Priestly continued to suffer from a chronic pain syndrome of the lumbosacral spine, with widespread pain; there was also pain in both hips; the original knee injury was completely resolved; and there was extended, widespread central sensitisation. Professor Champion took issue with Dr Gorman’s diagnosis of fibromyalgia, suggesting that it was “obfuscating” in the sense that it implied an idiopathic aetiology; Ms Priestly had met the criteria for fibromyalgia since he had first seen her in 2007, but in her case there was a post-traumatic explanation for the appearance of symptoms.
Professor Champion was asked to comment on the surveillance material. He provided a brief supplementary report (Exhibit A6, dated 10 March 2019) noting that he had been unable to open and view the video material, but had looked at the still photographs and read the report. He saw no reason to change his earlier opinion, as Ms Priestly was not observed in any activity that she had said she was unable to perform.
In oral evidence Professor Champion provided a detailed and specific diagnosis that is the same as, and encapsulates, his earlier diagnostic findings: chronic multi-level lumbosacral pain disorder widely distributed linked to referred pain and somatosensory test abnormalities indicating central sensitisation, residual L5 sensory radiculopathy underlying post-traumatic and mainly degenerative pathology at L4/5 and L5/S1, left greater trochanter syndrome with minor underlying trochanteric bursitis. He added that Ms Priestly also had a pain disorder, mainly in her lumbosacral spine, but extended to a more widespread pain disorder, including headaches and meeting the criteria for fibromyalgia syndrome. He also referred to a psychiatric diagnosis. He disagreed with the diagnostic approaches of Professor McGill and Dr Gorman, arguing that the progression from the initial 2003 injury to a pain syndrome in the early years, with a significant overlay of psychosocial issues, sat illogically with their outline of a course of events which saw the early symptoms resolve and a new pain-related disorder arise. Professor Champion was of the view that Ms Priestly was incapacitated for work as a result of her conditions arising from the 2003 incident.
Mr Woulfe pressed Professor Champion to acknowledge that his conclusions were not based on objective observations and tests. Professor Champion disagreed, arguing that the neurological somatosensory tests he conducted were reliable guides to a patient’s pain responses, had been widely published and were recognised internationally in pain medicine circles. Professor McGill disagreed, suggesting that the tests by Professor Champion relied unduly on subjective reporting by the patient, and that the results were inconsistent with some of the behaviour visible in the surveillance material.
Professor McGill
Professor McGill provided a report dated 11 January 2018 (Exhibit R3) and a supplementary report dated 17 February 2019 (Exhibit R4). In the January 2018 report he concluded that Ms Priestly had suffered knee grazing and lumbar muscle strain in the 2003 fall; MRI imaging from later dates showed that there was nothing beyond normal, minor, widespread degenerative change in the spine; and that her activities taking care of her grandchildren were more demanding physically than desk-based work with the opportunity to stand and walk around. He acknowledged that she met the criteria for fibromyalgia but was unable to separate the symptoms presently reported from those reported soon after the fall. She was fit to undertake duties similar to those of her work before the injury.
Professor McGill provided a supplementary report after viewing the surveillance material. In that report he confirmed that in his view Ms Priestly did not suffer from a physical injury sufficient to prevent her from working. He did not see signs of distress or unhappiness, and concluded that her day-to-day activities were at least as demanding as the work activities she might be expected to undertake.
In oral evidence Professor McGill confirmed his view that Ms Priestly no longer suffered from a physical disorder. He believed that, especially given the evidence from the surveillance material, Ms Priestly was capable of working along the lines of her previous employment. On being pressed by Mr Grey, Professor McGill said he thought that from quite soon after the initial accident there was no residual physical injury, as noted in reports by, for example, Dr Oakeshott and Dr Stevenson. As suggested by Dr Pascall, her willingness to work was the product of her motivation and frame of mind. She was not prevented by any physical injury, either then or now.
Dr Gorman
In addition to the report at T63, Dr Gorman provided four further reports, tendered at the hearing: a supplementary report dated 4 April 2017 (Exhibit R5), and a further report dated 5 July 2017 (Exhibit R6); and further supplementary reports dated 12 December 2018 (Exhibit R7) and 25 February 2019 (Exhibit R8). In the first of those reports Dr Gorman stated that he did not change his view after reading Professor Champion’s report of September 2017. He felt that he could not draw the conclusion that Ms Priestly’s pain condition derived from the 2003 incident, having examined her some 12 years after that event. There had been changes to her pain condition, to her opiate intake, and she had not worked over those 12 years. In his report of July 2017 Dr Gorman (in response to questions asked in the briefing letter) explored the difference between fibromyalgia and chronic pain syndrome, as diagnostic terms. In his view, fibromyalgia was a well-defined term with clear criteria, whereas chronic pain syndrome was simply a descriptive term with no formal recognition as yet. Further, where chronic pain syndromes are diagnosed, the pain is usually associated with particular locations rather than being widespread. Dr Gorman also reiterated his view that the widespread nature of the pain made it more difficult to link the current condition to the lumbar injury in 2003; in turn, that made fibromyalgia a preferred diagnosis.
In his report of December 2018 Dr Gorman repeated some of his earlier conclusions and provided comment on the application of the document widely adopted by compensation authorities in Australia, the Clinical Framework for the Delivery of Health Services. In his report of February 2019 Dr Gorman provided comment on the surveillance material, stating that the material did not lead him to change his conclusions about Ms Priestly, who did not suffer from a disabling condition derived from employment and was not incapacitated for work.
