Thomas and Comcare (Compensation)

Thomas and Comcare (Compensation) [2020] AATA 2942 (13 August 2020)
Division:GENERAL DIVISION
File Numbers:2017/7526
2017/7527

Re:Christine Thomas
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Dr Stewart Fenwick, Senior Member
Date:13 August 2020
Place:Melbourne

The decision of the delegate of Comcare dated 21 November 2017 is set aside and remitted for reconsideration of entitlements under s 16, s 19, and s 29 of the Safety, Rehabilitation and Compensation Act 1988 in accordance with the direction that Ms Thomas suffers from chronic ongoing lumbar pain and referred left leg pain arising from neurological change consequent upon her initial workplace injury;
2.The decision of the delegate of Comcare dated 15 December 2017 is set aside and remitted for reconsideration of entitlements under s 16, s 19, and s 29 of the Safety, Rehabilitation and Compensation Act 1988 in accordance with the direction that Ms Thomas suffers from the psychological conditions of chronic pain syndrome (also known as somatic symptom disorder) with elements of anxiety and depression consequent upon her initial workplace injury;
3.The Respondent pay the Applicant’s costs and disbursements pursuant to s 67 of the Safety, Rehabilitation and Compensation Act 1988.

.........................[sgd]...............................................
Senior Member
Catchwords
COMPENSATION – initial lumbar spine condition – chronic pain syndrome – adjustment disorder – depression – anxiety – whether injury other than a disease or ailment – entitlement under sections 16, 19 and 29 of the SRC Act – decision set aside and remitted
Legislation
Safety, Rehabilitation and Compensation Act 1988
Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007
Cases
Canute v Comcare (2006) 226 CLR 535
Comcare v Canute (2005) 148 FCR 232
Comcare v Lofts (2013) 217 FCR 220
Military, Rehabilitation and Compensation Commission v May (2016) 257 CLR 468
Prain v Comcare (2017) 256 FCR 65
REASONS FOR DECISION
Dr Stewart Fenwick, Senior Member
13 August 2020
BACKGROUND

