Valakoski and Comcare (Compensation) - [2025] ARTA 472

Valakoski and Comcare (Compensation) [2025] ARTA 472 (22 April 2025)
Applicant/s:  Diana Valakoski
Respondent:  Comcare
Tribunal Number:                2021/0808, 2021/2065, 2021/7074
Tribunal:Deputy President O’Donovan
Place:Brisbane
Date:22 April 2025

Decision:The Tribunal affirms the decisions under review.

Damien O’Donovan
......................................................................
Deputy President O’Donovan
Catchwords
WORKERS’ COMPENSATION – accepted burn injury – claimed pain condition – claimed psychiatric condition - whether applicant has complex regional pain syndrome secondary to accepted injury – whether applicant has adjustment disorder secondary to accepted injury – incapacity payments – adverse credit findings – not satisfied that the applicant has an organic pain condition – decisions under review affirmed.
Legislation
Safety, Rehabilitation and Compensation Act 1988 ss 5A, 5B, 14, 19
Cases
Woodhouse v Comcare [2021] FCAC 95
Abrahams v Comcare [2006] FCA 1829
Statement of Reasons

Ms Valakoski (the applicant) suffered a serious burn at work in November 2019. The burn healed naturally with some scarring, but the applicant has complained of significant painful and debilitating symptoms in her left hand and arm ever since. She was unable to continue to work following the onset of symptoms and when examined by doctors described and displayed extreme levels of disability in her left arm.
Roughly half of the physical doctors who examined her concluded that she meets the requirements for a diagnosis of complex regional pain syndrome The other half found that the objective signs required for a diagnosis were absent. Some also noted discrepancies between her presentation when examined formally when compared to her capacities when observed informally during the course of examination. This led some doctors to offer the alternative physical diagnosis of neuropathic pain and others to offer a psychiatric diagnosis of functional neurological disorder. All of these diagnoses, to a greater or lesser degree depend upon the applicant, accurately reporting her subjective experience of reduced function and pain.
There are however a number of matters which cause me to doubt that the applicant is accurately reporting both her symptoms and the functional impact of any condition she suffers from.
First, there are objective signs that should be present and reflective of the significant disability that the applicant describes and displays, which most doctors are unable to detect. There is no muscle wasting in her arm detectable from lack of use of her left limb. Second, there are no changes in her bone density revealed on either a plain X-ray or on a bone scan which would be expected if there was the lack of use of the limb that the applicant describes.
Second, the applicant has proven to be an unreliable historian particularly when describing the functional loss resulting from the burn and its sequelae. In some contexts the applicant describes changes to her daily activities and identifies the burn as the cause of the changes. In other contexts, she describes the same changes to daily activities and ascribes them to a motor vehicle accident that happened 18 months before the burn.
These factors in combination make it difficult to accept…

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.

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Details

AGLC: Valakoski and Comcare (Compensation) [2025] ARTA 472
Case: [2025] ARTA 472
Decision Date: 22 April 2025

CaseChat Overview and Summary

Valakoski v Comcare involved a claim for compensation for an accepted burn injury, a claimed pain condition, and a claimed psychiatric condition. The applicant sought incapacity payments. The matter was heard by the Administrative Appeals Tribunal (AAT) and was subsequently transferred to the reviewer. The decisions under review affirmed the rejection of the applicant's claims.

The primary legal issues were whether the applicant had complex regional pain syndrome (CRPS) secondary to the accepted injury and whether the applicant had an adjustment disorder secondary to the accepted injury. The court had to determine if the applicant's reports of symptoms were reliable and if they met the diagnostic criteria for CRPS and an adjustment disorder.