In oral evidence Dr Gorman repeated his view that the initial physical injury in 2003 resolved quite quickly, but that she subsequently developed a fibromyalgia syndrome with widespread pain and tenderness. There were too many supervening factors – physical, psychological and social – to be able to link this condition back to the original injury. She would benefit from multidisciplinary treatment for her pain condition but that treatment would not relate to her earlier employment. As for the aetiology of the fibromyalgia, that condition likely had multiple causes, with the fall in 2003 playing only a miniscule role. Ms Priestly was not prevented from working by either her fibromyalgia or her psychiatric condition. He noted that his experience with patients suffering from chronic pain convinced him that Ms Priestly was not affected by pain of any severity when appearing in the surveillance material. People affected by pain behave in particular ways to manage or minimise that pain, and she was clearly not doing so.
Dr Knox
Dr Knox provided a report dated 5 June 2017 (Exhibit A4), in which he confirmed his earlier diagnosis of chronic major depressive disorder and generalised anxiety disorder, moderate severity. These are the result of pain and of her failure to be able to return to work. She should continue to receive psychiatric treatment, and there is significant interplay between her physical and psychiatric disorders.
In oral evidence Dr Knox confirmed his diagnosis and stated that it continued up to the present, although he acknowledged that in light of fluctuations in severity a diagnosis of adjustment disorder with anxious and depressed mood, as arrived at by Dr Lovell, was reasonable. Dr Knox conceded that it might be possible in a psychological context for Ms Priestly to attempt a return to work at some level, although he suspected that such an attempt was unlikely to succeed, because of her psychiatric condition among other factors. With regard to the surveillance material, he said that it was difficult to draw conclusions about a person from brief and selective material, but that clear contradictions between what was asserted by a person and their behaviour under surveillance would enable conclusions to be drawn about the truthfulness of a person.
Mr Grey pressed Dr Knox regarding whether the psychiatric condition had taken on “a life of its own”, separate from the pain condition from which it originally arose. Dr Knox’s answer was somewhat equivocal.
Dr Lovell
Dr Lovell provided a report dated 9 August 2017 (Exhibit R9) and two supplementary reports dated 3 November 2017 (Exhibit R10) and 28 February 2019 (Exhibit R11). In the initial report Dr Lovell diagnosed an adjustment disorder with anxiety and depressed mood. He noted the fluctuations in Ms Priestly’s mood and that she had improved in psychological outlook over time, with family relations (especially with regard to grandchildren) making a major contribution, but noted the continuation of psychiatric symptoms. She should continue to receive psychiatric treatment (cognitive behaviour therapy). In his supplementary report of November 2017 Dr Lovell stated that Ms Priestly’s witness statement and Professor Champion’s report did not lead him to alter his views. After viewing the surveillance material Dr Lovell provided the final supplementary report of February 2019. He stated that he had altered his views after seeing the material. Ms Priestly was clearly capable of more than she had stated in her consultation with him. She was not showing any pain behaviour, and yet she had told him that her major complaint contributing to her mood issues was pain. She had said she did not shop alone, yet the footage showed her doing so. Any psychological symptoms she may have suffered do not interfere with her activities to the extent that she reported.
In oral evidence Dr Lovell repeated his diagnosis of chronic adjustment disorder with anxiety and depressed mood, noting that the criteria for major depressive disorder were not met. He agreed that this condition persisted to the present. There were also illness behaviours apparent. Ms Priestly would benefit from further treatment in the form of a limited number of sessions of cognitive behaviour therapy. From a psychological point of view she would be capable of a partial resumption of employment, although there are a number of non-medical issues that could make such a process difficult. Her incapacity to work largely results from pain.
Mr Grey questioned Dr Lovell (as he had Dr Knox) regarding whether Ms Priestly’s psychological condition had taken on “a life of its own” separate from her pain condition. Dr Lovell’s response was that it had not: her psychological diagnosis was linked to her pain condition. Mr Woulfe pressed Dr Lovell to accept that if Ms Priestly’s physical condition in July 2016 did not derive from her employment with ComSuper, then neither did her psychiatric condition. Dr Lovell agreed with that proposition.
THE ARGUMENTS OF THE PARTIES
Ms Priestly’s case is that she suffered an acute injury from her fall in March 2003; with subsequent development of a chronic pain disorder (if expressed in various different terms) and a psychiatric condition. Her contention is that the medical evidence shows that these conditions have continued up until the date of the decision under review and beyond. The compensation granted to Ms Priestly should continue. Ms Priestly remains unable to take up employment, even part-time.
Comcare’s case has several alternative lines of argument:
a)first, Mr Woulfe contends that Ms Priestly’s chronic pain condition is excluded from compensation because the condition does not amount to more than a subjective feeling on Ms Priestly’s part, of being unwell; for compensation to be payable there must be a physical or psychiatric change that bears the necessary connection with employment. That contention is put with the authority of Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468, supported by Singleton and Comcare [2018] AATA 4088.
b)Comcare’s physical experts should be preferred as witnesses to Professor Champion. Neither of Comcare’s experts found Ms Priestly to have a medical condition connected with her employment at ComSuper.
c)Drs Knox and Lovell agreed that Ms Priestly’s psychological condition was linked to her pain condition; if the latter is no longer compensable, then neither is the former.
d)Ms Priestly’s evidence is “lacking in reliability or ‘genuineness’” and fails to provide an adequate basis for the tribunal to make relevant findings of fact.
e)In the alternative, Ms Priestly was no longer sufficiently affected by her conditions that she was entitled to compensation for medical treatment or incapacity at the date of the decisions under review.
