Priestly and Comcare (Compensation)

Case [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…

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AGLC
Priestly and Comcare (Compensation) [2019] AATA 5456
Case
[2019] AATA 5456
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal by Ms Priestly against a decision by Comcare regarding her workers' compensation claim. The dispute centred on whether Ms Priestly continued to suffer from a chronic pain syndrome and a secondary psychological condition, and whether these conditions were still caused by her employment. The case was heard by Member Mark Hyman.

The legal issues before the court included determining whether Ms Priestly's chronic pain syndrome constituted a compensable injury, given Comcare's argument that it was merely a subjective feeling without a demonstrable physical or psychiatric change linked to employment. The court also had to consider whether Ms Priestly's reported symptoms were reliable and genuine, and whether her psychological condition, which was accepted as stemming from her pain condition, remained compensable. Furthermore, the court was required to assess whether Ms Priestly was still suffering from incapacity and entitled to reasonable medical treatment at the time of the decision under review, and to determine the admissibility and weight of surveillance material introduced by Comcare.

Member Hyman reasoned that the diagnosis of "chronic pain syndrome" was well-established and, for the purposes of the case, did not carry inherent causal baggage. The court found that Ms Priestly's original acute injury in March 2003 met the definition of an "injury" arising from employment. The subsequent chronic pain condition, which developed a few months later, was considered an "ailment" that was materially contributed to by her employment. Crucially, the court found that the continuity of Ms Priestly's symptoms from the initial injury to the present day was not exaggerated, and that variations in her reporting were consistent with someone experiencing an ongoing condition. The court rejected Comcare's contention that the continuity of symptoms had been exaggerated, noting that Professor McGill's report supported the view that the pattern of symptom reporting had remained similar since 2003.

The court set aside the decision under review and substituted its own decision. It found that Ms Priestly's chronic pain condition was a disease under the *Safety, Rehabilitation and Compensation Act 1988* (Cth) and that its causation continued to be linked to her employment. Consequently, the court determined that Ms Priestly was entitled to compensation for medical treatment and incapacity.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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 evidenceWitness 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.

Decision

Reasons for decision

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.”

Ratio Decidendi

Legal Principle Established

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.