Re Lewis and Comcare

Case [2002] AATA 197

DECISION AND REASONS FOR DECISION [2002] AATA 197

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N1999/773

GENERAL ADMINISTRATIVE DIVISION          )          
           Re      JULIE GAY LEWIS           
  Applicant
           And    COMCARE             
  Respondent

DECISION

Tribunal       Mr M J Sassella Senior Member

Date25 March 2002

PlaceSydney

Decision      The decision under review is affirmed.  The applicant is entitled to no costs from the respondent in respect of this application            
   [SGD] M J SASSELLA
  Senior Member
CATCHWORDS
WORKERS' COMPENSATION – Tribunal's power to review decision reviewed previously by Tribunal – applicant made new claim in respect of same employment events – new claim related to different diagnosis – Tribunal decided to hear new application – central sensitisation of nociception – regional fibromyalgia – pain disorder – personality disorder – arising out of or in the course of employment – aggravation to which employment made a material contribution – applicant's claim rejected by respondent – Tribunal affirmed respondent's decision

Re Julie Lewis and Comcare [2000] AATA 158
Re Wood and Comcare  [1999] AATA 263
Kirkpatrick v Commonwealth of Australia (1985) 9 FCR 36
Casarotto v Australian Postal Corporation (1989) 86 ALR 399
Comcare v Mooi (1996) 137 ALR 690
Re Polder and Comcare [2001] AATA 780
Re Bianchi and Comcare [2001] AATA 805

Safety. Rehabilitation and Compensation Act 1988, ss 4(1) "ailment", "disease". "injury", 14(1).

REASONS FOR DECISION

25 March 2002        Mr M J Sassella Senior Member             

history of application

  1. On 7 April 1998 Ms Julie Gay Lewis ("the applicant") lodged with Comcare ("the respondent") a claim for compensation (T159).  She claimed in respect of central sensitisation of nociception with allodynia.  She attributed it to the nature and conditions of her employment with the Department of Defence ("the Defence Department").  She had noticed its onset in 1988 and had first sought medical treatment in December 1998.  It affected her back, chest and left arm.

  2. On 27 May 1998 Ms Lewis lodged a claim in respect of alleged permanent impairment (T160).  She claimed for pain in the thoracic spine, in the left side and chest, intermittent pain and pins and needles of the left arm, a burning sensation.  The condition as diagnosed was "chronic post-injury back pain syndrome with major psychosocial consequences (neuropathic pain syndrome)".  She was said to have a 20% whole person impairment in accordance with the Comcare Guide to the Assessment of the Degree of Permanent Impairment ( This claim appears to have been not acted on by the respondent.  There has been no reviewable decision affecting it.

  3. On 6 July 1998 a delegate of the respondent rejected the claim on the basis that:

    "Ms Lewis previously submitted a claim in 1988 in relation to various back injuries sustained in the course of her employment.  Her claim was accepted and she continued to receive all her entitlements until liability was ceased with effect 31 May 1995.  On appeal this decision was affirmed by the Administrative Appeals Tribunal (AAT) on 13 December 1996.
    "The claim which you are now seeking to lodge … appears to relate substantially…

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AGLC
Re Lewis and Comcare [2002] AATA 197
Case
[2002] AATA 197
Decision Date