CONSIDERATION
A number of issues require resolution or explanation before proceeding.
Ms Priestly’s psychiatric condition and its causation
Turning first to Ms Priestly’s psychiatric condition – however diagnosed – it is important to state the basis on which the claim regarding the condition was made. It is not a matter of dispute between the parties that Ms Priestly’s psychological condition was claimed as deriving entirely from her pain condition and not from her treatment in the workplace. The documentary record suggests that it might have been open to Ms Priestly to make her claim on the basis that both the workplace and her pain condition made a contribution of the requisite materiality, but that is not how the claim was pout to Comcare.
The tribunal’s consent decision of 23 June 2008 (ST40) explicitly states that “all of the Applicant’s physical and psychological symptoms … are part of her accepted compensable ‘chronic pain syndrome’ … “. The application by Ms Priestly’s then legal representatives for her psychiatric condition to be added to her claim, dated 4 January 2010 (ST44), is made on the basis that her psychiatric disorders flowed from her physical injuries. The acceptance of liability by Comcare (ST46, dated 4 May 2010) quotes the opinion of Dr Gertler from his report of 16 April 2010 (T52), to the effect that this kind of condition: “develops on the basis of a stressor, in this case the fall and its physical sequelae which she sustained in 2003 but which was further aggravated by what Ms Priestly perceived to be an unsympathetic and unhelpful rehabilitation process”. Despite Dr Gertler’s recognition of a role for the workplace in causing Ms Priestly’s condition, the claim was made entirely on the basis of the physical injury.
The case law establishes very firmly that although some leeway is allowed in how a claim should be construed, at first and later on review, it is nevertheless not open to an applicant to submit a claim on one basis and subsequently to attempt to recast the claim on a different (and advantageous) basis: Abrahams and Comcare [2006] FCA 1829; Comcare v Muir [2016] FCA 346. Comcare is entitled to deal with the claim as made. Neither of the parties made submissions seeking to amend the basis on which the psychiatric condition was claimed, and the tribunal’s jurisdiction on review is accordingly limited to the claim as presented and pursued.
A timing issue
As noted above, Comcare’s case is not that Ms Priestly’s conditions were never caused by her employment. Comcare is not contending that as of 22 August 2016 Comcare’s liability came to an end on the basis established by Telstra Corporation Ltd v Hannaford [2006] FCAFC 87 (Hannaford); rather Comcare argues that Ms Priestly’s physical condition at 22 August 2016 did not display the requisite connection with employment, and it is causation at the date of that decision that must therefore be established. Similar considerations apply to the psychiatric condition: the decision under review concludes that liability had come to an end at 1 March 2017. But in order to establish causation at the time of these decisions I am obliged to examine the evolution of the conditions up to the critical dates. That requires that I take account, therefore, of the experts’ views about original causation.
The relation between the physical and psychiatric conditions
If Ms Priestly’s psychiatric condition first arose and presently continues entirely on the basis of her pain condition, then it follows that if the pain condition has resolved the psychiatric condition has also resolved or otherwise falls away. That is the logical outcome unless the expert evidence leads to the conclusion that the psychiatric condition could be expected to persist even if the pain resolved. This was put to Dr Knox and Dr Lovell, especially by Mr Grey on behalf of Ms Priestly. Dr Lovell plainly denied that the psychiatric condition had “a life of its own”, and I understand that to be a denial of the proposition that in the absence of pain Ms Priestly would continue to suffer a diagnosable psychiatric condition. Dr Knox’s response was a little more equivocal. I understood him to say that the physical pain condition and the psychiatric condition were bound up together:
Probably the psychological illness has taken on some sort of life of its own, but it’s never, as far as I know in this case, been separate from chronic pain and restrictions in her personal .life associated with that pain (Transcript, 26 March 2019, P-219).

There was an attempt by Counsel on each side to obtain a precise medical measure of Ms Priestly’s departure from her claimed condition. This related to Professor McGill’s suggestion that Ms Priestly’s ability to bend over to attend to her grandchild, as shown in the surveillance material, was at odds with results of straight leg raising tests obtained by Professor Champion. Professor McGill asserted that Ms Priestly demonstrated an ability to maintain a posture for up to two minutes with her back bent at 90°. Mr Grey took issue with this assertion in his final submission, insisting that the period involved was much shorter (only two seconds with straight legs) and that there were changes in posture, the use of bent knees, and the like visible in the surveillance material. I am not persuaded either by Professor McGill or by Mr Grey; I do not think that a person’s behaviour in the real world, away from the controlled conditions used for such tests in a doctor’s rooms, is a reliable comparator with test results in the way attempted. Nevertheless the degree of bending Ms Priestly undertook, and the apparent lack of difficulty in doing so, does call into question the severity of her condition.
