Shiree Power and Comcare

[2015] AATA 471

[2015] AATA 471

Division	GENERAL ADMINISTRATIVE DIVISION
File Numbers	2013/4958, 2015/0137
Shiree Power
APPLICANT
And	Comcare
RESPONDENT

DECISION

Tribunal	Dr James Popple, Senior Member
Date	30 June 2015
Place	Canberra

1.      In application 2013/4958, Comcare’s decision on 12 August 2013 is set aside and, in substitution, the following decision is made:

The applicant continues to suffer the effects of the compensable injury of 18 October 2010. Comcare remains liable under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) to pay the applicant compensation in respect of that injury. Comcare is required, under s 16 of the SRC Act, to pay the applicant compensation in respect of the cost of her medical treatment for that injury.

2.      In application 2015/0137, Comcare’s decision on 23 December 2014 is set aside and, in substitution, the following decision is made:

The applicant suffers from an adjustment disorder with mixed features of anxiety and depressed mood, with a date of injury of 18 August 2013. Comcare is liable under s 14 of the SRC Act to pay the applicant compensation in respect of that injury. Comcare is required, under s 16 of the SRC Act, to pay the applicant compensation in respect of the cost of her medical treatment for that injury.

3.      In each of applications 2013/4958 and 2015/0137, the following question is remitted to Comcare for determination:

Is Comcare required by s 19 of the SRC Act to pay Ms Power compensation for incapacity for work and, if so, how much?

4.      Comcare shall pay the costs of the proceedings in each of applications 2013/4958 and 2015/0137.

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

James Popple, Senior Member

CATCHWORDS

COMPENSATION — Commonwealth employees — whether Applicant continues to suffer effects of injury — whether fall an aggravation — Applicant exaggerates symptoms — reliance on analgesics and ‘TENS’ machine — whether Applicant has psychiatric disorder — whether contributed to, to a significant degree, by employment — decision under review set aside — Applicant entitled to compensation for medical expenses — whether Applicant entitled to compensation for incapacity for work remitted to Comcare.

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988, ss 5B(3), 14, 16, 19, 67

CASES

Commonwealth v Borg, unreported, Federal Court of Australia, Full Court, 15 November 1991

Jagtenberg and Australian Postal Corporation [1998] AATA 600

REASONS FOR DECISION

James Popple, Senior Member

30 June 2015

Summary

1. I set aside Comcare’s decisions denying the applicant compensation under the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act).  The applicant continues to suffer from the effects of a physical injury arising out of her employment.  The applicant also suffers from a psychological injury.  Comcare must pay her compensation in respect of the cost of her medical treatment for both injuries.  I remit, for Comcare’s determination, the question whether Comcare is also required to pay the applicant compensation for incapacity for work.

   Background

2. Ms Shiree Power worked as a casual “house attendant” at the Lodge, the Prime Minister’s official residence in Canberra.  She was employed by the Department of the Prime Minister and Cabinet on six separate contracts of various durations.  The contracts were for contiguous periods, except for a gap of almost six weeks in July and August of 2010 between the fourth and fifth contract.  Allowing for that gap, the contracts covered about six months between 23 March and 9 November 2010.

3. On 18 October 2010, Ms Power injured her back while making a bed at the Lodge.  On 25 October 2010, she re-injured her back while cleaning a bathroom at the Lodge.

4. Ms Power made two separate applications to this Tribunal, which were heard together.  The background to each application is explained below.

   Application 2013/4958

5. On 9 February 2011, Ms Power made a claim for worker’s compensation for a back injury. On 4 April 2011, Comcare accepted liability, under s 14 of the SRC Act, for Ms Power’s lumbar sprain, with a date of injury of 18 October 2010.

6. On 14 November 2011, Ms Power made a claim under ss 24 and 27 of the SRC Act for compensation for permanent impairment and non-economic loss. On 27 April 2012, Comcare disallowed her claim.

7. On 15 October 2012, in an own-motion reconsideration of its determination of 4 April 2011, Comcare varied that determination by replacing the accepted condition “lumbar sprain” with “aggravation of disc degeneration L4-L5/L5-S1” (the compensable injury).

8. Comcare commissioned video surveillance of Ms Power which was conducted on seven days between 17 December 2012 and 6 January 2013.