Ms Thomas applied to the Tribunal for review of two decisions by Comcare in relation to physical and mental conditions for which liability had previously been accepted, sustained as a result of a fall at work in 2002.
In a decision dated 21 November 2017, a delegate of Comcare affirmed a decision made on 12 July 2017 that the Respondent had no present liability for medical expenses, incapacity payment and household services in respect of an ‘intervertebral disc disorder – lumbar region and lumbar paravertebral myalgia’ (the back conditions).
In a decision dated 15 December 2017, a delegate of Comcare affirmed a decision made on 3 November 2017 that the Respondent had no present liability for medical expenses, incapacity payments and household services in respect of a chronic pain syndrome, depressive disorder and adjustment disorder (the psychological conditions).
Liability had previously been accepted on 3 December 2002 for ‘lumbar sprain’. A later review by Comcare in November 2011 led to a decision of continuing liability for this condition. A further decision of 7 May 2012 accepted liability for the secondary conditions of lower lumbar paravertebral myalgia, with a date of injury of 30 September 2007, and adjustment reaction with anxious mood, depression, and chronic pain syndrome, with a date of injury 29 May 2008.
Ms Thomas sustained the fall between the carpark and her office in Canberra on the morning of 12 November 2002 when she slipped on an icy path and landed on her lower back and coccyx. She suffered from back pain and also pain radiating to her left calf. Ms Thomas was incapacitated and unable to work until the end of January 2003. She made a gradual return to work with hours increasing over a number of years and returning to her pre-injury level. In about May 2009 Ms Thomas ceased work on maternity leave (at around which time she moved to Melbourne) and never returned to work, retiring on invalidity grounds in February 2017.
Comcare lodged T-documents with the Tribunal and, prior to the hearing, provided a report of one of Ms Thomas’ treating practitioners, Dr Andrew Rososinski, dated 10 January 2012 sourced from summons material (Exhibit R1). A statement from Ms Thomas, dated 20 January 2020, was received at the hearing (Exhibit A1), as well as the following medical reports: Dr Peter Blombery, pain specialist and cardiologist, dated 25 September 2018 (Exhibit A2); Mr John O’Brien, orthopaedic surgeon, dated 4 March 2020 (Exhibit A3); Dr David Kennedy, sports and industrial physician, dated 16 November 2016 (Exhibit A4); and, Associate Professor Nick Paoletti, psychiatrist, dated 27 April 2018 (Exhibit A5). Both parties provided lists of authorities prior to the hearing.
Evidence was given at the hearing over three days by Ms Thomas and the following medical practitioners: Dr Katrina Reid; Dr Blombery; Mr O’Brien; Dr Kennedy; Associate Professor Paoletti; Dr Tony Kostos, rheumatologist, ; and Dr Brendan Spence, consultant psychiatrist.
LEGISLATION
Liability for compensation arises under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (the Act) in respect of an injury suffered by an employee that results in death, incapacity for work, or impairment.
Injury is defined in s 5A of the Act to encompass both injuries that arise ‘out of, or in the course of, the employee’s employment’, including an aggravation thereof, and a disease suffered by an employee. Disease is defined in s 5B(1) to be an ailment, or an aggravation thereof, ‘that was contributed to, to a significant degree, by the employee’s employment’. Significant degree is defined in s 5B(3) as ‘a degree that is substantially more than material’.
The definition of disease was amended by the Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007. Prior to this (between 1988 and 2007) the relevant causal test was whether employment contributed ‘in a material degree’ to the condition (see s 4(1) of the Act prior to 13 April 2007).
Ailment is defined in s 4(1) as meaning: ‘any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)’.
Under s 5B(2) of the Act a number of matters may be taken into account when determining whether the ailment, or its aggravation, meets the causal test in s 5B(1):
(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.
Specific forms of compensation relevant to this matter arise under the following provisions of the Act:
(a)compensation for medical treatment ‘obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances)’ (s 16);
(b)compensation for injuries that result in incapacity for work (s 19);
(c)compensation of reasonable amounts for household services obtained by the employee (s 29).
EVIDENCE
A significant amount of medical material is included in the T-documents, some of which formed the basis of examination at the hearing. I include here a summary of this wider body of material to provide background with respect to Ms Thomas’ conditions.
(a)An unspecified imaging report dated 19 November 2002 states ‘vertebral alignment and the bone architecture are both normal’ and slight disc height reduction noted at L1/2 and L5/S1 (T4, p 13);
(b)A report of a CT scan dated 6 December 2002 (T6, p 15) records:
(i)mild anterior and lateral annular bulge at L2/3 with no disc protrusion;
(ii)diffuse annular disc bulge at L3/4 with no disc protrusion and ‘no nerve root or thecal sac impingement’;
(iii)diffuse annular bulge at L4/5 with no disc protrusion and ‘the annular bulge abuts the thecal sac which is not significantly compressed or displaced’ and no nerve root impingement seen; and
(iv)a diffuse annular bulge at L5/S1 with no nerve root or thecal sac compression;
(c)A report to Comcare by Dr Rososinski, who was Ms Thomas’ treating GP at the time, dated 23 February 2004 (T7, pp 16-17) records:
(i)No pre-existing condition;
(ii)Acute and continuing pain from injury to lower back ‘with radiation down her left leg to calf’; and
(iii)Investigations including CT scan show no nerve impingement, may need MRI;
(d)Dr David Bornstein, consultant orthopaedic surgeon, stated in a report to Comcare dated 9 September 2008 (T11, pp 29-35), that Ms Thomas had no localising neurological deficits in the legs and had ordinary age-related degenerative change at three lumbar discs. He stated further ‘the only new episode that may be present here is psychological’;
(e)A report of a CT scan dated 29 June 2011 (T14, pp 42-43) concludes: left sided disc bulge at L4/5 level touching but not displacing the L5 nerve root; mild disc bulges at L2/3, L3/4 and L4/5; no neural compression;
(f)A decision of Comcare dated 7 May 2012 (T20, pp 62-65) refers to a report of Dr Graeme Griffith, consultant surgeon, which does not appear in the T-documents. This report of 23 September 2011 observes Ms Thomas had persisting back pain, ‘disc lesions since the injury’, and includes a diagnosis of lower lumbar persistent myalgia;
(g)Dr Griffith reported to Comcare on 9 October 2011 (T17, pp 46-53) that ‘the characteristics of the pain … in the immediate post-injury period and subsequent weeks strongly suggest disc lesions … [it] is entirely consistent with an acute disc lesion rather than a simple muscle strain’;
(h)The report of an MRI dated 11 October 2011 (T18, p 55) concludes there is minimal degenerative change in the form of facet osteophytes at L3/4, L4/5 and L5/S1 with narrowing and contact of the neural exit at the first two levels, respectively, and no compression at any level;
(i)A further report of Dr Griffith dated 18 October 2011 (T18, p 54) discusses the results of the above MRI stating it reveals no significant disc lesion and no more than normal degenerative change which do not explain Ms Thomas’ chronic pain state. He continues: ‘It is possible for the disc lesions seen several months ago in the C/T to have desiccated … the immediate cause of her pain syndrome is a neuropathic pain state’;
(j)The Comcare decision of May 2012 further cites a report also not included in the T-documents from Mr Paul Mutahir, Ms Thomas’ treating psychologist, dated 1 January 2012. In this report Mr Mutamir notes depression and anxiety since the fall and states ‘it is not unusual for a person with a chronic pain condition to begin to experience’ these conditions;
(k)Dr David Prestage, consultant occupational physician, reported to Comcare on 5 June 2012 (T22, pp 67-76) that there is no evidence of an underlying or a pre-existing condition and diagnosed a secondary chronic pain syndrome, with reference to the report of Dr Zeeva Cohen;
(l)Dr Cohen, consultant psychiatrist, in a report also dated 5 June 2012 (T23, pp 77-86) diagnosed chronic pain disorder and chronic adjustment disorder with depressed mood. She found that:
[Ms Thomas] appears to have been a previously high achiever however I do wonder with her restrictive upbringing whether she has unmet psychological needs. She described feeling a loss of identity, functionality and impact on her capacity to be a partner and mother on account of her perception of pain … She described significant anhedonia and a preoccupation with pain.
Dr Cohen found that Ms Thomas’ mental state was secondary to her ‘somatoform pain condition’, and was not related to her work;