Mr Priestly and Ms Kelly, in their statements (Exhibits A2 and A3 respectively) and also in their oral evidence, stated that Ms Priestly does her best to undertake normal activities despite the pain those activities might cause; that she is unable to undertake particular activities from time to time (shopping, care of the grandchildren) because of pain; and that following such activities as she does undertake she is often in more extreme pain, necessitating analgesia and periods of rest; and that the pain often interferes with her sleep. Ms Kelly said that she can tell when Ms Priestly is in pain from how she walks or holds herself (Exhibit R3 at [7], transcript at 184.15-16). This evidence offers general support, but it must be discounted to some extent as the evidence of members of the applicant’s family. Further, it remains difficult to accept that a person who would be in so much pain that she would need to assume a foetal position and rock herself back and forth, as attested to by Mr Priestly (Exhibit R2 at [12]), would give no indication whatsoever of being in pain on the surveillance material. Ms Priestly herself said that she could tell on watching the surveillance material that she was in pain by the way she swayed her hips (Transcript at 147.45-47), but I found that evidence unpersuasive and self-serving.
On a number of occasions in the early years following the initial 2003 incident an examining doctor was asked whether Ms Priestly’s reported symptoms were genuine. Even those doctors who questioned whether she continued to suffer from any injury (e.g. Dr Oakeshott, T14, Dr Stevenson, T17) noted Ms Priestly’s distress and declined to suggest that her pain was other than genuine. Somewhat more recently, in 2009 Dr Navin noted that Ms Priestly walked with a marked limp while under examination but did not do so on crossing the car park following the consultation (T48). Yet even he appears to have been reluctant to draw a conclusion that she was other than genuine. His formulation was that some aspects of her behaviour were inconsistent with normal pain processes, and that there was a significant psychological overlay – a comment which appears frequently in the reports.
I am loth to conclude solely on the basis of the surveillance material that Ms Priestly is exaggerating her pain condition, for all the reasons Mr Grey advances, as well as because the amount of time for which the material runs, and the circumstances of its collection, make it of variable quality for the purpose. Nevertheless, it does appear to show Ms Priestly as significantly less affected than one might otherwise expect; I am left with a very significant question mark regarding Ms Priestly’s credit. Mr Woulfe suggested that Ms Priestly’s evidence should be regarded as “unconvincing and unpersuasive”, and noted the conclusion of DP Humphries in Mitchell and Military Rehabilitation and Compensation Commission [2017] 161 ALD 518 that such evidence could not satisfy the causation test in the legislation. Apart from the caution I have just expressed, a further reason for declining to reason as Mr Woulfe suggests is that so many doctors over so many years have identified Ms Priestly with the condition for which she has been compensated; their evidence must have some weight, and they evidently did not find Ms Priestly unconvincing and unpersuasive. And the surveillance material dates from 2018; I hesitate to draw a conclusion about original causation in 2003 from footage collected 15 years later. Present causation, as explored below, derives in large part from the continuity of symptoms over the period since the initial accident. The surveillance material may throw light on the existence and severity of the pain condition but its usefulness in determining causation is limited.
The diagnosis of Ms Priestly’s condition
In terms of the decision-making path under the SRC Act, the question of diagnosis of a condition is not determinative, although the central questions of causation are often easier to decide if a diagnosis is clear. But for present purposes the attachment of a diagnostic label to Ms Priestly’s physical condition does not carry any implications for causation, which is separately addressed below (the difference between the diagnoses by Dr Gorman and Professor Champion, which relates mainly to aetiology, is therefore not one I need to pause unduly over at this point). The attachment of a label is also to be understood within the context of the uncertainties attached to Ms Priestly’s credit, as explored above.
I am left with two experts – one from each party – who make a similar diagnosis, and a third expert who can identify no physiological injury. This evidence comes forward in the context of a documentary record showing that a wide variety of doctors over a long period of time have found Ms Priestly to have a physical injury, even if a number have also had a question about the nature and extent of that injury, and about various inconsistencies in the history and symptomatology. I also need to take account of a five year gap in the record of detailed examinations from 2010 to 2015. All three of the doctors who gave evidence presented their opinions professionally and, as noted above, if they advocated their particular professional opinion, it seems to me that all three did so with approximately equal fervour. My preference is to give greater weight to the diagnostic conclusions of Dr Gorman and Professor Champion: those two opinions coincided reasonably closely, and were also aligned with the great weight of earlier evidence; that is added to by Professor McGill’s comment (in his report of 11 January 2018, Exhibit R3) that he was unable to separate Ms Priestly’s symptoms when he examined her from those she had reported soon after her initial accident.
I note too that the point at which I have arrived, of accepting a chronic pain condition while recognising remaining questions about possible exaggeration and embellishment, about inconsistencies in symptomatology, about severity, and about the role of a psychological overlay, are all typical of this kind of condition: see the summary relating to “fibromyalgia and chronic pain syndrome” in Freckelton and Selby, Expert Evidence: Law, Practice, Procedure and Advocacy, Fifth Ed, Lawbook Co, 2013 at [9.5.120] and cases cited therein (I have not relied on this wider history in arriving at my conclusion, but simply note that my conclusion is by no means an outlier).
The diagnosis of “chronic pain syndrome” is a longstanding one; it appears in much of the documentation, is well understood and, for the reasons earlier explained, carries with it, for my purposes, no causal baggage. That is therefore the diagnostic label I would attach to Ms Priestly’s pain condition, having previously concluded that no separate diagnosis of a separate continuing back injury is warranted.