9. Ms Power says that, on 6 February 2013, she fell over at a shopping centre.  She was taken to hospital by ambulance complaining of pain in her lumbar and her left knee.  She was discharged from hospital later that day.

10. On 9 May 2013, Comcare wrote to Ms Power advising her of Comcare’s view that the medical evidence suggested that she no longer suffered from the effects of the compensable injury. Ms Power was asked to provide any further medical evidence in support of the contrary view within 28 days. Ms Power provided further evidence. On 6 June 2013, Comcare decided that she no longer suffered from the effects of the compensable injury. For that reason, Comcare determined that Ms Power was no longer entitled to compensation for medical expenses (under s 16 of the SRC Act) or for payments for incapacity for work (under s 19).

11. On 24 July 2013, Ms Power requested a reconsideration of that determination.  On 12 August 2013, Comcare affirmed its determination.

12. On 1 October 2013, Ms Power applied to the Tribunal, under s 64 of the SRC Act and s 29(1) of the Administrative Appeals Tribunal Act 1975 (the AAT Act), for review of that decision.

    Application 2015/0137

13. On 8 August and 7 October 2014, Dr Robert Lewin, a psychiatrist, diagnosed Ms Power as suffering from an adjustment disorder with mixed features of anxiety and depressed mood as a consequence of her lower back injury.

14. On 16 October 2014, Ms Power wrote to Comcare asking Comcare to amend her accepted condition to include this diagnosed condition, and seeking approval for treatment.

15. On 27 October 2014, Comcare denied liability.  Comcare was not satisfied, on the balance of probabilities, that her psychological condition was significantly contributed to by her compensable back injury.

16. On 30 October 2014, Ms Power requested a reconsideration of that determination.  On 23 December 2014, Comcare affirmed its determination.

17. On 13 January 2015, Ms Power applied to the Tribunal, under s 64 of the SRC Act and s 29(1) of the AAT Act, for review of that decision.

    Decisions under review

18. The decisions under review are Comcare’s reconsidered decisions:

    ·on 12 August 2013, rejecting liability for compensation for permanent impairment and non-economic loss for aggravation of disc degeneration L4-L5/L5-S1; and

    ·on 23 December 2014, rejecting liability for a psychological injury as a secondary condition.

    Issues

19. The issues in this review are:

    ·Does Ms Power continue to suffer the effects of the compensable injury?

    ·If so, is she entitled to compensation for medical expenses (under s 16 of the SRC Act) or for payments for incapacity for work (under s 19)?

    ·Does Ms Power suffer from a psychological condition which was significantly contributed to by her compensable back injury?

    ·If so, is she entitled to compensation for that condition (under s 14)?

    Does Ms Power continue to suffer the effects of the compensable injury?

20. In deciding whether Ms Power continues to suffer the effects of the compensable injury, I must have regard to medical evidence and video surveillance evidence.  I must also consider the effect of the fall that Ms Power says she had at a shopping centre.  Comcare bears a practical onus of demonstrating that the effects of the compensable injury have ceased.[1]

    [1]     Commonwealth v Borg, unreported, Federal Court of Australia, Sweeney, Jenkinson and Gray JJ, 15 November 1991.  The court’s reasons appear, in their entirety, in an editor’s note to Telstra Corporation Ltd v Arden (1994) 20 AAR 285 at 299–310: see at 307 per Jenkinson J, with whom Sweeney J agreed.

    Medical witnesses

21. At the hearing, evidence was given by five medical witnesses.  The evidence of four of those witnesses is relevant to Ms Power’s back injury.[2]  I have summarised their evidence below.

    Dr Tim Watson

    [2] The evidence of the fifth medical witness (Dr Robert Lewin) is discussed below in relation to Ms Power’s claimed psychological condition (see [78]–[80]).

22. Dr Tim Watson has been Ms Power’s general practitioner (GP) since 16 July 2013.  In a report on 4 February 2014, he diagnosed Ms Power as suffering from a severe lumbar spine sprain, lumbosacral chronic pain syndrome, cervical and thoracic chronic pain syndrome, and an adjustment disorder with depressed mood.  He also said that it was likely that she had developed fibromyalgia.

23. Referring to various magnetic resonance imaging (MRI) scans that Ms Power had had, Dr Watson said that it appeared that she had annular tears and degeneration of her spine.  At the hearing, Dr Watson agreed that an annular tear can become asymptomatic over time, but said that Ms Power’s had been getting worse.

