Valakoski and Comcare (Compensation)
[2025] ARTA 472
•22 April 2025
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 1829Statement 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 that the applicant is a consistent and accurate historian. I am satisfied that on some occasions when the applicant is reporting to doctors, she has exaggerated her symptoms. On others she has said things that were untrue. In those circumstances, I am not satisfied that the applicant is accurately describing her symptoms. Without confidence in the accuracy of the reported symptoms, I am not satisfied that the applicant is suffering from complex regional pain syndrome or any other long-term pain condition resulting from the burn. Nor am I satisfied that she is suffering from a psychological condition resulting from the burn or its sequelae. My detailed reasons for these conclusions are as follows.
The applicant was employed as a full-time APS 3 Service Officer with the Department of Human Services.
On 1 November 2019, the applicant was filling her water bottle in the staff kitchen. She was using a tap that dispensed both chilled and boiling water. When the bottle she was filling slipped she ended up with boiling water pouring onto the skin of her left hand, and she suffered a second degree burn to her left hand. The burn was a serious one and over the next few days she received treatment from GPs and as an outpatient at the local hospital. The burn was dressed and re-dressed regularly over the next five weeks.[1]
[1] T-Documents (2020/0808), T8, 52.
She made a claim to Comcare, and on 18 December 2019 liability was accepted in respect of an ‘abrasion or friction burn of hand(s) (left)’.[2] Compensation was paid for incapacity and medical treatment.
[2] T-Documents (2020/0808), T5, 39-45.
The applicant’s skin recovered from the burn, but the applicant continued to report pain in her left hand. By April 2020 she had a firm diagnosis from a treating specialist of complex regional pain syndrome type 1 (‘CRPS’).[3] A diagnosis of CRPS appears to have been floated as early as February 2020.[4]
[3] T-Documents (2020/0808), T11, 78-81
[4] Exhibit 2, 1.
The applicant submitted a claim for CRPS. By determination dated 12 October 2020, the respondent denied liability.[5] The applicant sought review and a reviewable decision affirming the rejection of liability was made on 12 December 2020. The applicant applied for review of that decision to the Administrative Appeals Tribunal (‘AAT’) on 31 March 2021.[6] The application became proceeding 2021/2065.
[5] T-Documents (2021/2065), T22, 226-239.
[6] T-Documents (2021/2065), T1, 3.
By a determination dated 18 November 2020, the respondent also found that there was no present liability to pay compensation for incapacity in relation to the burn injury for the period 11 May 2020 to 5 July 2020.[7] That determination was affirmed on internal review,[8] and the AAT application in relation to that reviewable decision became proceeding 2021/0808.[9]
[7] T-Documents (2021/0808), T34, 195-197.
[8] T-Documents (2021/0808), T56, 359-368.
[9] T-Documents (2021/0808), T2, 3.
The applicant also submitted a claim for ‘adjustment disorder with anxiety and depression’ or in the alternative ‘major depressive episode’. The burn injury and subsequent pain symptoms were said to have triggered this psychological condition. The respondent denied liability, and this was affirmed on 24 September 2021.[10] The delegate determined that the causes of the applicant’s psychological condition pre-dated the burn incident, and therefore the delegate could not be satisfied the burn injury made a significant contribution to any psychological injury which subsequently developed.[11] The applicant applied to the AAT for review which is now proceeding 2021/7074.[12]
[10] T-Documents (2021/7074), T11, 34-35; T17, 79.
[11] Ibid, T11, 47.
[12] T-Documents (2021/7074), T2, 4.
2021/0808 Burn Injury
The applicant advances her case on the basis that she is suffering from and has been suffering from CRPS since (at least) April 2020. In advancing her case in this way the applicant accepts that the original burn injury is no longer the incapacitating injury from which she suffers. The evidence supports that conclusion.[13] Consequently, the decision under review denying liability for incapacity resulting from the burn in the period from 11 May 2020 should be affirmed. The real dispute between the parties concerns whether the applicant is suffering from a pain condition that persisted after the burn healed.
[13] A16
2021/2065 – Complex Regional Pain Syndrome
In order to have a claim accepted under the Safety, Rehabilitation and Compensation Act 1988 (‘SRC Act’), an applicant must establish that they have suffered a statutory injury. The definition of an injury is found in sections 5A and 5B of the SRC Act.
The statutory definition of an injury includes the concept of a disease. A disease is defined in section 5B to mean:
(a) an ailment suffered by an employee:
…
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth.
The section goes on to say:
(2)In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth…, the following matters may be taken into account:
(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.
This section does not limit the matters that may be taken into account.
(3)In this Act:
significant degree means a degree that is substantially more than material.
The applicant contends that she has suffered an ailment that was contributed to, to a significant degree, by her employment. Her primary contention is that the ailment that she suffers from is CRPS. She contends that the significant employment contribution is the burn incident on 1 November 2019, which triggered the development of CRPS.
The respondent for its part resists the diagnosis of CRPS. Its primary contention is that the applicant does not meet the diagnostic criteria for CRPS. The respondent contends that the objective signs of the existence of that condition are not present and the subjective reporting of the applicant is unreliable. In the absence of a diagnosis of CRPS the respondent suggests that the pain described might be a manifestation of a psychological condition, but not one significantly contributed to by the applicant’s employment. The psychological aspects of the claim are dealt with below in the discussion concerning application 2021/7074.
The respondent contends that ‘there are legitimate concerns with the [a]pplicant’s evidence which would cause her evidence to not survive any reasonable scrutiny by the Tribunal.’ In essence the submission is that the applicant should not be accepted as reliable and so any ailment that depends on her accurately describing her symptoms should not be accepted. The respondent’s focus on the lack of objective symptoms and general querying of the applicant’s reliability invites scepticism about the existence and/or severity of symptoms she describes.
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.
It is critical to the diagnosis that the continuing pain suffered by the applicant is disproportionate to the inciting event. I need to be satisfied that the pain reporting of the applicant is accurate before the diagnosis could be accepted.