Was Ms Priestly’s chronic pain condition at the date of decision contributed to, in a material degree, by her employment?
From the documentary record it is clear that Ms Priestly’s original injury of March 2003 met the definition of “injury (other than a disease)” – it was an acute injury (an “injury (in the primary sense of the word)” to use the High Court’s characterisation in May) that arose out of or in the course of employment. The chronic pain condition that appeared a few months later (the accepted date of injury is 19 June 2003, when Dr Horsley first identified it in a medical certificate) fits rather better the definition of “ailment”, as noted above. The causation test for an ailment at that time was that it was contributed to, in a material degree, by the employee’s employment. The chronic pain condition, however, was a sequela to the back injury, and so as a secondary condition its causation is tied not to employment per se but to the work-caused back injury from which it is purported to have derived. It does not appear to be contested, and it is more or less universally the opinion of every doctor associated with the case in the early years, 9that Ms Priestly’s pain condition resulted unequivocally from her back injury; it therefore met the requisite test of causation. I find that her pain condition was a disease under the SRC Act.
The question whether that causation continues up to the present time is a more difficult one to answer. There appears to be no doubt that for a sustained period after 2003 Ms Priestly had a difficult time; a number of doctors commented on her distress, which appeared to be focused on her failure to recover from her initial injury, which was of the kind not expected to cause a continuing problem (e.g. Dr Oakeshott, T14, f 39; Dr Speldewinde, T16, f 47; Dr Stevenson, T17, f 53; Dr Pascall, T19, f 69), although some of her distress at that time was focused on events in the workplace associated with her return to work. But a succession of doctors saw her and recorded her widespread pain and her distress.
The submissions put for Ms Priestly focus closely on the continuity of her symptoms from the early period of the injury until the date of the decision and beyond. The point is that if the condition was found to have the necessary connection with employment when it first arose, and if it has continued without change up to the present, how can it be that it no longer has any connection with employment, or has been replaced by another condition? Where is the discontinuity?
One part of Comcare’s response has been to contend that the continuity of symptoms has been exaggerated, and that Ms Priestly’s reported symptoms through the years have in fact shown significant variation. As an example, Ms Priestly reported to Dr Oakeshott that she had no symptoms in her lower legs; and she described her symptoms in varying terms to different doctors in the years that followed. I do not accept Comcare’s contention on this point. There is certainly some variation in Ms Priestly’s reported symptoms, but in my view not beyond what might be expected from someone reporting an ongoing condition but in terms reflecting how they felt on any given day. Anything more consistent might even have excited suspicion that what was being reported was a formula rather than the symptoms actually perceived at the time. I might add that this view seems to have been that of Professor McGill, who noted in his report (Exhibit R3) “I am unable to separate her current symptoms from the symptoms that she reported soon after the fall. The pattern of behaviour and symptom reporting appears to have remained similar since 2003.”
But there are nevertheless questions regarding the continuity of symptoms. In the first place, it is an inarguable element in the record that questions about the consistency of Ms Priestly’s reporting were recorded from an early stage: Dr Oakeshott (T14) and Dr Stevenson (T17) could not find any objective basis for her pain; Dr Pascall noted marked differences between what Ms Priestly could do during tests and what she could do unconsciously (T19, f 69); Dr Griffith reported “abnormal pain behaviours and embellishment” (T25, f 101); Dr Navin noted that some aspects of her behaviour were “inconsistent with normal pain processes” and also observed, as noted above, an inconsistency between her limp in his surgery and on returning to her car (T48, f 210).
It is fair to say that virtually every examining doctor noted that there was a psychological element in Ms Priestly’s condition. This was characterised in different ways, with some doctors convinced that medicalisation of her injury would lead to worse outcomes; some focused on the difficulties involved in the rehabilitation process and return to work; while others confined themselves to noting the psychological overlay in the chronic pain condition.
The record does not suggest a complete absence of change. Ms Priestly’s prescribed and over-the-counter medications, for example, have shown significant variation. In the early years she mostly used a variety of analgesics and anti-inflammatories, an antidepressant and a relaxant or an alternative to help her sleep. Some of the analgesics were prescription opioids such as oxycodone and others, such as gabapentin, appear to have been aimed at neuropathic pain. In 2006 Ms Priestly reported to different doctors that she had stopped taking opioids and some kinds of antidepressants, on one occasion because of a respiratory illness (Dr Stubbs, T33, f 137), on another because of a gastric upset (Dr Warfe, T421, f 169). Dr Navin noted in 2009 (T48, f 210) that there was a “dissonance” between Ms Priestly’s stated symptoms and the “minimal amount of medication” she was taking. But a survey of records from her general practitioners, in the years 2010-2015 (Exhibits R1 and R2), when Ms Priestly had left the workforce and was no longer being sent for medical assessments by her rehabilitation authority, shows that she continued to take quite strong medications, with opioids such as hydromorphone and oxycodone appearing, as well as a brief prescription for fentanyl. Those records also show that she continued to report very similar symptoms to her general practitioners as she had previously.