24. Dr Watson made the same diagnoses in another report on 2 February 2015, except that he then characterised the lumbosacral chronic pain syndrome as an initial complication, and made no mention of cervical and thoracic chronic pain syndrome.  He also diagnosed fibromyalgia, possibly caused by the initial lumbar spine injury.

25. At the hearing, Dr Watson was asked whether Ms Power’s regression could be symptomatic of a general degeneration of her spine.  In his view, it was more than that.  He says that at no point since October 2010 have the effects of Ms Power’s original injury ceased.

    Dr Peter Burgess

26. Dr Peter Burgess is an orthopaedic surgeon.  He wrote a report about Ms Power on 9 April 2014.  From his examination of her on 28 March, and from her X-rays, he said that she appears to have suffered a soft tissue injury to her lumbar spine.  He also concluded that she appears to be continuing to suffer from the effects of that injury.  However, in his opinion, “she is significantly exaggerating her back condition whether conscious[ly] or unconscious[ly]”.

27. At the hearing, Dr Burgess was referred to radiological evidence and agreed that it showed that there had been some degeneration of Ms Power’s spine before October 2010.  He was asked whether, if she was asymptomatic at that time then became symptomatic in October 2010, she could still be suffering from the natural progression of that degeneration.  He said that, in his view, her current condition is a result of the injury.

28. At the hearing, Dr Burgess also referred to two targeted cortisone injections that Ms Power had had into her spine in late 2012 and early 2013.  Ms Power reported having some short-term relief after one injection, but not after the other.  Dr Burgess explained that the immediate relief experienced after one of the injections might have been due to the local anaesthetic administered before the cortisone injection.

29. At the hearing, Dr Burgess said that it is possible that Ms Power could still be suffering pain and other symptoms attributable to the compensable injury, 3–4 years afterwards.  Dr Burgess reported that Ms Power’s prognosis was “somewhat gloomy”.  He also noted that she “appears to be becoming over-dependent on analgesia and a TENS machine”.

30. Ms Power has been prescribed a number of analgesics including Toradol.  Ms Power’s use of Toradol and her TENS machine—and their efficacy in relieving her pain and improving her movement—are important to this review, particularly in relation to the video surveillance.[3]

    Dr John Talbot

    [3] See [47]–[54] below.

31. Dr John Talbot is an orthopaedic surgeon.  He provided four reports on Ms Power: on 2 October 2012, 2 and 15 April 2013 and 24 May 2013.

32. In his report of 2 October 2012, Dr Talbot said that Ms Power had pre-existing, “although apparently silent”, degenerative changes in the L4-L5 and L5-S1 discs.  It was, he said, likely that she had irritated one or other of those discs in October 2010, “thereby rendering the pre-existing situation to become symptomatic”.  At the hearing, Dr Talbot said that the degenerative changes in Ms Power’s spine are commonly seen in people of her age (38 years at the time of the compensable injury).  Dr Talbot reported that Ms Power was fit to work four hours a day, five days a week of administrative office duties with certain provisions.  He said that she was capable of driving for 15–20 minutes and standing for 20–30 minutes, and could lift objects of no more than 5 kilograms.

33. In his report on 2 April 2013, Dr Talbot said that Ms Power’s “alleged symptoms and disability is greater than one would normally expect from aggravation of L4/5 and L5/S1 disc degenerations sustained 2½ years ago”.  However, he said that he believed that she did sustain the back injury on 18 October 2010, although he “would expect her symptoms to be far or less [sic] pronounced than they are so long after the incident, particularly in light of the radiological findings which are not dramatic”.  Dr Talbot suggested that Comcare obtain a psychiatrist’s report “in case there are any undiscovered non-organic factors which may be continuing to contribute to her complaints of pain”.

34. At the hearing, Dr Talbot said that he believed that the compensable injury had aggravated Ms Power’s spine.  He said that it was not possible to say whether her symptoms were due to degenerative change or injury, or both.  He also said that the state of her lumbar spine was insufficient to explain her symptomology or complaints.  Dr Talbot said that opinion is divided about whether an annular tear can be a permanent injury.  He said that he would have expected Ms Power’s injury to resolve itself within four to five months, though sometimes that can take two years.