(m)Dr Griffith, in a report to Comcare dated 9 April 2014 (T30, pp 112-116), restates the injury sequelae as including ‘left paracentral L4/5 disc bulge (almost certainly associated with annular tear) – the latter not seen on CT, only on MRI’. He states further that there has been ‘progression of facet joint arthritis when compared with films taken within three weeks of injury’. Dr Griffith also states that Ms Thomas’ ‘current clinical situation is a manifestation of both the physical and psychological manifestations of her injury. Both interact and co-exist currently’;
(n)Dr Peter Farnbach, consultant psychiatrist, stated in a report to Comcare dated 3 June 2014 (T32, pp 119-125), that in comparison to the review and diagnosis by Dr Cohen two years prior, Ms Thomas’ condition had developed into major depression from an adjustment disorder with moderate to moderately-severe symptomatology; and
(o)A report on an MRI scan dated 17 October 2014 (T36, p 134) states there is no focal or destructive osseous lesion with ‘note made of some lower lumbar spine degenerative change with at least moderate narrowing of the L5-S1 neural foramina’.
It is also necessary to set out briefly the key findings of medical reports from expert witnesses who gave evidence at the hearing.
With respect to Ms Thomas’ back conditions:
(a)Dr Reid prepared multiple reports and states in her report dated 24 October 2017 (T57 pp 254-295) that Ms Thomas has ongoing daily issues with chronic pain and depressed mood. Her physical capabilities and tolerances include: walking, 10 minutes; driving, 20 minutes; standing/sitting, 10 minutes before change of position; inability to perform work requiring bending; and, sleep severely affected.
(b)Dr Blombery (Exhibit A2) observed tenderness over lumbar spine with some restrictions of movement and a ‘paraspinal spasm’ and restrictions on straight leg raise (to 10 degrees) on the left side. ‘There was a reduction in light touch sensation in the lateral area of the left calf extending into the foot …’ attributed to the left L5 distribution. Her initial condition has been ‘complicated by the development of a pain syndrome, where there is sensitisation of pain nerve pathways’.
(c)Mr O’Brien (Exhibit A3) found on examination that lumbar spine movement was limited by the complaint of back pain. Ms Thomas reported chronic low back pain radiating into the buttocks and the posterior of the left leg into the foot. Ms Thomas demonstrated an active sit-up showing ‘good lumbar flexion and full unrestricted passive straight leg raising’. Mr O’Brien concluded that the ‘physical signs related to the lumbar spine are entirely subjective … Given the history one would consider this patient now presents with chronic non-specific low back and bilateral leg pain’. He acknowledged the history of ongoing pain since the fall but Ms Thomas’ presentation was ‘complicated by psychosocial issues’ and states she is totally incapacitated for work.
(d)Dr Kennedy prepared reports dated 26 October 2016 (T44, pp 183-189) and 16 November 2016 (Exhibit A4). In the latter report he notes that Ms Thomas stated that she has constant severe pain in the lower back and radiation of pain into the left buttock and running down the left leg to the foot, and particularly the fourth and fifth toes. He noted tenderness and muscle spasm in the lumbar spine with restricted movement. Dr Kennedy administered positive leg raise tests and also found reduction in strength of foot extension, worse on the left side and ‘altered sensation to light touch and pin prick over the outer side of the left foot, extending to the fourth and fifth toes’.
(e)Dr Kostos prepared reports dated 15 July 2013 (T26, pp 96-105), 20 March 2017 (T47, pp 205-220) and a supplementary report dated 18 May 2017 (T49). Broadly similar observations on physical examination are made in both reports being: spine movements ‘markedly restricted with pain in all directions’ with diffuse midline tenderness; and, femoral nerve test negative, and pain on sciatic nerve stretch test, ‘but the same result was noted with both knees bent’. In both primary reports, Dr Kostos concludes there is no objective physical abnormality in Ms Thomas’ lumbar spine. In his first report Dr Kostos considers that non-organic findings explain her condition which has been ‘medicalised by doctors’. In his second report he states that Ms Thomas ‘may have developed a lumbar spine sprain or strain as a result of the fall … but this is clearly not the cause of her ongoing problems’.
With respect to Ms Thomas’ psychological conditions:
(a)Associate Professor Paoletti prepared a report dated 31 July 2015 (T39, pp 138-149) as well as his 2018 report (Exhibit A5). His observations and conclusions are largely consistent in both reports. Associate Professor Paoletti records: depressive and anxious ideation; avoidance of socialisation; rumination and being very focused on her pain; low self-esteem; and, reduced concentration. He states that Ms Thomas’ work capacity is affected by her emotional struggle to function day-to-day and has no capacity for sustainable employment. With respect to ‘psychosocial factors’ Associate Professor Paoletti notes the breakdown of Ms Thomas’ marriage, her social and recreational habits have been hampered, and she has reduced quality of life. His diagnosis is unspecified depressive disorder, unspecified anxiety disorder, somatic symptom disorder with predominant pain, and relationship distress.
(b)Dr Spence prepared a number of reports dated: 4 August 2015 (T40, pp 150-163); 19 May 2016 (T42, pp 166-178); and, 17 August 2017 (T54, pp 237-249).
(i)In his first report Dr Spence diagnoses somatic symptom disorder with predominant pain, and adjustment disorder with mixed anxiety and depressed mood. He states that it is difficult to determine when her condition emerged in the lead up to her referral to a psychologist in 2011, but that Ms Thomas describes no consistent diagnosis or symptoms prior to 2009. With respect to relevant history and main contributing factors Dr Spence highlights: a previous relationship characterised by abuse; unsupportive long-term relationships including with her parents; and, significant debt.
(ii)In his second report Dr Spence expands upon the diagnosis of somatic symptom disorder with reference to the diagnostic criteria. He notes that Ms Thomas struggles with parenting and has some difficulties meeting her own care needs. Dr Spence states that she ‘has developed a role as an invalid’.
(iii)In his third report Dr Spence notes that Ms Thomas expressed upset and discontent at her invalidity retirement. He also observes that she has developed ‘a more realistic’ attitude to living with her ongoing pain. However, he also reports that Ms Thomas ‘continues to present a disempowered and passive outlook upon her life’. He refers to his previous reports with respect to the way Ms Thomas’ psychological factors underpin her experience of chronic pain. He also states that despite treatment including for pain management, Ms Thomas is very unlikely to be able to recover enough to engage in part-time employment. Dr Spence maintains the diagnosis as described in his first report.
Evidence at hearing
Ms Thomas
Ms Thomas confirmed the contents of her written statement (Exhibit A1). In summary it states:
(a)Ms Thomas was born overseas, moving to Australia with her family when she was four years old. She grew up in Melbourne, graduated from university and married in 1996, separating in 2000. Ms Thomas had a long-term relationship with another partner in Canberra between 2001 and 2012. She had children with this partner who were born in mid-2009 and 2010 respectively. The children were born in Melbourne following her return from Canberra;
(b)Ms Thomas commenced in the public service in Melbourne and later moved to Canberra where she lived ‘by 2002’. In November that year in the early morning she slipped on an icy path falling on her tail bone. She experienced a sharp pain and could not get up but was able to crawl to her car;
(c)Ms Thomas consulted a GP within a few days, underwent an x-ray which indicated disc height reduction and took time off work. She has ‘never been free of the pain in my back from the day of the injury in November 2002 to the present day’;
(d)The pain interfered with her ability to work in her role as an Assistant Director or Senior Policy Advisor, causing difficulty concentrating and being able to sit for extended periods. ‘After years of this sort of difficulty with pain and trying to work I became depressed. The pain interrupted my sleep and I couldn’t get proper rest’;
(e)In late 2008, Ms Thomas was pregnant with twins and lost one with a miscarriage and before the birth of the surviving twin she returned to Melbourne with her partner. He ‘became disenchanted with family life’ and engaged in drugs and with motorcycle clubs;
(f)Ms Thomas has been prescribed a ‘wide range of pain medications and anti-depressants’. She continued to seek treatment and as the pain and depression continued Ms Thomas engaged with pain management possibly in 2014;
(g)Ms Thomas was invalidity retired from the public service in 2017;
(h)Low back pain extending into her legs had been a long-term stressor in her life causing loss of sleep, depression and loss of a career.