The signs at criterion (b) are for the most part observable (excluding the sensitivity to touch and non-painful stimulus). One would think that regardless of the assessor a consensus could emerge as to whether the applicant has the signs. In this matter that is not what occurred. The applicant was seen by numerous doctors who are capable of assessing her for CRPS. The table below shows each doctor who saw the applicant, the date on which they saw the applicant and the diagnosis offered.
Name and specialty of doctor
Date of appointment
Arranging party
Diagnosis
A/prof Matthew Keys, specialist in pain medicine physician
first appointment: 14 April 2020. There have been around 25 subsequent appointments between 2020 and 2024
applicant
complex regional pain syndrome type 1 (CRPS)[15]
Dr Jude Ugwu, occupational physician
5 March 2020
employer
opined that the applicant did not meet the diagnostic criteria for CRPS at the time of assessment[16]
Dr Joshua Daly, consultant pain medicine physician
27 August 2020
respondent
opined the applicant did not have CRPS and diagnosed her with persistent left arm pain[17]
Dr L J Du Plessis, consultant neurologist and rehabilitation physician
22 February 2021 and 8 October 2021
respondent
opined the applicant does not have CRPS and agrees with the diagnosis of FND[18]
Dr Franz Shahzad, occupational physician
18 November 2020, 12 July 2021
employer
Did not meet the criteria for complex regional pain syndrome type 1 (CRPS) when seen in November 2020, but accepted without examination that she met criteria when seen via telehealth in 2021.[19]
Dr Joann Rotherham, specialist pain management physician
27 February 2022
applicant
complex regional pain syndrome type 1 (CRPS)[20]
Dr Mark Tadros, pain specialist physician
7 June 2021 and 28 July 2023
applicant
complex regional pain syndrome type 1 (CRPS)[21]
[15] Joint Tender Bundle, items A6, A10, A11, A12; T-Documents (2021/2065), T36, 361-363; T-Documents (2021/7074), T9, 24-26, T15, 72-73; Supplementary T-Documents (2021/7074), ST9, 95-97, Supplementary T-Documents (2021/0808, 2021/2065 & 2021/7074), ST3.
[16] T-Documents (2021/0808) T13, 92-94.
[17] T-Documents (2021/0808), T21, 136.
[18] Tender Bundle, R3, R4, R9, R12
[19] ST-Documents (2021/0808, 2021/2065, 2021/7074), ST2, 4-12.
[20] Tender Bundle, A11, 84.
[21] Tender Bundle, A3, A14.
The applicant also gave evidence that another doctor, Dr Adrian Smith, diagnosed her with CRPS when she was seeing him about something else. The evidence was however hearsay and it was not within the relevant doctor’s expertise as he was an orthopaedic surgeon.
It is against this background of significant divergence between doctors assigned to evaluate the objective aspects of the applicant’s condition that the applicant’s reliability as a witness has to be assessed. If there were consistent objective signs that all or most of the doctors who examined the applicant could satisfy themselves of, it would be less important to be satisfied that the applicant was accurately reporting her symptoms and the effects of the illness. However, because there was, over time, consistent divergence between the objective signs that sympathetic doctors were able to observe and those that more sceptical doctors were able to observe, it is appropriate to consider carefully the reliability of the applicant as a witness whose dominant symptom is pain. Having reviewed the evidence, there are strong grounds for doubting the accuracy of the applicant’s reporting of her ongoing symptoms and the cause of those symptoms.
Credit of the applicant
There are a number of reasons to doubt the reliability of the applicant as a historian and an accurate reporter of her symptoms and pain.
Those reasons fall into four categories:
(a)Her lack of candour with the Tribunal and with doctors about her functioning prior to the burn injury and exaggeration of its impact on her behaviour;
(b)Inconsistent presentation to doctors who examined her close in time;
(c)The lack of muscle wasting in the left arm and the absence of any indication of calcium loss in either the bone scan or X-ray taken of her left arm;
(d)Observations by some doctors, and reporting to others, of behaviour inconsistent with the serious pain and limitations the applicant was displaying or reporting.
When these matters are viewed collectively, they raise sufficient doubt about the applicant’s reporting of her condition to cast doubt on whether she does suffer from the disabling pain that she has described since February 2020.
Lack of honesty about causes of social withdrawal and functional changes
In her statement dated 23 February 2021, the applicant said:
Prior to my [burn] injury, there were a number of hobbies and sports that I participated in. These included, but were not limited to: playing in local Poker tournaments; having my nails done at the local salon; walking around the golf course while my husband played golf, playing tennis; walking our dogs; craft such as beading, knitting, rubber stamp art; baking and cooking and more. I also played a number of musical instruments prior to my injury. I am a classically trained pianist achieving Grade 8 from Trinity College London, and I have been playing the piano since I was five years old.[22]
[22] Tender Bundle, A1, 3, [18].
When the evidence is reviewed, it becomes apparent that very little of what is contained in that paragraph is the truth.
The applicant was involved in a motor vehicle accident on 27 July 2018. The accident involved a rear end collision that was relatively minor but still caused some damage to her car. As a consequence of the accident, the applicant developed some physical symptoms and also some psychological symptoms.[23] Common law proceedings were commenced, and the applicant ultimately recovered damages.
[23] Tender Bundle, A5, 27,
On 10 December 2019 (less than one month after the burn incident but almost a year and a half after the motor vehicle accident) the applicant attended psychiatrist Dr Malcolm Foxcroft. He reported on the psychological consequences of the motor vehicle accident for the purposes of the common law litigation. When the consultation took place, no-one had suggested that the applicant was suffering from CRPS as a result of her burn.
In describing her symptoms, the applicant is recorded as saying the following:
She said that her physical injuries are affecting her ability to perform physical work such as walking or doing exercise. However, her psychological injuries also make it hard to get out of the house. She is anxious and nervous walking the dogs and will not do it herself. She said that she has difficulty with the Maltese pulling on her arm and so she cannot hold the dog on a lead.