    Dr Geoffrey Stubbs

35. Dr Geoffrey Stubbs is an orthopaedic surgeon.  He examined Ms Power on 4 December, and wrote a report on 19 December 2013.  He said that an MRI scan of Ms Power’s cervical spine showed “the presence of some disc degeneration at C5/6”, but that that was a common finding in females of Ms Power’s age and not in itself indicative of pain.  He also said that the features reported from a CT (computed tomography) scan of Ms Power’s lumbar spine in May 2011 were “not particularly out of the ordinary”.  At the hearing, he said that annular tears are frequently seen in “normal” people.  He said that it is usually very hard to identify a new injury, and that 85% of back pain does not allow a specific diagnosis.  He also said that, in his view, if Ms Power had aggravated a degenerative spinal condition in October 2010, that aggravation would have lasted no more than six months.

36. Dr Stubbs found Ms Power “very inconsistent in the clinical examination”.  In his report, he said:

    Some things which would normally be difficult she can do relatively easily and others she can’t do at all though they are simple.  Things that normally cause pain and provocation for back pain (heel walking) are done easily whereas tip toe walking which is usually comfortable to the low back and the preferred method with serious low back pain, seems impossible to do.

    Dr Stubbs concluded that Ms Power did not have an “underlying, pre-existing or constitutional condition”.

37. There was inconsistency between the results of bilateral straight leg lowering testing of Ms Power conducted by Dr Stubbs (on 4 December 2013) and by Dr Burgess (on 28 March 2014).  Dr Burgess was asked, at the hearing, about this inconsistency, and about the other inconsistencies that Dr Stubbs had identified.  He said that the things that Dr Stubbs had identified as inconsistencies would vary between different times and different people.

    Findings

38. Having considered this evidence, some of it conflicting, I make the findings set out in [39]–[40] below.

39. Ms Power had some degenerative changes in her L4-L5 and L5-S1 discs before the compensable injury.  Those changes were asymptomatic.  The compensable injury aggravated that degeneration of her spine.  The effects of such an injury would normally have reduced or ceased within months of the injury, but those effects could continue for years.

40. Ms Power exaggerates her symptoms.  Nonetheless (and leaving aside, for the moment, the video surveillance evidence and her fall at a shopping centre), it is possible that she still continues to suffer the effects of the compensable injury.

    The surveillance video

41. Comcare commissioned video surveillance of Ms Power which was conducted on seven days between 17 December 2012 and 6 January 2013, including two consecutive days in December, and four consecutive days in January.  Some of this surveillance video (the video) was viewed at the hearing.  It was also provided to the medical witnesses listed above, for their consideration and comment.  Those medical witnesses have different views of what the video demonstrates.

42. I adopt Dr Watson’s description of the video.  It shows Ms Power “walking in various different locations, sitting, driving her vehicle, shopping, getting items out of her car, getting in and out of her car and various other menial tasks of everyday activity”.

    Comcare’s submissions about the video

43. Comcare says that the video demonstrates that Ms Power did not then suffer—and, therefore, no longer suffers—from the effects of the compensable injury.  It cites Drs Talbot and Stubbs in support of this argument.

44. In his report of 15 April 2013, Dr Talbot said that Ms Power’s behaviour and mobility, as revealed on the video “was not compatible with her description of severe pain and physical limitations”.  He said that “she appeared quite unlike the person with very slow hesitant movements and frequent expressions of pain who presented to me for my recent assessment”.[4]  Dr Talbot added that it was not possible to determine, from the video, the level of pain that Ms Power was experiencing.  But he did say that “the footage certainly made me very suspicious that, during my assessment, she was exaggerating her pain both in the history she supplied to me and in her performance during the physical examination”.

    [4]     That assessment occurred on 21 March 2013.

45. Dr Talbot’s 15 April report had been prepared without access to the entire video.  He provided a further report on 24 May 2013, having viewed the remainder of the video.  In the latter report he said that the further footage showed Ms Power had “engaged in activities that according to her medical report, she should be unable to participate in”.  He gave, as examples, bending freely into the rear seat of her car; picking up her shoes; changing her shoes; walking briskly; and getting in and out of her car.

46. Dr Stubbs, in his report of 19 December 2013, said that “[n]othing in that video footage suggested a person who is not entirely comfortable and able to carry out a wide range of activities without difficulties”.