CaseChat Overview and Summary

Julie Lewis brought a claim against Comcare for compensation for injuries arising from her employment with the Department of Defence in 1997-1998. Comcare rejected her claim and the Administrative Appeals Tribunal had previously dismissed her appeal. Ms Lewis sought further review by the Administrative Appeals Tribunal. Comcare argued that the Tribunal should not hear the matter again due to the previous decision. The Tribunal had to determine whether it should hear the new claim, given the prior decision, and whether Ms Lewis's injuries were related to her employment with the Defence department. The tribunal decided to hear the new application, emphasising that its decision was not influenced by Ms Lewis's attempts to reopen the earlier decision. The tribunal found that Ms Lewis did not suffer from central sensitisation of nociception, a condition she claimed to have. It also found that any ailments or injuries she had were not related to her employment. Therefore, the tribunal affirmed Comcare's decision to reject the claim.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Dr J R Champion said that, from a psychiatric point of view, the presence of a personality disorder is not inconsistent with being psychiatrically fit for a return to work if motivated in that direction. Currently the applicant is motivated towards compensation. This echoes the opinion of psychiatrist Dr J Taylor (ex R5, 31 October 1995) who said that psychogenic components seem to be predominant in perpetuating her pain but this is not an interpretation Ms Lewis wanted to accept.findings on material questions of fact with reference to the evidence and other material in support of those findingsLegal issues The tribunal has decided to resist Ms Adamson's somewhat convincing arguments inviting it to refuse to hear this application given the existence of the earlier decision. The tribunal considers that the interlocutory decision by Senior Member Allen effectively disposed of the issue. The tribunal accepts that Senior Member Allen's decision was correct. There was the appearance of a fresh diagnosis that could conceivably have commended itself to a newly constituted tribunal. At the same time the tribunal emphasises that its decision to hear this application was not influenced in the least by the applicant's approaches to Comcare seeking to reopen the earlier decision. For Comcare to be liable to pay compensation to Ms Lewis under s 14 of the Act she must have suffered an injury under the Act. For an "injury" to have occurred under the Act, s 4(1) requires that an employee must have a disease or a non-disease physical or mental injury arising out of, or in the course of, the employee's employment, or an aggravation of a physical or mental injury provided the aggravation arose out of, or in the course of, the employee's employment. A "disease" under s 4(1) is an ailment suffered by an employee, or the aggravation of such an ailment. The ailment or aggravation must have been contributed to in a material degree by the employee's employment. The Act defines an "ailment" in broad terms as any physical or mental ailment, disorder, defect or morbid condition, whether of sudden onset or gradual development. In this case, therefore, it is necessary to discern whether Ms Lewis has an injury and whether any such injury is related in an appropriate way to her employment with the Defence department in 1997-1998.Central sensitisation of nociception As a first step the tribunal does not accept that the applicant suffers from an injury, disease or ailment known as central sensitisation of nociception with allodynia, as she claimed on her claim form. I am unaware of any decision of the tribunal in which this has been accepted as an injury under the Act. In paragraph 27 above, Deputy President Burns in the Wood case (supra) was quoted expressing views about this diagnosis and Dr G D Champion which are equally applicable in the present case. Exhibits A4 and A5 do not assist greatly. Exhibit A4 is a learned article from a journal called Pain. The article details the results of experiments that suggest that sufferers of chronic pain exhibit changes in brain chemistry. Apparently these can be discerned using magnetic resonance spectroscopy. At the hearing on 8 February 2001 Dr G D Champion refereed to this article during cross-examination. Ms Adamson asked: "Is it fair to say that where there is no pathology, it's ultimately a question of judgment or opinion as to whether this [nociceptive] pain disorder is present or whether the problem is purely psychological?" He replied:"But there's no evidence of that – in the ordinary practice of medicine of purely psychological pain disorder, especially of a focal type, certainly – I mean even – even the hysterical conversion reactions – diminished to almost zero and pain is not one of those which are widely accepted. There is always an integration of neurobiology with the psycho-social factors. The latest issue of Pain and I brought this paper with me shows – takes a sample of individuals with chronic spinal pain without much in the way of pathology in the conventional sense and does brain chemistry imaging and shows remarkable contrasts with people without back pain. So, the problem lies in our human ability to understand and interpret what's going in where people are – have chronic pain after injury and in many other contexts and the research shows – showing us all the time that the cynical views of predominantly psychological causation and so on – have been overvalued. Thus said, thus said there is no question that psycho-social factors are at least as important as the neurobiological changes in peoples ability to work and determination of whether they will work" (transcript, P-118).

Decision

Reasons for decision

On 18 February 1999 Ms Lewis personally requested reconsideration on the basis that her condition had been misdiagnosed by doctors involved in the earlier tribunal case and she had new medical evidence (T191).reviewable decision On 30 March 1999 a Comcare delegate issued a reviewable decision (T204) affirming the decision to reject the claim in T159. This decision affirmed the decision taken on 6 November 1998 in T188. The delegate's reasons were essentially:"The conditions referred to in this claim are similar to those that were ultimately assessed and determined by the Administrative Appeals Tribunal in your claim for compensation lodged on 3 May 1988. Your original claim for compensation related to 'muscular strain' and liability was accepted for the injury 'muscular strain left chest wall'. Following the acceptance of liability, many medical opinions were obtained from a variety of medical practitioners in various specialities and, as a result, a decision was made that the conditions from which you suffered were not caused or materially contributed to by your employment with the Department of Defence."You appealed this decision to the Administrative Appeals Tribunal and the Tribunal found, on the evidence, there was no liability to pay compensation to you under any section of the Safety, Rehabilitation and Compensation Act 1988 in respect of any condition that [you] were suffering from at the time of the Tribunal hearing...."It is considered that the conditions you are now claiming [were] adequately considered by the Administrative Appeals Tribunal during the hearing on 3 and 4 October 1996 and the decision handed down on 13 December 1996."Having decided that the matter has already been adequately dealt with by both Comcare and the Administrative Appeals Tribunal, I am satisfied that the conditions now being claimed have not arisen out of or in the course of your previous employment with the Department of Defence, nor has that employment contributed, to a material degree, to the causation or aggravation of those conditions." On 24 May 1999 the applicant lodged with the tribunal an application for review (T1).relevant legislation The relevant legislative provisions are those that follow from the Safety, Rehabilitation and Compensation Act 1988 ("the Act"): sections 4(1) "ailment", "disease", "injury", 14(1)."SAFETY, REHABILITATION AND COMPENSATION ACT 1988Interpretation 4.(1) In this Act, unlessthe contrary intention appears: …ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development). …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. …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. ……Compensation for injuries 14.(1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment."

Ratio Decidendi

Legal Principle Established

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