The report of Dr Rososinski (Exhibit R1) formed the basis of the initial examination of Ms Thomas at the hearing and was referred to frequently in the examination of the medical witnesses. In summary, Dr Rososinski states in this report:
(a)Ms Thomas first saw him in November 2002 complaining of lower back pain. On examination she had tenderness ‘over the lower lumbar region and coccyx’ with some limitations of movement;
(b)An x-ray of the lumbosacral spine and coccyx dated 19 November 2002 showed ‘no fracture and no dislocation’;
(c)When reviewed in December 2002 Ms Thomas ‘stated the pain in the lower back was worse with radiation down the left leg to her calf’;
(d)Dr Rososinski arranged a CT scan which ‘showed no evidence of thecal sac or nerve root impingement … no central canal, lateral recess or foraminal stenosis. There were degenerative annular bulges at L3/4, L4/5 and L5/[S1][1] levels’;
(e)Ms Thomas was advised in early 2003 to attend physiotherapy and to increase her hours at work to two hours a day, three times a week, rising to four hours a day, three times a week, and was also reviewed for a return to full time work;
(f)When reviewed in May 2008 Ms Thomas was working full time and continuing with physiotherapy, remedial massage and a gym program, and in June Ms Thomas was reviewed due to continuing back pain at which time she was working five hours a day, five days a week;
(g)When seen in August 2008, Ms Thomas was concerned with her increasing workload causing her stress with depression, and Dr Rososinski states that Ms Thomas had also mentioned in May 2008 that her worsening lower back pain was ‘causing her to be stressed and depressed’;
(h)He ceased treating Ms Thomas in April 2009 prior to her departure to live in Melbourne.
[1] It was accepted at the hearing that the original appears to contain a typographical error referring here to the ‘L5/5’ level.
Ms Thomas confirmed in her evidence the key facts outlined in the report including her graduated return to work and physical therapy program. She stated that she did return to full time duties but ‘always’ experienced lower back pain. In cross-examination Ms Thomas stated that she had not experienced any problems with her back prior to the injury. She described the pain as including a ‘nerve’ pain down her left leg, and a constant pain that was dull and sharp at the same time. Ms Thomas stated that pain medication ‘took the edge away’ from her pain.
In evidence Ms Thomas stated there had been no change in her supervisory responsibilities and she reached a point where she could not cope. Ms Thomas stated that she gained no particular relief from cognitive behaviour therapy for her psychological conditions. In cross- examination she stated that physiotherapy had provided short term relief of her back pain.
Ms Thomas confirmed in evidence her experience of stress and depression as reported by Dr Rososinski. She stated as the pain never departed, it ‘stressed her out’ and made her reflect on what she could no longer do. Her work involved writing reports, requiring her to sit for extended periods. Ms Thomas stated she was also required to travel for work both locally around Canberra by car and also by domestic air flights. She found that sitting for periods of longer than 10-15 minutes caused pain and therefore she needed to shift position and stand up to relieve it.
Ms Thomas agreed that her symptoms had simply got worse with no triggering event when her symptoms increased around 2008-2009 as described in the medical evidence. She stated that her situation became ‘cyclical’ in that the pressure to do the same amount of work on restricted hours led to the pain becoming progressively worse. Ms Thomas stated she was unable to escape the pain even in bed and it affected her sleep.
Ms Thomas stated her personal relationship suffered and that intimacy in the relationship decreased due to her conditions, and she became ‘less social’. She also agreed that it affected her capacity to parent her young children, albeit in cross-examination Ms Thomas stated that she considered her position not significantly different from any young mother. Ms Thomas agreed that her son, now in school attending Grade 4, was diagnosed with ADHD and had been receiving medication for this condition for the past two years.
Ms Thomas appeared reluctant to accept that medical reports cited her as experiencing violence or threats of violence from her former partner, but she accepted ultimately that this was correct. Her partner was frequently absent from the home, and also abused alcohol and drugs. Ms Thomas stated she asked him to leave the relationship (which ended in 2012) after the police ‘got involved and took out an intervention order’. Her former partner, the father of her children, moved back to Canberra and Ms Thomas stated that he had no role in the parenting of her children.
Ms Thomas agreed that there were a range of other stressors she had faced in the past including managing debts incurred by her former partner and the deteriorating health of her parents. In cross-examination Ms Thomas acknowledged that her parents had not approved of her first marriage but she had later made up with them. She also acknowledged that her former partner’s threats had included threats to kill. Ms Thomas further acknowledged that she had experienced miscarriages.
Dr Reid
Dr Reid stated she is a General Practitioner who has treated Ms Thomas in Melbourne since 2010. She confirmed her prescription in the past, and continuing, of anti-depressants and pain medication. Dr Reid managed Ms Thomas for both personal and work-related medical consultations. In cross-examination Dr Reid stated that Ms Thomas’ initial injury has resolved but she has a chronic pain syndrome which could be likened to having the ‘volume turned up on the nerves’. In her opinion the pain syndrome and adjustment reaction would not have arisen were it not for the injury. Dr Reid stated that her referral of Ms Thomas for psychological treatment was for a combination of her relationship issues and ongoing back issues.
Dr Blombery
Dr Blombery stated his professional expertise as a pain specialist and cardiologist. He examined Ms Thomas in September 2018 who complained of ongoing back pain at the time. Dr Blombery confirmed in evidence the observation in his report (Exhibit A2) of ‘reduction in light touch sensation in the lateral area of the left calf extending into the foot … in the L5 distribution’. Dr Blombery restated the observation in his report that the reason for this sensory impairment was unclear.