She used to go and play poker with her husband at the RSL and local sports clubs at least once a week but has not done that at all since the accident. She cannot recall the last time they did it. She said she has lost interest in seeing friends. She said that she does not really contact friends anymore…She reports ongoing difficulty with concentration. She has difficulty reading and focussing on a task…She reports that her mood is irritable.
…
She was a happy go lucky person who was quite positive and very proactive. Since the motor vehicle accident, she has had decreased motivation with the household tasks. She said that she relies on her husband to cook…She has returned to work in her normal job but is less efficient in the workplace and has been advised that she can no longer work long shifts, thus losing an extra day per fortnight…She said that has to use medication to sleep.
…
She has been referred to [a] psychologist…She has been prescribed the antidepressant, Cymbalta 60mg daily for its dual effects on neuropathic pain and depression and anxiety.[24]
[emphasis added]
[24] Exhibit 3, 5-7.
Dr Foxcroft concluded:
She experienced the injury in the motor vehicle accident as a severe psychosocial stressor. She developed pain in her neck and arms shortly after the motor vehicle accident and these symptoms have persisted ever since causing ongoing frustration, disruption to physical functioning and an ongoing psychosocial stressor which is in turn causing symptoms of her Adjustment Disorder
…
Ms Valakoski has developed symptoms of an Adjustment Disorder with Mixed Depressed and Anxious Mood and some features of Post Traumatic Stress following her involvement in a motor vehicle accident in which she sustained significant whiplash injury to her cervical spine amongst other injuries and has been left with nerve impingement and ongoing chronic pain.[25]
[25] Ibid, 10.
That was the applicant’s physical and psychological condition in December 2019 as determined by a psychiatrist following an interview. Apart from the fact that the applicant was able to continue working (but with reduced efficiency) the applicant was already suffering from a diagnosable psychiatric illness that was having significant social and functional impacts.
However, since at least April 2020, the applicant has sought to attribute changes in her functioning that had already taken place as a result of the injuries suffered in the motor vehicle accident, to the burn injury and its consequences. The statements extracted at paragraph 34 above are an example of this, but not the only one.
In October 2022, the applicant saw psychiatrist Dr Helen Siddle. Dr Siddle recorded the applicant’s mental health symptoms at that point:
Ms Valakoski reported that she feels flat most of the time. She reported she feels like she is treading water, and this is due to no improvement in her pain and to her legal situation. She reported she tries to stay positive but is not usually successful with this. She reported she can be teary on some days, and she had decreased motivation. She feels frustrated. She reported that occasionally she is able to enjoy things for short periods, for example playing the piano or watching a television show. She finds it difficult to sustain this enjoyment and she is not able to enjoy things as she used to.
…
She reported that if her hand touches the sheet, this will cause increased pain
…
Ms Valakoski reported that her relationship with her husband has been strained at times and she can get irritable. She reported there has been an increased number of arguments, however, she reported her husband is a patient, supportive man and there has been no separations. She reported that her relationship with her children remains strong but noted she had withdrawn socially from her friends.
Ms Valakoski reported a decrease in her level of concentration. She finds it difficult to focus for extended periods and reported that his is largely due to her pain.[26]
[26] Tender Bundle, document A9, 65-66.
Dr Siddle recorded this psychiatric history from the applicant:
…prior to her motor vehicle accident in 2018, she had no history of psychiatric conditions. She reported that following the motor vehicle accident in 2018, she had some symptoms, including nightmares, flashbacks, anxiety around being in a car and safety concerns. She reported she was able to drive but was vigilant in the car. She saw a psychologist for approximately 10 sessions and her general practitioner started her on 30 mg of duloxetine which she remained on until her current injury. She reported that she had returned to work in her full capacity and was functioning normally at home and socially at the time of her current injury. She described having some residual symptoms at the time of her injury, including hypervigilance and occasional nightmares.[27]
[emphasis added]
[27] Ibid, 68.
Dr Siddle diagnosed the applicant with a chronic adjustment disorder with mixed anxiety and depressed mood, which she believed was caused by the pain from her workplace injury.
There are at least two issues of concern which arise from accounts the applicant gave of her health and functioning prior to the burn. The first is that when she attends Dr Foxcroft in December 2019, she attributes a significant reduction in her social functioning to the motor vehicle accident. When she visits Dr Siddle, she attributes a significant reduction in social functioning, which had already occurred before her burn, to her post-burn pain. Second, at no point does Dr Siddle record being told that the applicant was diagnosed with an adjustment disorder, attributable to the motor vehicle accident, which persisted past the burn injury.[28] The statement that she had some residual symptoms is misleading. The applicant had been diagnosed with a clinically significant adjustment disorder with mixed depressed and anxious mood. Based on her reports to Dr Foxcroft in December 2019, she was not ‘functioning normally at home and socially at the time of her [burn] injury’.
[28] Transcript of proceedings in the Administrative Appeals Tribunal in file numbers 2021/0808, 2021/2065 and 2021/7074 on 19 to 22 February and 13 August 2024, 95 (transcript).
I am satisfied that the applicant has deliberately attributed particular effects to the workplace accident, even when those effects were present prior to the burn injury.
In the context of the legal proceedings concerning the motor vehicle accident, the applicant’s lawyers prepared a schedule of pain and disability in September 2019.[29] In submissions it was suggested that this document was the work of an overly enthusiastic personal injuries lawyer rather than a document that could be relied upon as based on the applicant’s instructions. I reject that submission. It would be grossly improper for a lawyer to prepare a schedule of pain and disability that did not reflect their client’s instructions. In any event, many of the claims made in the document were repeated as symptoms when the applicant saw Dr Foxcroft some months later in December 2019. For example, the document includes the paragraph:
Our client has reduced contact with her friends since the accident as a result and no longer participates in hobbies with her husband such as playing poker at their local RSL Club. Our client avoids leaving the house in the evenings in particular, as she finds that her symptoms are worse towards the end of the day.[30]
[29] T-Documents (2021/2065), T5, 34-43.
[30] Ibid, 39.
