Thomas and Comcare (Compensation) - [2020] AATA 2942

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Thomas and Comcare (Compensation)

Details

AGLC: Thomas and Comcare (Compensation) [2020] AATA 2942
Case: [2020] AATA 2942
Decision Date: 13 August 2020

CaseChat Overview and Summary

This matter concerned an appeal by Ms Thomas against decisions made by Comcare regarding her entitlement to compensation under the *Safety, Rehabilitation and Compensation Act 1988* (Cth). The dispute centred on whether Ms Thomas continued to suffer from medical conditions arising from a workplace injury sustained in 2002, and if so, whether these conditions qualified as "injuries" or "ailments" under the Act, thereby entitling her to compensation for medical treatment, incapacity for work, and household services.

The court was required to determine two primary legal issues. Firstly, whether Ms Thomas continued to suffer from any medical conditions related to her fall in 2002, and if so, whether these ongoing conditions constituted "injuries" within the meaning of the Act. Secondly, if any of the conditions were deemed "ailments," the court needed to assess whether employment contributed to them to a significant degree, as required by section 5B of the Act, considering the factors outlined in section 5B(2).

The court reasoned that Ms Thomas's employment continued to make a significant contribution to her psychological conditions, which included chronic pain syndrome with elements of anxiety and depression. It found that the initial fall and the prolonged, unsuccessful return to the workforce played a significant role in these ongoing psychological issues, forming the root of her problems. While acknowledging other contributing factors, the court concluded that the evidence did not demonstrate that employment-related factors had diminished below the relevant threshold. The court also directed 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.

Consequently, the court set aside Comcare's decisions of 21 November 2017 and 15 December 2017. The matter was remitted for reconsideration of Ms Thomas's entitlements under sections 16, 19, and 29 of the *Safety, Rehabilitation and Compensation Act 1988*, in accordance with the findings that she suffered from both the physical and psychological conditions consequent upon her workplace injury. The Respondent was ordered to pay the Applicant's costs.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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’.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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.