Dr Gorman put the thesis that a pain condition – fibromyalgia - developed in the period after the initial fall in March 2003, with aetiology unassociated or only associated to a minor degree with the incident itself. The only other contributing factor that Dr Gorman identified was the difficulty Ms Priestly faced in returning to the workplace (Transcript 255.11-26). Assessing this thesis presents an evidentiary challenge. If I am to accept that other factors have led to the development of the condition, those other factors would surely need to be identified. Yet the chronic pain condition was diagnosed quite early in the process; Comcare accepted liability from 19 June 2003, when Dr Horsley issued a medical certificate with that diagnosis included. Indeed the condition was apparent from even earlier, with an initial needs assessment for rehabilitation purposes carried out on 24 April 2003 (T9) noting the widespread reported pain (that, of course, is not a report by a medical specialist). The initial needs assessment recommended a return to work starting on 26 May 2003, so Dr Horsley’s diagnosis was made when Ms Priestly had been back at work for perhaps three weeks. This was well before the reports of bullying and the difficulties of the return to work process appear in the documentary record.
It appears from Dr Gorman’s evidence that what has led him to his conclusion is not positive evidence for the condition he has identified, but rather a lack of evidence, in his view, for the long-term causal path implicit in a continuation of the original condition. I find myself unpersuaded by his evidence. I cannot see any significant difference between his diagnosis and that of Professor Champion, and at least Professor Champion can point to a pathway by which earlier events lead up to the present state of the condition. Dr Gorman has not pointed to any alternative path that is borne out by the available records.
I note in Comcare v Power [2015] FCA 1502 the remarks of Katzmann J (at [69]-[71]) that in a decision such as this, in order to decide that Ms Priestly’s compensation should no longer continue, I must be satisfied that at least one of the originally entitling circumstances has ceased to exist. I am not so satisfied. As noted, there are question marks against Ms Priestly’s conditions – references to embellishment, to exaggeration, to inconsistency, and surveillance material that calls her credit into question. It is therefore somewhat difficult to accept that her condition persists to the date of decision. What is more difficult to accept, however, is that she has maintained a fiction over such a sustained period of time. Between her fall in 2003 and December 2010 Ms Priestly was examined by a large number of doctors, through referral by Comcare as her insurer, or ComSuper as her employer and rehabilitation authority, or by her doctor and lawyers. But from December 2010 until the second half of 2015 there were no such consultations, Ms Priestly having retired on invalidity grounds in July 2011. Yet she continued to report the same symptoms to her general practitioners: there are reports of continued symptoms (Exhibit R1) from January, March and September 2011; April and June 2012; February and July 2013; January, June and September 2014; and April and June 2015. This record includes the occasional flare of more acute pain (e.g. in September 2011 and June 2012). Naturally, Ms Priestly would have been aware that her symptoms remained connected to her continued receipt of compensation; but it would remain an extraordinary feat for a person to maintain a pretence over such a long period when no apparent pressure was being brought to bear.
It is not necessary to Comcare’s case that Ms Priestly should have maintained a fabricated or grossly exaggerated set of symptoms for a protracted period; all that is necessary is that I should accept that she was doing so at the date of the decision under review. But no evidence has been advanced of any change in Ms Priestly’s circumstances or behaviour at or in the lead up to the date of the decision under review; the remarkable thing, indeed, is the continuity of her reports over a very long stretch of time.
In all the circumstances, I am led to conclude that the weight of the evidence does not support a conclusion that Ms Priestly’s pain condition had never existed, or that it had resolved by the date of decision, or that it was a separate condition of different aetiology, unrelated to employment. I find that, on the balance of probabilities, she continues to suffer from a chronic pain condition, and that that condition retains its causal connection with her employment in 2003.
Ms Priestly’s psychological condition
The diagnosis
Dr Lovell identified Ms Priestly with an adjustment disorder with anxiety and depressed mood (Exhibit R9); Dr Knox diagnosed moderate severity major depressive disorder and generalised anxiety disorder (Exhibit A4). The doctors maintained those diagnoses after seeing the surveillance material; Dr Lovell provided a supplementary report (Exhibit R11) after viewing the surveillance material, in which he stated that the material showed that Ms Priestly’s capacities were greater than she had suggested to him in consultation, but he does not appear to have altered his diagnosis. At the hearing, Dr Knox said that he did not specifically disagree with Dr Lovell’s diagnosis; the difference between his diagnosis and that of Dr Lovell was largely a matter of severity.
The diagnoses offered by Dr Lovell and Dr Knox are consistent with others included in the documentary record – Dr Lucas (T31) and Dr Lambeth (T40) identified adjustment disorders; Dr George (T50) and Dr Farmbach (T56) diagnosed major depressive disorder. Dr Lovell made the entirely valid point that the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders, 5^th Edition (DSM-5) distinguishes major depressive disorder from an adjustment disorder by the pervasiveness of depressed mood: major depressive disorder requires that the person suffer depressed mood most of the day, nearly every day. Ms Priestly’s condition appears to be less severe than required to meet that descriptor. Given that point, and the concession by Dr Knox regarding the overlap between the two diagnoses, my preference is to accept the diagnosis by Dr Lovell of adjustment disorder with anxiety and depressed mood, and that is my finding.