The document also records:
Our client is also cautious of being in busy places or around large crowds as she is worried that someone may bump into her and flare up her injuries.[31]
[31] Ibid.
The explanation of why the applicant stopped going out in the schedule is very similar to complaints made by the applicant to Dr Siddle some two years later when describing the effects of the pain following the burn injury. Dr Siddle records:
She prefers to stay at home where she is unlikely to hurt her hand.[32]
[32] Tender Bundle, document A9, page 66.
In giving her history to Dr Siddle, the applicant has made no effort to separate out the symptoms attributed to her motor vehicle accident and any symptoms attributable to the burn. Indeed, the situation is quite the reverse. The applicant has actively sought to create the impression that activities that she ceased following the motor vehicle accident were continuing until she suffered the burn injury.
I am satisfied that the applicant was deliberately misleading in the evidence she gave to the AAT and in the history she gave to Dr Siddle.
When the applicant was examined in March 2020 by Dr Lewandowski, a plastic surgeon, he noted:
Ms Valakoski’s household chores are now done by her husband…Her recreational activities included walks around the golf course, but vigorous walking also caused her symptoms to exacerbate as did anything using her hands such as playing the piano or poker, she enjoys playing with the pets but feels that the risk of injury to her hand is such that she is averse to that.[33]
[33] T-Documents (2021/0808), T10, 69.
Almost all the activities she identifies as having been affected by the burn were activities that she told Dr Foxcroft four months earlier, were activities she had given up as a result of the motor vehicle accident. It is difficult to accept this as an honest mistake given how close in time the two consultations were.
Inconsistency Presentation
The next issue of concern is how differently the applicant’s symptoms and signs presented to the number of doctors she was assessed by.
The first time the applicant was told she had, or might have, CRPS seems to have been in February 2020. It is unclear whether she saw A/Prof Keys or spoke to A/Prof Keys on 9 February 2020, but there is a note relating to the applicant which mentions ‘CRPS L hand’ and seems to describe the hand as ‘[c]old, white, dystonia’.[34] It was at this point the applicant was referred to A/Prof Keys so someone was concerned that the applicant was displaying signs of CRPS.
[34] Exhibit 2, 1.
When he gave evidence, A/Prof Keys was unable to confirm the nature of the interaction that led to this note.[35] He could however confirm that he saw the applicant on 14 April 2020.
[35] Transcript, 58-90.
A/Prof Keys recorded in his report dated 14 April 2020:
1. In the sensory domain, there was allodynia demonstrated to light touch. This was dynamic tactile allodynia. Hyperalgesia was not tested for (as it was unnecessary and would have been extremely uncomfortable). The allodynia extended beyond the burn. The burn is on the posterior surface of the hand and the allodynia extended to the palm and up to the wrist to the mid-forearm.
2. In the vasomotor domain there was temperature asymmetry between the hands with skin colour changes.
3. In the sudomotor/oedema domain, there were sweating changes/diaphoresis changes and sweating asymmetry.
4. Under the motor/trophic domain, there was decreased range of motion, weakness, tremor and trophic changes with hair, nail and skin.[36]
[36] T-Documents (2021/0808), T11, 79.
A/Prof Keys commented that ‘it is great to see that Diana has persisted and is wearing a JOBST hand glove I understand she has been assessed for a custom made one’.[37]
[37] Ibid.
A/Prof Keys also diagnosed ‘an adjustment disorder with depressed mood and anxiety’ associated with the workplace-based injury.[38]
[38] Ibid, 80.
The findings of A/Prof Keys differ significantly from the findings of a doctor who examined the applicant the previous month. In March 2020, the applicant was referred by her employer to Dr Ugwu, an occupational physician.
In her consultation with Dr Ugwu, inconsistency emerged between what the applicant told Dr Foxcroft and what the applicant told Dr Ugwu. For example, she reported that her husband ‘now does most of the cooking’,[39] implying that this was the result of the burn and its consequences. The applicant failed to advise Dr Ugwu that her husband taking over the cooking was something that had happened as a result of her earlier motor vehicle accident (as she had told Dr Foxcroft).[40]
[39] T-Documents (2021/0808), T8, 52.
[40] Exhibit 3, 6
The applicant reported being shown how to massage and moisturise the hand four times daily and that she was ‘currently using a compression garment on the burn area as she says the pressure provides her comfort’.[41]
[41] T-Documents (2021/0808), T8, 53.
On physical examination the following was reported by Dr Ugwu:
Ms Valakoski was wearing a compression stocking over the hand. The stocking was noted to be a bit tight with friction as she puts on the stocking or removes it. There was noted no dysthesia [an unpleasant sensation felt when touched], no tenderness upon pressure over the scar region. No sign of discomfort with friction rub over the burn area. Her wrist range of movement was good with no discomfort. The grip strength was painless but with weakness on the left side. No wasting noted about the left lower arm
…
She presented with a compression stocking over the burn injury with a good measure of tightness. She was noted to be able to put on and pull this off without obvious discomfort.[42]
[42] T-Documents (2021/0808), T8, 54-55.
Apart from the identification of weakness, the necessary signs and symptoms for a diagnosis of CRPS were entirely absent. Both the examination by Dr Ugwu and the use of the compression glove and deep massage described rule out that the applicant suffering hyperaesthesia or allodynia at this point. None of the other symptoms or signs necessary for a diagnosis were present. Their absence is confirmed in Dr Ugwu’s supplementary report.[43]
[43] T-Documents (2021/0808), T19.
This sequence of symptoms is very difficult to accept as reflecting an organic condition. In February 2020 the applicant is displaying sufficient signs of CRPS to warrant a referral to a pain specialist, in March 2020 the applicant was showing few symptoms of CRPS and it was possible for the doctor to massage her hand without complaint, but by April the applicant’s hand was so sensitive that she was experiencing pain in response to light touch. While the evidence supports the conclusion that changes in presentation can vary from day to day, the symptom variability recorded in early 2020 is sufficient to prompt further consideration of the extent to which the applicant’s claims are supported by objective evidence.