Dr Blombery was asked to explain further observation made in his report that ongoing pain may also be ‘caused by previously asymptomatic degenerative changes in the lumbar spine, which have been rendered symptomatic by the fall’. He stated that most people, even from the age of 20 and at least from age 30 onwards, have asymptomatic degenerative change of the lumbar spine. An injury or fall may lead to movement in the area causing pain. Dr Blombery considered that pain persists in a small number of people (10-15%) due to the development of sensitisation where nerves fire excessively. This effect has been shown through brain scans.
In the opinion of Dr Blombery, the pain syndrome arose around six months following the injury because pain after that time is ‘almost certainly evidence of chronic pain syndrome’. This was supported by the material in the report of Dr Rososinski.
In cross-examination Dr Blombery accepted that spine imaging from 2011 had shown no major abnormality present and that it was only ‘possible’ that Ms Thomas had experienced some nerve root compression prior to this time. He agreed that scans do not show the cause of pain, and that all degenerative change does not lead to pain. Dr Blombery stated that he relied upon Ms Thomas’ own report that she had no history of back pain prior to the fall.
In re-examination, Dr Blombery stated that the description of the CT scan referred to in Dr Rososinski’s report demonstrated at the age of 33 Ms Thomas had evidence of significant degenerative change. He stated that the majority of patients experiencing pain radiating into the leg have no signs of nerve root compression and therefore pain is not necessarily the result of such compression. It could arise from irritation.
Mr O’Brien
Mr O’Brien confirmed his medical specialty as an orthopaedic surgeon and stated that the history set out in his report (Exhibit A3) was taken predominantly from Ms Thomas when examined in February 2020. When presented in evidence with a summary of Dr Rososinski’s report Mr O’Brien stated that he assumed from the facts given that Ms Thomas had low back pathology. He stated he was unable to provide an exact pathology underlying the pain because the degenerative changes pre-dated the fall. The exact aetiology of the pain was therefore not clear.
When asked about whether the description in his report of Ms Thomas’ pain being ‘a constant problem somewhat fluctuating in severity’ represented a common situation, Mr O’Brien stated that this was ‘well known as a natural history for those going on to experience chronic pain’ but that chronic pain is uncommon. He stated that this was consistent with Dr Blombery’s diagnosis that the injury rendered her condition symptomatic and that she progressed from an acute to a chronic state. In cross-examination, Mr O’Brien stated that chronic pain can cause sufferers to become frustrated and moody and undoubtedly chronic pain is complicated by these issues.
Dr Kennedy
Dr Kennedy stated that his specialisation is sports and industrial medicine and confirmed that he had experience in arthroscopic surgery. Dr Kennedy examined Ms Thomas and provided reports in October (T44) and November 2016 (Exhibit A4). In examination he was asked to explain the observations in his reports about a June 2011 CT scan: ‘although there are no neural signs of compression there are clinical signs of irritation to the spinal theca and the lower lumbar and upper sacral spinal nerve roots bilaterally’. Dr Kennedy stated that larger forms of disc damage can compress nerves and smaller levels of damage can cause chemical inflammation of the nerve root, with similar signs to that of a larger [disc] protrusion.
With respect to the clinical observations recorded in Dr Rososinski’s report, Dr Kennedy stated that they indicated an injury to the low back with problems in the lower extremities. This suggested, on the balance of probabilities, that the injury exacerbated pre-existing degenerative changes including at the L4 and 5 levels. Dr Kennedy stated the physical signs were still present in late 2016, 14 years later.[2] He considered there had been peripheral inflammation of the nerve roots and the chronic pain was due to the injury.
[2] Being pain radiating to the left buttock, thigh calf and foot (Exhibit A4, p 1).
Dr Kennedy was referred to the statement in his October 2016 report that Ms Thomas exhibited ‘significant myofascial injury involving the lumbosacral spine and the sacroiliac and sacrococcygeal regions’ (T44, p 185). He stated that this indicated an injury to the tendon or ligament structures and was the cause of ongoing pain. The implication of the left leg showed this was more toward the lower lumbar nerve root.
In cross-examination Dr Kennedy stated that his diagnosis correlated with the radiological and clinical findings. A clear scan does not preclude lower back pain and Dr Kennedy stated that the clinical findings on the left side were consistent with the nerve root distribution. Ms Thomas’ clinical history and his findings on examination indicated exacerbation of lumbar spondylosis, rendered symptomatic by the fall.
Associate Professor Paoletti
Associate Professor Paoletti confirmed his qualification as a psychiatrist in private practice and with an appointment to the Austin Hospital. He first examined Ms Thomas in July 2015 and re-examined her in April 2018 and adopted his reports (T39 and Exhibit A5 respectively). He confirmed his diagnosis (unspecified depressive disorder, unspecified anxiety disorder, somatic symptom disorder with predominant pain, and relationship distress with spouse or intimate partner and that employment remains a significant contributing factor ‘through continuity of symptoms and through the content of mental processes’ (Exhibit A5, p 9)).
In cross-examination Associate Professor Paoletti stated that he ‘would have read’ the detailed history of Ms Thomas’ life circumstances contained in medical reports provided prior to his examination, including that of Dr Spence, albeit this history is not specifically set out in his reports. His opinion includes consideration of other material provided. Asked about the relationship between life stressors and the experience of pain, Associate Professor Paoletti stated that stress affects pain and when there is a demonstrable physical injury then stress can exacerbate it. He stated there can be different approaches depending upon the individual; some respond in a Monty Python-style ‘it’s only a flesh wound’ manner, and others, who have a propensity to ‘somatisation’, feel pain in an amplified way.
Dr Kostos