    Ms Power’s use of Toradol and a TENS machine

47. Ms Power gave evidence at the hearing.  She said that, for her to have been able to do the things that she is seen doing on the video, she must have been wearing her TENS machine, and she must have had an injection of Toradol on each of the days on which the video was taken.

48. A TENS machine, Dr Burgess explained, is an electronic device that blankets the pain of an injury.  (TENS stands for “transcutaneous electrical nerve stimulation”.)  Dr Talbot and Dr Stubbs each described Toradol as a powerful non-steroidal anti-inflammatory medication, usually used in the management of post-operative pain.

49. I do not think that Ms Power was a reliable witness about her use of the TENS machine.  She was initially adamant that she had worn her TENS machine at all of the medical examinations referred to above.  When confronted with evidence that she had not worn it at all of those examinations—and had not even mentioned her use of a TENS machine to some of the doctors—she resiled from her earlier adamant position.

1. Similarly, I do not think that Ms Power was a reliable witness on the question of how frequently she had Toradol injections.  Ms Power lives with her fiancé, Mr Richard Diamond.  He would inject her with Toradol.  His evidence was that Toradol appeared to give Ms Power relief from pain for a day, sometimes for a few days.  He said that he did not give her injections every day, and that he would not always inject her with Toradol when she wanted it.  Mr Diamond said that he restricted her use of the drug because they had been told that she should have Toradol injections no more frequently than about once a week.

2. It is impossible to tell from the video whether or not Ms Power is wearing her TENS machine while she is being filmed.  Notwithstanding the inconsistencies in her evidence about the TENS machine, it is likely that she was wearing her TENS machine at those times.  However, I think it is very unlikely that Ms Power received an injection of Toradol on each of the days covered by the video as she asserts, especially the four consecutive days in January 2013.

3. At the hearing, the medical witnesses were asked about the efficacy of Toradol and a TENS machine in relieving Ms Power’s pain and improving her movement.  Dr Stubbs described using a TENS machine as “rather like turning the radio on when there’s a dripping tap”: it distracts the user from the pain.  He said that trials had shown that TENS machines were just as effective when turned off, so the benefit of wearing one is what the patient expects from it.

4. Drs Stubbs, Talbot and Watson all said that neither the TENS machine nor Toradol would increase Ms Power’s range of movement, though they might reduce (or, at least, mask) her pain.  All three said that Ms Power may benefit from the placebo effect when using her TENS machine or Toradol.

5. Dr Burgess said that Toradol and the TENS machine could improve Ms Power’s range of movement, due to the alleviation of pain.  Dr Stubbs said that Toradol might improve her movement, but only to the extent that it reduced her pain: it would not affect any mechanical restrictions.

   Ms Power’s submissions about the video

6. Ms Power says that the video does not demonstrate that she did not then suffer from the effects of the compensable injury, and that it actually demonstrates that she did suffer from those effects at the time.  She cites Drs Watson and Burgess in support of this argument.

7. Dr Watson said that 95% of what Ms Power is seen doing on the video is “very mundane and pedestrian”.  He says that there is nothing on the video inconsistent with her ongoing lumbar back pain.  He says that it shows her doing “what I would expect her to be able to carefully undertake”.

8. Dr Burgess, whose view is that Ms Power is “significantly exaggerating her back condition”, nonetheless said that there is nothing in the video inconsistent with her still suffering the effects of the compensable injury.  Dr Burgess referred to two specific incidents in the video: when Ms Power squatted to pick up her shoes; and when she bent her knees before brushing some crumbs off a seat before sitting down.  He said that both of these incidents suggested that Ms Power was moving so as to protect her back.

9. As noted above, Dr Talbot reported on 2 October 2012 that Ms Power was fit to work four hours a day, five days a week; could drive for 15–20 minutes; could stand for 20–30 minutes; and could lift objects of no more than 5 kilograms.  At the hearing, Drs Burgess, Talbot and Stubbs each agreed that Ms Power was not seen doing anything in the video that was inconsistent with that assessment of her capacity.

   Findings

10. Having considered this evidence, including viewing the video, I make the findings set out in [60]–[61] below.

11. Ms Power regularly uses her TENS machine and Toradol.  She thinks that they have efficacy beyond their actual physiological effect.  Ms Power was wearing her TENS machine at all times during the video.  She did not have the benefit of pain reduction due to Toradol at all times during the video.