Absence of calcium loss on bone scan and X-ray
As time went by, the level of disability the applicant displayed on examination by doctors increased significantly. On some occasions the applicant presented to doctors a left limb that was virtually unusable. Despite this apparent inability to perform most functions with her left hand, most doctors could not find any wasting of the muscles in the left arm. Dr Du Plessis in particular found this to be suspicious and it prompted him to seek evidence to confirm that the applicant was not using her left limb.
Before examining his exploration of the issue, it is worth setting out the severity of disability in the left arm which doctors were being told about or observing from early in 2020.
When the applicant was examined by Dr Lewandowski, a consultant plastic and reconstructive surgeon who saw the applicant on 30 March 2020, he noted:
Examination today revealed Ms Valakoski to have a 65mm diameter patch extending from the left thumb base dorsally to the left 1st web space and left dorsal 2nd metacarpophalangeal joint. It was red and seemed to become hyperaemic with activity. On testing with light touch it was markedly hypersensitive in comparison to the other side. There was no distal numbness or neurological distribution outside of the burned area with completely normal sensation distal and proximal. An attempted wrist and hand flexion she described a tearing sensation at the base of her 2nd metacarpophalangeal joint distally.[44]
[emphasis added]
[44] T-Documents (2021/0808), T10, 70.
The applicant also reported declining use of her left hand to Dr Lewandowski.
Ms Valakoski’s household chores are now done by her husband…[45]
[45] Ibid, 69.
When Dr Daly, a pain physician, assessed the applicant in August 2020, the applicant was reporting ‘extreme pain in the elbow itself as being a cause of an inability to extend the elbow’.[46] Dr Daly recorded:
She reported inability to move the hand in any functional positions such as opposition, pincer grip, extension/flexion of the digits due to the pain however it was noted that both the thenar and hypothenar eminences of that hand were normal in their muscle bulk suggesting that the loss of movement has not been to the extent to result in muscle atrophy. The remainder of the examination was unremarkable.[47]
[46] T-Documents (2021/0808), T21, 135.
[47] Ibid.
A similar level of disability was recorded by Dr Shazhad, an occupational physician on 16 November 2020.[48] She recorded:
[The applicant] reported difficulty with personal, self-care including washing her hair, undressing and showering. She has a habit of keeping her arm close to her body and has to desensitise her hand by running a bit of water over it to help it acclimatise before she starts washing. She has a gym at home where she performs activity for approximately 5-10 minutes at a time.
…
She reported that she was unable to write with her left hand and there was reduction in her left elbow movements. She was unable to demonstrate much flexion and extension due to the pain in the left hand…She held her left arm in a flexed posture across the front of her body. There was minimal movement of the arm noted throughout the assessment.[49]
[48] T-Documents (2021/0808), T35, 199-209.
[49] Ibid, 201.
When Dr Du Plessis assessed her on 8 October 2021 via video with the assistance of Occupational Physician Dr Navin, the applicant reported that ‘she cannot actively use her left hand for the physical activities required for meal preparation. This causes increased pain. She cannot in particular use scissors or knives. Her husband cuts up her meals for her and she eats with her right hand’.[50]
[50] Tender Bundle, document R3, 114.
In relation to the physical examination conducted with the assistance of Dr Navin, the following is recorded:
Dr Navin started his physical examination indicating that Ms Valakoski declined to open her hand and declined to allow touching of the “swelling” at the dorsum of her left hand. He recorded the circumferences of the two upper limbs, the biceps circumference on the right was 32 cm and the same was found on the left side. Forearm circumference on the right was 24 cm and on the left 25.5 cm which indicates that there is no evidence of differential muscle wasting.…
She withdrew her left arm on the slightest touch of her forearm and hand, but was noted to be able to place her arm on the chair.
…
It was virtually impossible to get any indication of the actual ability of Ms Valakoski to activate motor movements. This was because of ongoing withdrawal of her arm or complaints of physical discomfort at any attempt to carry out an examination of her left arm…
…
I noted that she showed normal finger movement and upper limb movement on the right side. Finger extension on the left was virtually zero particularly for the 2nd and 3rd fingers and there was very little movement noted at the wrist of flexion and extension. It was virtually nil while on the right upper limb these movements were normal. Elbow extension on the left was 120 to 130 degrees and she complained of pain above the left elbow region.[51]
[51] Ibid, 121-122.
Dr Du Plessis noted:
Muscle wasting would have been apparent if Ms Valakoski was not using the muscle of her left forearm at all. Forearm muscles activate and moves the fingers and the wrist.[52]
[52] Tender Bundle, document R3, 121.
In order to test the veracity of the applicant’s reported symptoms, he obtained an X-ray of her forearm. The X-ray was taken on 24 August 2022.[53]
[53] Tender Bundle, document R6, 157.
He reported on the results in the following terms:
Are the x-ray results consistent with the Applicant’s reporting of disuse
of her left hand? Please explain why or why not.
In my opinion, the X-rays are not consistent with Ms Valakoski’s reporting of
not being able to use her left hand. The main reason for this being that when
a limb is not being used (this is often seen in hemiparetic patients as well
para- and quadriparetic patients), the calcium moves out of the bone, the
bone density drops and decreases the density of the bones and the X-rays
show the appearance of osteopaenia/osteoporosis in these bones.
However, Ms Valakoski at my instigation had a comparative X-ray performed
of her wrists and there was no evidence of loss of bone density on the X-ray. I
accepted that a bone density scan would be more appropriate, but as I did not
consider that she has complex regional pain syndrome to start off with, I went
for the easier and quicker option of just having an X-ray performed. If there
was any difference between the two sides, I would have definitely called for a
bone density scan, which I do not consider to be necessary at this stage.
d. If there is evidence of disuse of the left hand in the x-ray results, please
explain whether there could be any other explanation for this x-ray
finding?
There is no evidence of disuse of the left hand in the X-ray results purely
based on the fact that there is no relative osteopaenia compared to the
opposite side.At that point Dr Du Plessis was satisfied that the X-ray results were not consistent with the applicant being unable to use her hand.