Dr Kostos stated his professional specialisation as musculoskeletal medicine and confirmed that he examined Ms Thomas on two occasions, and prepared two reports dated 15 July 2013 (T26, pp 96-105) and 20 March 2017 (T47, pp 205-220). Dr Kostos explained in his evidence his observations from a physical examination of Ms Thomas which supported his diagnosis of chronic pain syndrome with no physical abnormality of the lumbar spine (T26, p 100). He was specifically asked to expand on his statement that ‘there clearly are a number of nonorganic findings as described by Waddell’. Dr Kostos stated that this referred to the theory that non-organic reasons lie behind cases of chronic back pain where there are no organic causes evident. He stated that the specific movements which he elicited from Ms Thomas indicated there was ‘no susceptive cause’ for her back pain.
Dr Kostos stated that he considered Ms Thomas’ condition had been ‘medicalised’ by doctors meaning that when told that a scan demonstrated a physical cause for her pain this was a ‘powerful cause of pain syndrome’. In his opinion, the radiology in this case cannot be used to determine the cause of pain. Such signs are equally common in people with no back pain.
With reference to a 2011 CT scan result (disc bulge at L4/5 touching but not compressing or displacing the nerve) (T14, p 42) Dr Kostos stated that caution was required when interpreting scans. He stated that there were differences between 2002 and 2011 scans and that, usually, a bulge touching a nerve is not a problem and there was also no neural compression in this case. In his opinion, the scan result is a case of ‘overreporting’ in order to attempt to meet the request to identify a cause for Ms Thomas’ left-sided sciatica.
Dr Kostos was asked whether he agreed with the opinion of Dr Blombery that the fall had rendered symptomatic degenerative changes that were previously asymptomatic. He stated that this was not an evidence-based opinion and there was no evidence in the rheumatology literature to substantiate it. Dr Kostos stated that in his opinion, the physical examination of Ms Thomas which Dr Blombery conducted was ‘disjointed’ and included no test for non-organic symptoms.
With respect to Dr Kennedy’s findings, Dr Kostos stated that he considered his physical examination of Ms Thomas was also inadequate. He stated that if Dr Kennedy was relying on scan results in his diagnosis then this was not an evidence-based opinion. Dr Kostos stated there was little evidence Ms Thomas had a susceptive cause for her pain related to the fall.
In cross-examination Dr Kostos stated that the clinical observations of Dr Rososinski of the distribution of pain in Ms Thomas’ left leg in 2002 were of limited value as the treating doctor had not conducted adequate tests. Specifically, in his opinion, a straight leg raise in the absence of a sciatic nerve stretch test (hamstring) was uninterpretable. Dr Kostos agreed that aggravation of a pre-existing condition might arise from nerve irritation rather than impingement as such. However, in his opinion impingement would cause sciatica and this required a specific test, which was not conducted (in the case of Dr Blombery and Dr Kennedy). Dr Kostos stated that the implication of the left leg was in itself only a symptom. The L5 nerve refers to the lateral lower leg and S1 to the calf; the diagnoses of the other medical witnesses therefore demonstrated a lack of knowledge of anatomy.
Dr Kostos agreed that chronic pain syndrome involved the development by around 10% of patients of sensitisation which would result in them failing to obtain pain relief. He stated it was possible that this could arise from a predisposition in the individual but that there is considerable controversy about the role of trauma. Dr Kostos agreed that psychological factors had been identified as playing a role in Ms Thomas’ condition. He stated that the maintenance of chronic pain syndrome could arise if she believed that she had suffered an injury.
Dr Spence
Dr Spence confirmed his qualification as a psychiatrist and that he had prepared three reports concerning Ms Thomas’ psychological condition dated 4 August 2015 (T40, pp150-163), 19 May 2916 (T42, pp166-178), and 17 August 2017 (T54, pp 237-249). Dr Spence confirmed that his first report records that Dr Rososinski reported no history of psychological issues, and that Ms Thomas had consulted him in respect of ‘her increasing workload causing her stress with depression’. He also confirmed his reporting of the impact that loss of her work role had on Ms Thomas from May 2009, and also the ‘big impact’ of the loss of the twin during her pregnancy.
Dr Spence was asked to elaborate on the relationship between life stressors and Ms Thomas’ experience of pain. He stated that in assessing chronic pain syndrome it is necessary to check the individual’s understanding of how their context affects their perception of pain. In his opinion this relationship has to be understood in order for people to recover from this condition. Dr Spence stated it is difficult to treat someone fixed on a sole physical cause for their pain, as observed in Ms Thomas.
With respect to his diagnosis of somatic symptom disorder, Dr Spence explained that ‘somatic’ related to the body and was the ‘modern version’ of chronic pain syndrome. He cited elements of the clinical definition found in his second report (T42, p 173) including physical symptoms disruptive of daily life and excessive thoughts, feelings and behaviour disproportionate to the seriousness of the symptoms. In response to a question from myself about the role of historical trauma in the clinical definition, Dr Spence stated that Ms Thomas had apparently experienced very serious recent trauma which was extremely relevant. In his opinion experiences are central to the condition. Dr Spence could not say how significant Ms Thomas’ experience of pain and disability at work were now, but her marriage and struggles with her children were very significant to her current problems.
In cross-examination Dr Spence confirmed that he had also diagnosed Ms Thomas with an adjustment disorder with mixed anxiety and depressive mood. Asked whether Ms Thomas’ views about the origins of her pain were valid, Dr Spence responded that ‘they are of interest’ and that this could be a factor in the medicalisation of her situation. He stated that her response to pain could be the result of very unconscious processes. Dr Spence stated that he ‘took at face value’ the reporting around Ms Thomas’ injury in a fall. However, in his opinion individuals develop a medicalised situation when they hold the injury and pain separate from other experiences in their life.