12. Ms Power is not seen doing anything in the video that is inconsistent with her still suffering, at that time, from the effects of the compensable injury.

13. In relation to this last finding, I do not accept the evidence of Drs Talbot and Stubbs.  I think it is significant that, on two separate occasions (to which Dr Burgess referred), Ms Power can be seen on the video moving in a way that suggests that she was protecting her back.  I also think it is significant that, notwithstanding Dr Talbot’s and Dr Stubbs’s views about the video, both agreed that Ms Power does not do anything in the video that is inconsistent with Dr Talbot’s assessment of her capacity to work—an assessment that he made on the basis that she was suffering from the effects of the compensable injury.

    Ms Power’s fall at a shopping centre

14. Ms Power says that, on 6 February 2013, she fell over at a shopping centre.  She was taken to hospital by ambulance, and was discharged later that day.  The hospital discharge letter says that Ms Power “recalled landing directly on her left knee and experiencing instant left knee and lumbar pain at the time”.  X-rays were taken of her knee, hip and lumbar spine.  No abnormality was detected.  She was diagnosed with “contusion of knee”.

15. On 11 February 2013, Ms Power saw her then GP, Dr Suzanne Ward.  Dr Ward’s notes indicate that Ms Power “fell over last week and now increased back pain”.  Ms Power did not mention the fall to Dr Talbot when she saw him on 21 March 2013.  She saw Dr Geoffrey Speldewinde, a rehabilitation consultant, on 30 April 2013, but did not mention the fall to him.  She did not mention the fall, either, to Dr Stubbs when she saw him on 4 December 2013.  When asked why she had not told those doctors about the fall, she said that she was seeing them in relation to her Comcare matter, only, and did not think that the fall was relevant.

16. Ms Power changed GPs, and first saw Dr Watson on 16 July 2013.  His notes include a brief history of Ms Power’s back problems, but make no reference to the fall.  It appears, from his notes, that she did not tell him about the fall until 14 March 2014, when she had her tenth consultation with him.

17. On 14 March and 11 April 2014, Ms Power told Dr Watson that she was still experiencing pain from the fall in her back, her right knee and right ankle.  When she was admitted to hospital, on the day of the fall, she had complained of pain in her lumbar spine and left knee.  At the hearing, Ms Power was asked to explain this discrepancy.  At first she said that the fall had injured her left knee and right ankle.  She later said that she had little memory of her time at the hospital because of the morphine she had been given in the ambulance.

18. Dr Burgess saw Ms Power on 28 March 2014.  He examined her right knee and ankle.  He considered X-rays of her right foot and ankle.  He could think of no reason why Ms Power first reported the pain in her left knee, when he was told of this at the hearing.  However, he remained of the view that he had expressed in his report: that the fall would appear to have aggravated Ms Power’s back injury.

19. I think that much of Ms Power’s evidence about the fall is unreliable.  She did not mention it at various medical examinations over a period of almost a year.  She says that that was because she did not think the fall was relevant to her Comcare matter.  I think it likely that she did not mention the fall because she feared that it might affect her compensation payments, which Comcare ceased on 6 June 2013.  And, as Ms Power’s counsel conceded at the hearing, it is “odd” that Ms Power’s complaint of pain was first about her left knee, then about her right knee and ankle.

20. Notwithstanding my serious misgivings about Ms Power’s evidence about the fall, there is evidence that she did fall, and that the fall aggravated her back injury.  That was Dr Burgess’s view.  Dr Watson, in his report of 2 February 2015, said that the fall “permanently aggravate[d] her overall physical and psychological symptomatology.”  At the hearing, Dr Talbot (who had not previously been told about the fall) agreed that the fall could have aggravated Ms Power’s annular tear.  Dr Stubbs did not agree, because he was of the view that she no longer suffered from the injury at the time of the fall.  I have already found that it is possible that Ms Power still continues to suffer the effects of the compensable injury.[5]  None of the evidence about the fall supports a conclusion that those effects had ceased before the fall.  It follows that the fall aggravated the existing back injury, rather than being a new cause of Ms Power’s back pain.

    Findings

    [5] See [40] above.