During the course of the hearing both A/Professor Keys and Dr Tadros repeatedly emphasised that radiological change is not necessary for a diagnosis of CRPS. They both cast doubt on the usefulness of the X-ray obtained by Dr DuPlessis. For example, Dr Tadros, the IME who reported on the applicant at her initiative, said as follows in his oral evidence:
I think what I said in the answer to your last question still stands and that’s that you can’t really – to diagnose osteopenia or a loss of bone density an x-ray is a very poor measurement of that, and again I said that from a day-to-day diagnosis, osteopenia would be a poor diagnostic tool to either refute or confirm the diagnosis of complex regional pain syndrome. If you really wanted to perform a diagnostic procedure, and I never do this for a patient who comes in with complex regional pain syndrome, probably the best tool to be used would be a bone scan, because if the limb is affected by that disease, especially in the acute phase that will light up on a first phase of the bone scan. That would’ve been a better procedure to do. But it is really subjecting the patient to a procedure that they don’t need, clinically. They’ll only need it legally so I wouldn’t subject the patient to that because there is some risks associated with this, and I never subject them to that clinically for that reason. I hope that answers the question.[54]
[54] Transcript, 85.
As it turned out, the applicant’s treating doctor, A/Prof Keys had ordered a bone scan. The results were unhelpful to the applicant. A/Prof Keys did not disclose the existence of the bone scan until specifically questioned about it during the hearing.
The bone scan was undertaken in May 2023. When the bone scan was being performed, severe disability on the part of the applicant was observed. The report observes that the applicant was ‘unable to extend the digits on her left hand’.[55]
[55] Exhibit 5.
As should be clear from the above, between March 2020 and May 2023 the applicant was describing very high levels of disability in her left arm. One can readily infer that if the level of disability she was displaying in the assessments reflected her day-to-day usage of the left hand, the applicant would virtually never use the hand. That conclusion is supported by her report to Dr Du Plessis that her husband cuts her food. The medical evidence before the Tribunal supports the conclusion that with that level of disuse two things happen. First, the muscles in the applicant’s left arm will atrophy and show signs of wasting. Second, there will be bone changes caused by calcium leaching out of the bone of the unused limb.[56]
[56] Transcript, 146.
Neither of these phenomena were present when properly investigated. Neither the X-ray ordered by Dr Du Plessis, or the bone scan which was ordered by the applicant’s treating doctor showed any sign of calcium loss. The doctors who measured the applicant’s left arm and right arm found no evidence of muscle wasting.
The applicant explained the lack of muscle wasting at the hearing on the basis that she was doing exercises which her physiotherapist gave her in 2020 which prevented muscle wasting.[57] If the applicant was doing regular exercises that preserved limb function it is difficult to accept that the applicant could not have done more with her hand when examined by doctors between March 2020 and May 2023.
[57] Transcript, 10-11, 29.
It is difficult to imagine what exercise a person is doing with their left arm if they cannot cut their own food, extend an elbow or demonstrate finger extension in two digits. If the applicant was doing exercises at home, then I am satisfied that she is exaggerating her level of disability when she was presenting to doctors. This conclusion is supported by other incidental disclosures from the applicant. For example, she told Dr Siddle in October 2022 that she was playing the piano for recreation. When the bone scan was conducted in May 2023 the applicant was unable to extend her digits. I am satisfied that when the applicant presented in this way, she was not making a serious attempt to give the physical doctors a clear picture of her capacity.
In relation to the bone scan, the doctors who gave evidence on behalf of the applicant repeatedly emphasised that radiological changes are not necessary before a diagnosis of CRPS can be made. So much can be accepted. However, leaving the question of diagnosis to one side, when an applicant is describing a disabling pain condition that brings about non-use of the limb, I accept the evidence of Dr Du Plessis, supported by the opinion of Dr Tadros, that changes should be observable on a bone scan.
In those circumstances, I am satisfied that the applicant provided to all doctors an exaggerated picture of her pain levels and the extent of her limitations arising from her condition. I am satisfied that the applicant deliberately misreported aspects of her history. In circumstances where I am satisfied that the applicant is not a reliable historian and on occasions feigned symptoms, I cannot be reasonably satisfied that she suffers from CRPS or any other neuropathic pain condition in her left arm. She may have such a condition, but I am not affirmatively satisfied that what she has reported and presented to doctors and to the Tribunal is accurate.
My concerns about the applicant as a witness and accurate historian in and of themselves are sufficient to persuade me that I could not make a finding that the applicant suffers from an organic pain condition prompted by her burn injury. I also had concerns about the doctors who gave evidence in support of her case.
A/Prof Keys
A/Prof Keys is the applicant’s treating pain specialist. He was adamant that a pain specialist was the most qualified specialist to be proffering an opinion on whether a person has CRPS.[58] He explained in very clear terms what was necessary for a diagnosis and that he had found the necessary elements present when he examined the applicant.
[58] Transcript, 47.
I did however have a number of reservations about the evidence given by A/Prof Keys. First, the evidence that he gave about the utility of an X-ray or a bone scan was unhelpful and tended to obscure rather than assist. A/Prof Keys did not volunteer that the results of the bone scan were not consistent with the applicant’s presentation.[59] He focussed his comments about the utility of radiology on the fact that it will not assist with diagnosis. This meant that he never addressed the question of whether radiology was useful in establishing whether a patient’s complaints of pain were potentially exaggerated or not. Having heard the medical evidence, I am satisfied that radiology is useful from that perspective. It is clear from his reports on 21 February 2023 and 13 June 2023 that A/Prof Keys also considered a bone scan was a useful way of shedding light on a condition.[60] However, A/Prof Keys resisted acknowledging this in his evidence.
[59] Transcript, 71-72.
[60] Tender Bundle, document A10, 82, document A12, 87.