Causation and onset

As noted earlier, it is a matter of record that Ms Priestly’s psychiatric condition was claimed as a secondary condition; that is, it was claimed as deriving from the pain condition and not arising directly from employment. Although a number of the psychiatrists who have seen Ms Priestly have identified her employment as a contributing factor to the condition, all have identified her pain condition as a significant contributing factor. On 4 May 2010 Comcare accepted liability from 19 November 2007 (ST46), the date at which Ms Priestly had sought medical treatment for a psychiatric condition.
I note that Ms Priestly was sent to a consultant psychiatrist first on 30 November 2004 (Dr Synott), but that he diagnosed no psychiatric condition at that time (T22); Ms Priestly went to Ms Amanda Lucas, a clinical psychologist, on 26 September 2005 and was diagnosed with chronic pain with reactive depression and anxiety (T27); Dr William Lucas, a forensic consultant psychiatrist, saw Ms Priestly in March 2006 and diagnosed an adjustment disorder with anxiety and depressed mood, noting that it appeared that she had earlier suffered a major depressive episode (T31). From the last report I would conclude that the onset of Ms Priestly’s psychiatric condition met the test of significance set in Comcare v Mooi [1996] FCA 1587 (at [12]) at the time of the consultation with Dr Lucas: that the condition was “outside the boundaries of normal mental functioning and behaviour”. Under subsection 7(4) of the SRC Act, a compensable disease has its onset when the applicant first sought medical attention or when the applicant first suffered death, incapacity or impairment. Dr Lucas’s report includes strong suggestions that Ms Priestly was impaired or incapacitated for work when he saw her, suggesting a date of onset in March 2006 rather than November 2007.
In any case, it is plain that Ms Priestly first obtained medical treatment for a psychiatric condition (as opposed to being sent for medico-legal assessment) well before November 2007. Dr Horsley referred Ms Priestly to Dr Veness in early 2006 and the latter saw her for the first time on 5 April 2006 (T34), diagnosing major depressive disorder and generalised anxiety disorder, and noting “substantial” suicide risk. At that time Ms Priestly had been taking antidepressant medication for some time (although this may have been prescribed as part of her pain treatment).
Before April 2007 the test for a disease under the SRC Act was that it was an ailment to which employment had contributed “in a material degree”; after that date the contribution of employment must be “to a significant degree” where “significant” means “substantially more than material”. Ms Priestly’s condition meets either test, given the unanimous view of several different psychiatrists regarding both the severity of her condition and its origins. Her psychiatric condition arose from her pain condition (with other factors, especially the workplace, also probably playing a part), and the date of injury was March 2006.
Reasonable medical treatment
Dr Gorman’s initial report (T63) opposed continuation of some of the therapies Ms Priestly was receiving at that time, namely massage (weekly), Feldenkrais therapy (monthly) and chiropractic (in fact not received since 2011). On 11 November 2015 Comcare wrote to Ms Priestly announcing an intention to cease entitlement for these therapies (T65), and Ms Priestly’s massage and Feldenkrais therapists responded urging continuation (T66, T67) as did Ms Priestly herself (T68, T69). There is no record in the documentation of a separate determination on these issues, but the last Feldenkrais therapy session appears to have been on 8 December 2015 and the last massage session on 18 January 2016 (ST49).
No evidence was led in respect of these “passive” therapies, nor were submissions made in respect of their resumption. I have no basis for finding that a resumption of these therapies would be medical treatment “in relation to” Ms Priestly’s injury, nor that it would be “reasonable medical treatment” under section 16 of the SRC Act.
Professor McGill and Dr Gorman noted in oral evidence that Ms Priestly was receiving little by way of medical treatment – limited to basic analgesia, in addition to medication for treating her psychiatric condition. Each thought that to be reasonable in the circumstances, although Professor McGill noted that as he had been unable to find any physical disorder, the treatment could not be “in relation to” the claimed physical condition. Dr Gorman diagnosed fibromyalgia, found the treatment to be reasonable, and added that pain management involving psychologists, physiotherapists and doctors would be “an ideal treatment”, while noting that this treatment was in his view delivered “in relation to” a condition unrelated to employment. Professor Champion thought that Ms Priestly needed more intensive treatment, namely comprehensive pain management; and that the treatment she had received was provided “in relation to” the claimed physical condition.
Drs Knox and Lovell generally regarded the mood-related medication that Ms Priestly was receiving as both reasonable and as having been provided “in relation to” her psychiatric condition. There was a little disagreement regarding dose for some of the medications, and Dr Lovell was not in favour of diazepam as part of the treatment regime. Dr Knox saw no need for further psychotherapy; Dr Lovell thought that a further six sessions of cognitive behaviour therapy were indicated.
The submissions by the parties focused closely on questions of continuing liability and gave little attention to the reasonableness of medical treatment. I have already arrived at the conclusion that Ms Priestly’s physical condition continues and that Comcare remains liable for that condition. It is not at issue that Ms Priestly continues to suffer from a psychiatric condition arising from her pain condition (even if other causes also contribute). Having found that Ms Priestly does have a physical condition, and that that condition has the necessary connection with employment, I can put to one side the reservations of Professor McGill and Dr Gorman. On the evidence before me, the treatment Ms Priestly has received since the dates of decision for both physical and psychiatric conditions is broadly appropriate; it is provided in relation to her claimed conditions and it was reasonable in all the circumstances.