The court found that the applicant's evidence, when approached with caution, was unreliable as it depended heavily on the accurate reporting of symptoms. The court noted that CRPS requires specific subjective criteria and signs to be met, and since the applicant's symptom reporting was not reliable, a diagnosis of CRPS was not possible. Additionally, the applicant had a diagnosed adjustment disorder prior to the burn incident, which made it unconvincing that the burn incident significantly contributed to the disorder. The court concluded that the applicant did not meet the criteria for CRPS or an adjustment disorder secondary to the accepted injury.

The court affirmed all three decisions under review, rejecting the applicant's claims for compensation for the alleged pain condition and psychiatric condition.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

When the applicant’s evidence is approached with caution, it becomes difficult to accept any of the diagnoses that have been proffered as all depend, to a greater or lesser degree, upon the accurate reporting by the applicant of her symptoms.Evidence I inherited this matter after it had been heard by another member over five days in 2024. The member set a timetable for filing final submissions that straddled the date on which the AAT ceased to operate and the Administrative Review Tribunal (‘Tribunal’) commenced operation. The member did not continue with the ART and so the matter was constituted to me. I reviewed recordings of all the evidence given, read the reports of all the doctors relied upon by the parties and considered the various statements made by the applicant, as well as the statements of facts, issues and contentions, and submissions filed by the parties. I have annexed to these reasons a table setting out the evidence available to me. Should the applicant’s reports of pain be accepted?Requirements for a CRPS diagnosis In advancing her claim that she is suffering from a physical ailment that developed as a consequence of her burn injury, the applicant relies primarily on a diagnosis of CRPS. There are many physical ailments that could be diagnosed without the need for accurate subjective reporting. CRPS is not one of them. Consequently, before turning to the question of whether the applicant’s reporting of her symptoms of her illness and its impact on her lifestyle are reliable, it is necessary to explain the diagnostic criteria that must be fulfilled before a diagnosis of CRPS can be made. For a diagnosis of CRPS, there are a number of essential subjective criteria that must be present. If I am not satisfied that the symptom reporting is reliable then a diagnosis of CRPS becomes impossible. CRPS – The Budapest Criteria To make a diagnosis of CRPS it is necessary for the following criteria to be met:(a)Continuing pain, which is disproportionate to any inciting event; (b)Must report at least one symptom in three of the four following categories:(i)reports of hyperaesthesia (sensitivity to touch, pressure and thermal sensations) and/or allodynia (experiencing as painful stimulus that does not normally provoke pain);(ii)reports of temperature asymmetry and/or skin colour changes and/or skin colour asymmetry;(iii)reports of oedema (build up of fluid causing swelling) and/or sweating changes and/or sweating asymmetry;(iv)reports of decreased range of motion and/or motor dysfunction (weakness, tremor, dystonia (muscle contraction)) and/or trophic changes (hair, nail, skin – thickening or thinning or brittle);(c)Must display at least one sign at time of evaluation in two or more of the following categories;(i)evidence of hyperalgesia (an extreme response to pain) to pinprick, and/or allodynia (to light touch and/or deep somatic pressure and/or joint movement);(ii)evidence of temperature asymmetry and/or skin colour changes and/or asymmetry;(iii)evidence of oedema and/or sweating changes and/or motor dysfunction (weakness, tremor, dystonia) and/or trophic changes (hair, nail, skin);(d)There is no other diagnosis that better explains the signs and symptoms.[14][14] T-Documents (2021/2065), T30, 284.

Decision

Reasons for decision

There is a second difficulty with accepting this claim. The difficulty is that the applicant had a diagnosed adjustment disorder in December 2019 attributable to her motor vehicle accident. In the absence of evidence establishing that the applicant’s first adjustment disorder resolved prior to the second disorder developing, I cannot accept that the burn incident significantly contributed to the disorder. On the evidence available, the applicant had an adjustment disorder that was having significant negative impacts on her functioning prior to November 2019. In those circumstances the evidence that suggests that an adjustment disorder developed in 2020 in response to persistent pain following the burn incident is unconvincing.Decision I affirm all three decisions under review.

Ratio Decidendi

Legal Principle Established

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