He also demonstrated a willingness to make commentary favourable to the applicant based on limited information. This was most evident in his 14 April 2020 report which found that the applicant was suffering from an adjustment disorder with depressed mood and anxiety, and that the condition was attributable to the burn at work.[61] Such a conclusion was barely within his expertise, given that it was a psychiatric diagnosis. But leaving that to one side, prior to giving the diagnosis there is no evidence that he took a proper psychiatric history. Knowing the applicant’s psychological history, including the impact of the motor vehicle accident would be essential before anyone could attribute the applicant’s adjustment disorder to the burn incident.[62] Consequently, A/Prof Keys came across as unduly accepting of the information he was receiving from the applicant and ended up looking like an advocate for his patient’s interests rather than a more dispassionate assessor of her health status. As a treating doctor that stance is perhaps appropriate, but it meant that he did not provide great assistance to the Tribunal.
[61] T-Documents (2021/0808), T11, 80.
[62] Transcript, 59.
For these reasons I have not been willing to accept A/Prof Keys’ conclusions.
Dr Tadros
Dr Tadros was a much more objective witness. He was satisfied that the applicant presented with objective signs of CRPS including ‘visible atrophy of the intrinsic muscles of the affected hand’ and ‘joint contracture’.[63]
[63] Tender Bundle, document 14, 93.
It is difficult to square his evidence with the findings of Dr Daly, Dr Ugwu and Dr Du Plessis. The difference in conclusions I suspect is the result of the other doctors being less willing to accept the applicant’s presentation at face value.
In many circumstances, given Dr Tadros’ pain specialty and eminence in the field, I would be inclined to accept his views. However, in this case, there are two reasons why I am not prepared to rely on him. The first is that I have found the applicant to be an unsatisfactory historian who may have feigned or exaggerated symptoms, which has significant potential in a case like this to flow into the findings of the doctors who examine her. Second, Dr Tadros gave useful evidence about the significance of a bone scan. It was given in a context where Dr Tadros was dismissing the utility of a plain X-ray and given in the belief that an X-ray was the only radiological evidence available in these proceedings. He said as follows:
…to diagnose osteopenia or loss of bone density an x-ray is a very poor measurement of that, and again I said that from a day-to-day diagnosis, osteopenia would be a poor diagnostic tool to either refute or confirm the diagnosis of complex regional pain syndrome. If you really wanted to perform a diagnostic procedure, and I never do this for a patient who comes in with complex regional pain syndrome, probably the best tool to be used would be a bone scan, because if the limb is affected by that disease, especially in the acute phase that will light up on a first phase of the bone scan.[64]
[64] Transcript, 85.
Soon after Dr Tadros gave evidence, a bone scan did surface and it was ‘not strongly consistent’ with the applicant suffering from CRPS. Given that the applicant was unable to open her hand properly for the bone scan, it is reasonable to infer that she was in an acute phase when the scan was taken. The scan clearly did not ‘light up’ and establish CRPS. Dr Tadros was not recalled to give further evidence with the benefit of the bone scan.
For those reasons, I am not satisfied that I should accept the evidence of Dr Tadros over the evidence of the other doctors who gave evidence.
Dr Daly
On the other hand, I was very impressed by the evidence of Dr Daly. He is a consultant in pain medicine and does work in clinical practice as well as preparing medico-legal reports. He gave his evidence in a straightforward manner. He saw the applicant only once, in August 2020. Although the appointment was a long time ago, it was only a few months after the applicant had been given a clear diagnosis of CRPS by her treating specialist A/Prof Keys.
It is clear from his report that the applicant’s behaviour during the examination of her left arm was unusual and the complaints of loss of range of movement and the cause were not consistent with the physical assessment of the arm. The reporting of the applicant’s symptoms was again extreme but with no objective signs consistent with those symptoms. He reports:
She reported inability to move the hand in any functional positions such as opposition, pincer grip, extension/flexion of the digits due to the pain however it was noted that both the thenar and hypothenar eminences of that hand were normal in their muscle bulk suggesting that the loss of movement has not been to the extent to result in muscle atrophy. The remainder of the examination was unremarkable.[65]
[65] T-Documents (2020/0808), T21, 135.
He did not diagnose the applicant with CRPS because the applicant did not meet the Budapest criteria. He could not explain why the applicant’s pain persisted. He reported his impression that the applicant had ‘persistent left-sided neuropathic arm and hand pain in the context of previous burns injury’.[66] That is clearly based on the reports of the applicant which I have already concluded I regard as unreliable.
[66] Ibid.
I am satisfied that when Dr Daly saw the applicant in August 2020, that she did not present with the necessary signs to permit a diagnosis of CRPS. He was the third and most qualified doctor to reach that conclusion since March 2020. I am satisfied that at that point in time the applicant was not suffering from CRPS.
Dr Du Plessis
Dr Du Plessis’ reports are thorough but need to be approached with some caution.
He never had the benefit of examining Ms Valakoski in person, which is a significant handicap when considering whether a diagnosis of CRPS is appropriate. His first examination of the applicant was unsatisfactory as it was held over video with an exercise physiologist assisting him. I do not consider that an exercise physiologist is an appropriate assistant when very specific signs need to be observed in order to make a diagnosis.
Further, I am satisfied that he did make statements which were quite legitimately understood by the applicant as a preliminary diagnosis of CRPS. I am satisfied that he did recommend treatments for Ms Valakoski on the basis of some kind of provisional diagnosis. The emails Ms Valakoski sent at the time are consistent with that conclusion, as is the note which Ms Valakoski received from Courtney Dodrill, the exercise physiologist who was present in the room with Ms Valakoski.[67] Ms Dodrill’s evidence is broadly consistent with that conclusion.
[67] T-Documents (2021/2065), T33, 317.
Having made the preliminary diagnosis of CRPS, Dr Du Plessis clearly became confused at some point during the writing of his initial report and included details about the examination which never occurred. In particular, I am satisfied that Ms Dodrill, did not assist Ms Valakoski to the toilet, nor could he have known that Ms Valakoski had a small tattoo, yet both of these details appear in his report.[68] In those circumstances I put very little weight on the conclusions that he reached in the first report.