When taken through a list of other traumatic experiences in Ms Thomas’ life (including difficulty transitioning to full time work, pregnancy, and a violent partner) Dr Spence agreed that to experience pain throughout was a common response to traumatic experiences. In his experience though the trauma(s) can often be the main driver of the chronic pain syndrome. Dr Spence also accepted that loss of status through leaving work was also a factor.
CONSIDERATIONS
The issues that arise for consideration are whether Ms Thomas continues to suffer the effects of any, and if so, what, medical conditions related to the fall in 2002. It is necessary to determine whether any ongoing conditions are injuries within the terms of the Act. Both physical and mental conditions may be either an injury, or an ailment. If an ailment is found, the causal test in s 5B must also be satisfied (for those arising after April 2007). That is, employment must have contributed to a significant degree, with consideration given to the factors in s 5B(2).
It was submitted on behalf of Ms Thomas that both sets of conditions (the back conditions and the psychological conditions) should be considered injuries under the Act. It was contended that Ms Thomas had a back injury that arose out of, or in the course of Ms Thomas’ employment and it had continued since 2002. It was also contended that the psychological conditions were injuries by reason of being consequential upon the back injury, and they too had continued since being sustained. While there may be a number of contributing causes to the psychological conditions, it was stressed that there was continuity with the original injury sustained in 2002.
It was submitted on behalf of Comcare that Ms Thomas no longer suffers from the back conditions as there was no pathology underlying them and they had resolved. It was contended that the physical injury had been superseded by the psychological conditions. These conditions should be considered ailments which arose over a period of time, with an accepted date of injury in 2008. It was further contended that these conditions do not meet the relevant causal test, being contributed to by employment to a significant degree. It was submitted, in the alternative, that should the psychological conditions be found to be injuries, that they do not continue to meet the causal test of arising out of, or in the course of, Ms Thomas’ employment.
Lists of authorities were submitted by the parties and the Applicant’s representative relied at the hearing in particular on Comcare v Canute (2005) 148 FCR 232. This was with respect to the submission, noted above, that Ms Thomas’ psychological conditions arose consequent upon the physical condition. Emphasis was placed on the minority decision of Justice Gyles which was referred to with approval by the High Court in Canute v Comcare (2006) 226 CLR 535. While that case arose from the assessment of permanent impairment, I accept that there is a similarity in the conditions and the sequence of their appearance in that case and in this matter. It has also been observed that the reasoning of the High Court ought to apply equally to other compensation types under the Act (Comcare v Lofts (2013) 217 FCR 220, at [60]). I understand from the High Court’s reasoning in Canute (for example at [15]), that the identification of an ‘injury’ (including an ailment) must be the starting point for consideration of the various forms of compensation arising under the Act. I will return to this issue below in the context of the particular findings I make with respect to Ms Thomas’ conditions, and will not address in any further detail the authorities cited by the parties on this issue.
I consider it helpful to restate here briefly the history of decisions made in respect of Ms Thomas’ conditions. There were a series of decisions made with respect to her back conditions being for a lumbar sprain in 2002 and 2011, and later, in 2012, for myalgia, with the date of onset identified as 2007. Ms Thomas’ psychological conditions were also accepted originally in 2012, with date of onset identified as 2008.
Back conditions
There is some contention arising from the various radiological examinations of Ms Thomas’ spine. It has been established clinically, and accepted by the medical witnesses, that Ms Thomas had some pre-existing degenerative change at a number of joints in the lumbar region. What appears less clear is the evidence relating to nerve impingement. I understand this to be important because the involvement of a nerve or nerves would more easily substantiate the pain and other symptoms reported by Ms Thomas. The medical witnesses agreed, however, that clear back pathology does not necessarily arise in all cases of reported pain or other symptoms.
It was clear from the evidence at the hearing that the issue of Ms Thomas’ reports of ongoing pain and other symptoms was a matter over which there was some disagreement. Specifically, Dr Kostos disagreed with the findings of other expert witnesses partly because of what he considered to be the inadequacies of the particular form that their respective physical examination of Ms Thomas took. Dr Kostos was firmly of the opinion that her pain was ‘non-organic’ in origin, and that findings of referred pain in her left lower limb were not sustainable. Against this opinion, I must weigh the findings of two other specialists who have found that Ms Thomas exhibits what I understand to be the continuing effects neurological change in a region associated with a nerve pathway originating in the lumbar region, as well as back pain.
The medical witnesses were, however, unable to provide definitive reasoning for the ongoing symptoms. This was due principally to the ambiguity in, or absence of definitive evidence from, radiological examinations. Nonetheless, there was a majority of medical opinion as to the likelihood that a lumbar nerve had, at some point, been affected either through direct impingement, or inflammation. It was submitted on behalf of the Respondent that Dr Kostos possesses particular expertise in musculoskeletal medicine and that his evidence should be preferred. However, I am satisfied that the balance of medical opinion from the other witnesses overall provides a better explanation for Ms Thomas condition.
There is one important respect in which there was accord in the expert evidence. Mr Blombery stated that he considered a pain syndrome arose possibly within six months of the initial trauma of the fall. Both Mr Blombery and Dr Kostos were in agreement that a small cohort of chronic pain sufferers (10-15%) experience sensitisation of nerve pathways. This evidence supports a finding, in my view, that Ms Thomas’ ongoing pain and reported symptoms were most likely caused by her fall aggravating pre-existing disc degeneration which led to such nerve sensitisation.
With respect to the authorities, I understand the critical issue to be giving consideration to the nature of the particular change that gave rise to the condition(s), with an identifiable physiological change being the key criteria for a finding that a condition is an injury rather than an ailment.[3] With this in mind, I consider that the weight of medical evidence indicates that Ms Thomas has sustained an injury to her lumbar spine following her fall at work and that this injury transformed over a relatively short period into a chronic pain condition as a result of sensitisation of the relevant nerve pathways. This is because there is sufficient consistency across the specialist opinion to support a finding that Ms Thomas’ back conditions are the result of a distinct physiological change, giving rise to past and ongoing reported symptoms of pain and related left lower limb neurological deficits.
[3] Military, Rehabilitation and Compensation Commission v May (2016) 257 CLR 468 at [47], [75] and [78]; Prain v Comcare [2017] FCAFC 143 at [76].
To return to the discussion above with respect to the decision in Canute, I make the further finding that Ms Thomas’ ongoing condition is a continuation in a different form of her initial lumbar injury and therefore arose out of, or in the course, of her employment. I consider she suffered a single injury, and that the nerve sensitisation is not a separate condition.
Psychological conditions