21. Ms Power fell over at a shopping centre on 6 February 2013.  That fall aggravated the compensable injury.

    Conclusion

22. Ms Power exaggerates her symptoms and her evidence is not entirely reliable.  But, as noted above,[6] Comcare bears a practical onus of demonstrating that the effects of the compensable injury have ceased.  Comcare has not discharged that onus.

    [6] See [20] above.

23. Ms Power continues to suffer from the effects of the compensable injury of 18 October 2010, which were aggravated by her fall at a shopping centre on 6 February 2013.

    Is Ms Power entitled to compensation for medical expenses or for payments for incapacity for work?

24. Section 16 of the SRC Act provides that, where an employee suffers an injury, Comcare must pay compensation in respect of the cost of medical treatment obtained in relation to the injury. Comcare is required to determine an amount of compensation that is appropriate to treatment that is reasonable for the employee to obtain in the circumstances. Because I have found that Ms Power continues to suffer from the effects of the compensable injury, Comcare is required to pay her compensation in respect of the cost of her medical treatment for that injury.

25. Section 19 of the SRC Act provides that Comcare must pay compensation to an employee who is incapacitated for work as a result of an injury. Some evidence was presented in this review as to Ms Power’s capacity to work,[7] but none of it is recent.  The appropriate course is for me to remit this question to Comcare for its determination.  No doubt Comcare will make its decision on the basis of more recent evidence of Ms Power’s capacity to work.

    [7]     For example, on 11 November 2010, Dr Ward certified Ms Power unfit for work for a month.  On 13 May 2011, Dr Sudarshini Pranavan certified her fit for modified duties, with limitations.  On 2 October 2012, Dr Talbot said that she was fit to work limited administrative office duties (see [32] above).  On 4 February 2014, Dr Watson said that she was not able to return to work in any capacity.

26. Under s 19, the amount of any compensation paid for incapacity for work is calculated having regard to (amongst other things) the employee’s normal weekly earnings. At the time of the compensable injury, Ms Power was working on contract on a casual basis. As the Tribunal in Jagtenberg and Australian Postal Corporation pointed out:

    The situation of employees working under temporary contracts is not specifically provided for under the Act.  The whole of the facts and circumstances surrounding the employment must be taken into account.[8]

    Any assessment of Ms Power’s capacity to work would also need to take into account any psychological condition from which she may be suffering.

    Does Ms Power suffer from a psychological condition which was significantly contributed to by her compensable back injury?

    [8] [1998] AATA 600 at [36] per Burton SM and Miller M.

27. In his report on 2 April 2013, Dr Talbot suggested that Comcare obtain a psychiatrist’s report on Ms Power, in case there were any “undiscovered non-organic factors” that might have been contributing to her complaints of pain.

28. In his report on 19 December 2013, Dr Stubbs expressed his view that Ms Power no longer—and never had—suffered from the compensable injury.  He also said that Ms Power might be suffering from a “factitious or malingering disorder”.  At the hearing, Ms Power’s counsel argued that, in doing so, Dr Stubbs was giving a psychiatric opinion, which he was not qualified to give.  Dr Stubbs did, in his report, give his opinion about Ms Power’s mental state.  But he did so speculatively, having concluded that Ms Power’s back injury was “producing little in the way of pain and disability”, and he suggested that Comcare obtain a psychiatrist’s opinion.  I do not give his evidence any weight to the extent that it relates to Ms Power’s mental state.

29. Dr Robert Lewin is a consultant psychiatrist.  He was given a copy of Dr Stubbs’s report.  He examined Ms Power on 8 August 2014, and provided reports on 8 August and 7 October 2014.  Ms Power did not complain to him about a psychological condition, but he concluded in his first report that she was suffering from an adjustment disorder with mixed features of anxiety and depressed mood.  One of the causes of her condition, he said, was the pain she was experiencing.  Her condition, he said, was not such as to impair her capacity for work.

30. In his second report, Dr Lewin said that he was not able to form an opinion as to whether Ms Power was malingering.  He also declined to give an opinion as to whether Ms Power suffered from a factitious disorder, because that would require a value-judgment about an individual’s motivation.  “My profession”, he said, “generally gives the ‘patient’ the benefit of the doubt …  That is the course that I have taken.”  At the hearing, he said that the question whether someone is lying is a matter for the Tribunal.