[68] T-Documents (2021/2065), T32, 306.
The second examination and report is in a different category. It was produced with the assistance of a qualified doctor, and I have more confidence in its description of the physical examination and the observation of the behaviour of the applicant during the examination.
His report includes details which are consistent with the exaggeration of symptoms. For example, the applicant’s arm was highly sensitive to touch during formal examination but was able to rest the arm on the arm rest when being interviewed.[69]
[69] Tender Bundle, document R3, 121.
The applicant was also subjected to a two-point discrimination test where she was asked whether she could feel two points of pressure or only one. The results of the test were described by Dr Du Plessis as consistent with the applicant not being honest in reporting the sensation. He explained this conclusion in the following terms in his evidence:
In your fingertips, you’re exceedingly sensitive, and you can feel two points very close to each other. If that were not the case, Braille writing would be very much larger. Now, as you move up the arm, the sensitivity in between can widen. So you may feel a point on one point and not in another area. And that’s got two ways of being discriminated. Firstly… there are many more nerves in the fingertips. But at the same time, because there are more nerves, these differences with one nerve compared to the other must be interpreted by the parietal lobe in the brain. Now, if you have a problem with two-point discrimination, it is invariably in the brain, unless you’ve got a major injury which has damaged the nerves in the forearm…Which was not the case in this lady.
…The fact that she didn’t have two-point discrimination suggests that she’s not being totally honest with the interpretation of what she’s feeling. That’s the only way – unless one assumes that she’s got a brain injury which is causing that.[70]
[70] Transcript, 144.
These results are at consistent with non-genuine presentation.
Summary of conclusions
As should be clear from the analysis above, I am not satisfied that the applicant is a reliable witness and nor am I satisfied that her subjective reporting of symptoms accurately describes her pain experience.
In the absence of confidence in the reporting of subjective symptoms, I am not prepared to accept any diagnosis. If there was a consensus among the doctors that the objective signs of illness were there, the outcome may be different. But where there is no agreement as to the observable objective signs, acceptance of the applicant’s condition depends upon believing that she is accurately reporting her pain levels and disability. I am not satisfied that she is doing that. There is radiology and other objective tests that are consistent with the applicant not reporting accurately the level of disability she experiences.
I am not satisfied that the applicant is suffering from any organic pain condition that is the result of the burn incident in November 2019.
My finding that the applicant is not accurately reporting her subjective symptoms also has implications for the diagnosis of functional neurological disorder proffered by psychiatrist Dr O’Daly. That diagnosis depends at least upon the accurate reporting of ‘altered voluntary motor or sensory function’.[71] I am not confident that the applicant’s reports of her symptoms are accurate. In those circumstances I am not prepared to accept the diagnosis of FND (and the earlier diagnosis of somatic symptom disorder which would depend upon accurate reporting of pain symptoms). I note in any event, that the Dr O’Daly was not satisfied that the if the applicant suffered from FND it was significantly contributed to by her employment.
[71] R13 p 2
Psychological Condition - 2021/7074
The applicant’s claim for compensation in relation to her ‘adjustment disorder with anxiety and depression’ or in the alternative ‘major depressive episode’ is based on the proposition that her ongoing pain condition is having psychological sequelae. The employment contribution to her psychological condition is provided by the burn incident and the ongoing pain that the applicant claims is the result. Dr Siddle connected her adjustment disorder to her pain condition and considered that it would persist while her pain persisted.
In circumstances where I am unable to find that the applicant is suffering from an organic pain condition, I am not satisfied that her adjustment disorder has the necessary connection to her employment to be compensable.
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.
Dates of hearing:
19 to 22 February 2024, 13 August 2024
Date final submissions received: 2 December 2024 Counsel for the Applicant Mr J Mrsic Solicitors for the Applicant: Slater & Gordon Lawyers Counsel for the Respondent Mr C Clark Solicitors for the Respondent: Sparke Helmore ANNEXURE A: INDEX OF MATERIAL BEFORE THE TRIBUNAL
Item
DESCRIPTION
Applicant’s Filed Material
1
Supplementary Applicant Statement dated 16 February 2024 and Annexure 1
2
Extract of summons material filed 27/05/2024
3
Supplementary Applicant Statement dated 17 July 2024 and Annexure 1 and 2
Respondent’s Filed Material
4
Statement of Courtney Dodrill dated 6 August 2024
5
Supplementary Report of Dr du Plessis dated 25 July 2024
6
Request for supplementary report dated 10 July 2024
Joint Material
TB
Agreed Tender Bundle (total 212 pages)
Tribunal Documents
Tr1.
Section 37 T-Documents for 2021/0808 (T1-T57, total 396 pages)
Tr2.
Section 37 T-Documents for 2021/2065 (T1-T42, total 494 pages)
Tr3.
Supplementary Section 37 T-Documents for 2021/2065 (ST1-ST2, total 22 pages)
Tr4.
Section 37 T-Documents for 2021/7074 (T1-T18, total 112 pages)
Tr5.
Supplementary Section 37 T-Documents for 2021/7074 (ST1-ST10, total 109 pages)
Tr6.
Supplementary Section 37 T-Documents for 2021/2065, 2021/0808 and 2021/7074 (ST1-ST42, total 45 pages)
Tr7.
Supplementary Section 37 T-Documents for 2021/2065, 2021/0808 and 2021/7074 (ST1-ST3, total 31 pages)
Tr8.
Supplementary Section 37 T-Documents for 2021/2065, 2021/0808 and 2021/7074 (ST4-ST6, total 14 pages)
Documents Exhibited in Proceedings 19-22 February 2024 and 13 August 2024
Exh 1.
3 x Curriculum Vitae of A/Prof Keys, Dr Tadros and Dr Siddle (total 9 pages)
Exh 2.
File note of A/Prof Keys dated 9 February 2020
Exh 3.
Report of Dr Foxcroft dated 10 December 2019
Exh 4.
Clinical notes of Professor Keys dated 14 April 2020
Exh 5.
Bone scan report of Dr Storey 5 May 2023
0