In respect of Ms Thomas’ psychological conditions, I understand Dr Reid’s evidence to be that she referred Ms Thomas for treatment sometime after she became her patient, in around 2010. Her evidence was that this referral was on account of both Ms Thomas’ relationship issues and her back pain. This appears from the material before me to be the first formal referral of Ms Thomas for psychological treatment. There are earlier references to the possibility of a psychological condition, in the report of Dr Bornstein (T11) and Dr Rososinski (Exhibit R1), both of which relate to Ms Thomas’ presentation in 2008.
Other than a diagnosis of major depression by Dr Farnbach in 2014 (T32), the scope of specialist opinion has been consistent. That is, Ms Thomas has been diagnosed with a somatic symptom disorder, also described as chronic pain syndrome. In addition, Ms Thomas has been diagnosed with an adjustment disorder, depression and anxiety (with some slight variation in the specific diagnoses), the first formal diagnosis appearing to be that by Dr Cohen in mid-2012 (T23). I am satisfied on the basis of the medical evidence lodged with the Tribunal and the evidence at the hearing that Ms Thomas continues to suffer these conditions.
Based on the medical evidence, including the formal diagnoses, I am satisfied that Ms Thomas first developed her psychological conditions at some time during 2008. Written and oral submissions addressed authorities relevant to the question of characterising the nature of the conditions. I refer to and repeat here the observations above with respect to distinguishing, based on the authorities, between an injury and an ailment. In the case of Ms Thomas, the evidence indicates that her psychological conditions emerged as a response to her difficulties coping with ongoing pain and engaging with her work responsibilities. Accordingly, I find that her psychological conditions should be considered ailments as they did not arise from a discrete or identifiable physiological change.
As can be seen from the summary of medical material above, including the evidence at the hearing, the question in Ms Thomas’ case is the relative contribution of different factors to her psychological conditions. In the context of the Act it is necessary to take into account the duration and nature of the employment, any predisposition to developing the ailments, other activities unrelated to work, or any other matters affecting Ms Thomas’ health in deciding whether employment contributed to their development to a degree that is substantially more than material.
As noted above, what I understand to be the initial referral for psychological assessment and/or treatment, made by Dr Reid, was for a combination of work and personal reasons. Mr Mutamir appears to have at least implicitly linked Ms Thomas’ anxiety and depression to her chronic pain resulting from her fall at work. At a similarly early stage in the formal diagnosis and assessment Dr Cohen appears to identify a range of other dimensions of Ms Thomas’ mental state to be of greater significance than employment factors. However, Dr Cohen also linked her mental state to her somatoform condition, that is, with a pain condition that itself arose from Ms Thomas’ injury.
I consider that, to an extent, Ms Thomas in her evidence somewhat played down the nature and significance of key life stressors. This was particularly the case with respect to the role of violence in the breakdown of her long-term partnership. However, on balance, I do not consider her personal perspective, or evidence, in themselves to be determinative of the issues under consideration. This is because there is more than adequate medical evidence addressing the relevant factors. Further, the focus of examination of medical experts at the hearing was very much directed at exploring the role that stressors arising in Ms Thomas’ personal life may have had in the respective clinical assessments.
There is some contrast in the range of background information included in the written reports of Associate Professor Paoletti and Dr Spence with respect to Ms Thomas’ personal or private stressors. However, I am satisfied from the evidence at hearing that both specialists were appropriately apprised of the scope of these factors. There was indeed no dispute at the hearing as to their nature and I do not consider it productive to restate them in detail here. I accept that they were of very real importance and cannot in any way be discounted, in that they represent among the most significant forms of trauma an individual can experience, and furthermore appear to have been compressed into a timeframe of a few years. I also consider, however, that too great a focus on the contribution of personal life stressors could detract from the central inquiry, which is whether employment played a substantially more than material contribution.
Associate Professor Paoletti concluded, specifically, that employment was a continuing contributing factor because of continuity of symptoms and her mental processes. In the context of the medical evidence as a whole I understand this to mean that her pain and pain condition were ongoing, and her anxiety and depression were related to her incapacity for work. Dr Spence stressed the somatic and ‘medicalised’ nature of Ms Thomas’ psychological conditions and the significant role trauma unrelated to work can play, stating it was extremely relevant. Furthermore, Dr Spence emphasised on his evidence the relative priority afforded by Ms Thomas to the various traumas she has experienced. However, he also acknowledged Ms Thomas’ experience of pain including that it was common to experience pain throughout various (other) traumas, and that loss of status through work was also a factor (a matter identified also in the report of Dr Cohen).
It was accepted at the hearing that there were, or could be, both physical and psychological dimensions to a chronic pain syndrome. I am satisfied that specialist medical evidence (both in material lodged and in evidence at the hearing) supports this approach. That is, as noted above, Ms Thomas had chronic pain syndrome manifested by compromised or maladapted neurology, and also had a condition manifested psychologically by a preoccupation with her pain, described as somatic or somatoform. I accept that, as described by Dr Griffith (T30), the two conditions interact and co-exist.
On balance I consider that the better view of the medical evidence overall is that Ms Thomas’ employment should be understood as continuing to make a significant contribution to her psychological conditions. I consider that the initial fall, and the prolonged and unsuccessful return to the workforce long term, have played and continue to play a significant role in Ms Thomas’ psychological conditions. These factors are the root of her ongoing problems. They are by no means the only factors that have contributed to her ongoing psychological conditions, but I do not consider the evidence to have demonstrated employment related factors to have diminished below the relevant threshold, when taking into account the matters specified in s 5B(2) of the Act.
DECISION
For the reasons given above I make the following orders:
(i)The decision of the delegate of Comcare dated 21 November 2017 is set aside and remitted for reconsideration of entitlements under s 16, s 19, and s 29 of the Safety, Rehabilitation and Compensation Act 1988 in accordance with the direction that Ms Thomas suffers from a chronic ongoing lumbar pain and referred left leg pain arising from neurological change consequent upon her initial workplace injury;
(ii)The decision of the delegate of Comcare dated 15 December 2017 is set aside and remitted for reconsideration of entitlements under s 16, s 19, and s 29 of the Safety, Rehabilitation and Compensation Act 1988 in accordance with the direction that Ms Thomas suffers from the psychological conditions of chronic pain syndrome (also known as somatic symptom disorder) with elements of anxiety and depression consequent upon her initial workplace injury;
(iii)The Respondent pay the Applicant’s costs and disbursements pursuant to s 67 of the Safety, Rehabilitation and Compensation Act 1988.

I certify that the preceding 74 (seventy-four) paragraphs are a true copy of the reasons for the decision herein of Dr Stewart Fenwick, Senior Member

...........................[sgd]....................................
Associate
Dated: 13 August 2020

Date of hearing:

17, 18 and 19 June 2020

Counsel for the Applicant:

Solicitors for the Applicant:

Mark Carey

MAURICE BLACKBURN LAWYERS

Counsel for the Respondent:

Solicitors for the Respondent:

Julia Lucas

AUSTRALIAN GOVERNMENT SOLICITOR

[2020] AATA 2942

13 August 2020

Key Legal Topics

Areas of Law

Employment Law

Administrative Law

Legal Concepts

Causation

Remedies

Appeal

Statutory Construction

Procedural Fairness

Costs