31. Dr Lewin identified a number of causes of Ms Power’s adjustment disorder. At the hearing, he said that her emotional response to pain was one of several contributing factors. It was not, he said, the sole cause but it was “more than trivial”. Dr Lewin declined an invitation, from counsel for Ms Power, to say that Ms Power’s pain had contributed to her psychological condition to a “significant degree”—a term used in the SRC Act.

32. In his report on 4 February 2014, Dr Watson diagnosed Ms Power as suffering from (amongst other things[9]) an adjustment disorder with depressed mood.  At the hearing, he said that, in his opinion, the psychological condition developed as a result of the compensable injury.

    [9] See [22] above.

33. Section 7(4)(a) provides that “an employee shall be taken to have sustained an injury, being a disease, … on the day when … the employee first sought medical treatment for the disease”.  From the evidence in this review, it appears the first treatment that Ms Power received that was directed towards a psychological condition was when Dr Watson prescribed her an anti-depressant on 18 August 2013.

    Findings

34. Having considered this evidence, I make the following findings.  Ms Power suffers from an adjustment disorder with mixed features of anxiety and depressed mood, with a date of injury of 18 August 2013.  The pain that she experienced from the compensable injury contributed to a significant degree to her developing that adjustment disorder.

35. In relation to this last finding, I note that Dr Lewin said that Ms Power’s pain was a “more than trivial” cause of her psychological condition. Section 5B(3) of the SRC Act provides that “significant degree” means “a degree that is substantially more than material”. I think that my finding is consistent with Dr Lewin’s characterisation.

    Is Ms Power entitled to compensation for her psychological condition?

36. It follows, from my findings at [83] above, that Ms Power is entitled to compensation for her psychological injury under s 14 of the SRC Act. Under s 16, Comcare is required to pay her compensation in respect of the cost of her medical treatment for that injury.

37. I have already decided to remit to Comcare the question whether Comcare is required by s 19 to pay Ms Power compensation for incapacity for work as a result of her compensable injury. In considering Ms Power’s capacity to work, Comcare must also have regard to the effect of her psychological injury. No doubt Comcare will obtain further evidence before it makes its determination on this question. However, I note that Dr Lewin reported on 8 August 2014 that Ms Power’s psychological condition was not such as to impair her capacity for work.[10]

    [10] See [78] above.

    Conclusion

38. Ms Power continues to suffer from the effects of the compensable injury of 18 October 2010, which were aggravated by her fall at a shopping centre on 6 February 2013.  Ms Power also suffers from an adjustment disorder, with a date of injury of 18 August 2013.  Comcare is required to pay her compensation in respect of the cost of her medical treatment for those injuries.

39. I remit, for Comcare’s determination, the following question: is Comcare required by s 19 of the SRC Act to pay Ms Power compensation for incapacity for work and, if so, how much?

    Costs

40. Section 67 of the SRC Act relevantly provides:

    (8)  Where, in any proceedings instituted by the claimant, the Administrative Appeals Tribunal makes a decision:

    (a)  varying a reviewable decision in a manner favourable to the claimant; or

    (b)  setting aside a reviewable decision and making a decision in substitution for the reviewable decision that is more favourable to the claimant than the reviewable decision;

    the Tribunal may, subject to this section, order that the costs of those proceedings incurred by the claimant, or a part of those costs, shall be paid by the responsible authority.

    …

    (9)  Where the Administrative Appeals Tribunal gives a decision setting aside a reviewable decision and remitting the case for re-determination by the determining authority, the Tribunal shall, subject to this section, order that the costs of the proceedings before it incurred by the claimant shall be paid by the responsible authority.

    In this review, the responsible authority is Comcare.

41. My decision in this review involves setting aside part of two reviewable decisions and making a decision in substitution that is more favourable to Ms Power (s 67(8)(b)); and setting aside part of those reviewable decisions and remitting the case for determination by Comcare (s 67(9)).  Accordingly, I order that the costs of the proceedings in this review be paid by Comcare.

I certify that the preceding 90 (ninety) paragraphs are a true copy of the reasons for the decision herein of Senior Member Popple

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

Associate

Dated 30 June 2015

Dates of hearing	18–20 May 2015
Counsel for the Applicant	Mr Steven Whybrow
Solicitors for the Applicant	Blumers Lawyers
Counsel for the Respondent	Ms Kristy Katavic
Solicitors for the Respondent	Sparke Helmore