Incapacity
The experts’ opinions on Ms Priestly’s current fitness for work show some variation. Dr Gorman initially found Ms Priestly unfit to engage in any type of work, but thought she might be able to undertake a rehabilitation program (T63). After viewing the surveillance material, he no longer believed that Ms Priestly had any incapacity for work (Exhibit R8). Professor McGill thought Ms Priestly physically able to undertake clerical duties after a first examination (Exhibit R3) and found that the surveillance material supported that conclusion (Exhibit R4). Professor Champion found Ms Priestly permanently unfit for work (Exhibit A5), and did not alter his view on the basis of the surveillance material (Exhibit A6). Dr Knox was not asked, and did not offer an opinion on, whether Ms Priestly was incapacitated for work, in his written report (Exhibit A4 - when he had examined Ms Priestly a number of years earlier he had identified 25% permanent impairment in respect of her psychiatric health (ST43)). Dr Lovell was also not asked about incapacity and did not provide an opinion on it in his initial written report (Exhibit R9); after viewing the surveillance material, Dr Lovell was hesitant to draw a definite conclusion regarding a psychological condition, but noted that Ms Priestly appeared to have a greater capacity than she had reported to him (Exhibit R11).
In oral evidence Dr Gorman and Professor McGill denied that Ms Priestly had any incapacity as a result of the claimed condition. That answer flowed in any case from the conclusions they had drawn about diagnosis and aetiology. Both doctors reinforced their opinions in the course of cross-examination; Dr Gorman noted that the claimed conditions, even if accepted, did not of themselves make Ms Priestly unable to work (Transcript 257.15-24). Professor Champion also maintained his view that Ms Priestly’s pain condition caused her incapacity. Dr Knox and Dr Lovell also touched on incapacity in their oral evidence. Dr Knox thought that superficially, Ms Priestly could return to employment, but in practice would probably be unable to do so. Dr Lovell thought that although there were obstacles to her return to work, arising from Ms Priestly’s history, she was, in respect of her pure psychological capacity, capable of a partial resumption of employment. Dr Knox saw the incapacity as deriving from the claimed psychological condition; Dr Lovell saw it as arising from pain, attitudinal and motivational issues, but not from the psychiatric diagnosis, although his statement that her psychiatric diagnosis would not prevent her undertaking part-time work (Transcript, 216.6-7) suggests that he held the view that it might prevent her undertaking full-time work.
Section 20 of the SRC Act provides for the calculation of incapacity for a person receiving a superannuation pension. The calculation, set out in subsection 20(3), requires the application of a formula, by which the amount the person receives is: amount of compensation – (superannuation amount + 5% of the employee’s normal weekly earnings). “Amount of compensation” is defined in the same subsection as the amount the person would receive if entitled to be compensated under section 19, disregarding subsection 19(6). “Superannuation amount” is defined in subsection 4(1), relevantly, in terms of the amount, or a part of the amount, that the person is receiving as a superannuation pension. The formula in section 20 thus imports into the calculation the process set out in section 19 for determining “amount of compensation”, which in turn uses a formula of its own, which subtracts from the employee’s normal weekly earnings (NWE) or a proportion of those earnings, the amount the employee earned or had an ability to earn (AE) in each week. The section sets out detailed processes for determining, in particular, the AE amount to be used for this purpose. Subsection 19(4), in particular, requires a detailed determination of the employee’s employment history, capacity and attempts to obtain suitable employment; suitable employment is in turn defined in subsection 4(1) as (relevantly) employment that takes into account the employee’s age, skills, experience, rehabilitation prospects and other relevant matters.
Some aspects of these issues were touched on during the hearing. It is clear that Ms Priestly has not been employed and has not sought employment since she left ComSuper in 2011; and it is likely that she has been deskilled and now has a reduced capacity for some forms of employment as a result. These are matters that can be taken into account in the assessment that is made under sections 19 and 20 of the SRC Act. On the available evidence, it appears likely that Ms Priestly has a partial incapacity; but the evidence available to me is limited, nor were the relevant issues squarely and comprehensively explored in submissions. I am not, therefore, in a position to make the determinations and findings required by the formulae in sections 19 and 20. Accordingly, the question of incapacity and the calculation of any amount that should be paid under section 20 of the SRC Act is remitted to Comcare for separate determination.
COSTS
Ms Priestly has succeeded on the issues that were argued at length during the hearing. Comcare must pay Ms Priestly’s party/party costs and disbursements, as agreed or taxed, in accordance with section 67 of the SRC Act and the tribunal’s “Taxation of Costs” Practice Direction dated 30 June 2015.

I certify that the preceding 182 (one hundred and eighty-two) paragraphs are a true copy of the reasons for the decision herein of Member Mark Hyman.

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Associate
Dated: 18 December 2019

Date(s) of hearing:
17-18 December 2018; 26 March 2019

Date final submissions received: 13 May 2019

Counsel for the Applicant: L Grey

Solicitors for the Applicant: Gabbedy Milson Lee

Counsel for the Respondent: PG Woulfe

Solicitors for the Respondent: HWL Ebsworth Lawyers

Date(s) of hearing:	17-18 December 2018; 26 March 2019
Date final submissions received:	13 May 2019
Counsel for the Applicant:	L Grey
Solicitors for the Applicant:	Gabbedy Milson Lee
Counsel for the Respondent:	PG Woulfe
Solicitors for the Respondent:	HWL Ebsworth Lawyers