Wuth and Comcare (Compensation)
[2020] AATA 3625
•3 September 2020
Wuth and Comcare (Compensation) [2020] AATA 3625 (3 September 2020)
Division:GENERAL DIVISION
File Number(s):2014/4007; 2018/4238
Re:Nicole Wuth
APPLICANT
AndComcare
COMCARE
DECISION
Tribunal:Deputy President Gary Humphries AO
Date:3 September 2020
Place:Canberra
The reviewable decisions dated 2 July 2014 and 27 July 2018 are affirmed.
........................................................................
Deputy President Gary Humphries AOCatchwords
WORKERS COMPENSATION – chronic daily headache – whether the applicant continues to suffer the effects of an injury – whether the applicant suffers permanent impairment as a result of the condition – whether the respondent is liable to pay for non-economic loss in respect of the condition – Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468 considered – applicant does not suffer from an injury for the purposes of section 14 of the Safety, Rehabilitation and Compensation Act 1988 – decision under review affirmed
WORKERS COMPENSATION – chronic daily headache – what the applicant’s normal weekly earnings were at the time of the injury – applicant does not suffer an injury for the purposes of the Safety, Rehabilitation and Compensation Act 1988 – decision under review affirmed
Legislation
Administrative Appeals Tribunal Act 1975
Safety, Compensation and Rehabilitation Act 1988
Cases
Australian Postal Corporation v Lucas [1991] FCA 612
Beezley v Repatriation Commission (2015) 150 ALD 11
Comcare v Filla [2002] FCAFC 61
Comcare v Stefaniak [2020] FCA 560
Comcare v Wuth (2017) 156 ALD 561
Comcare v Wuth (2018) 159 ALD 1
Comcare v Wuth (No 2) [2018] FCAFC 60
Comcare v Reardon [2015] FCA 1166
Commonwealth v Beattie [1981] FCA 88
Cosgrove-Kaye and Comcare [2019] AATA 1238
Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34
Hopkins and Comcare [2016] AATA 742
Howard v Comcare [2019] FCA 1031
Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 200 CLR 286
Martin v Australian Postal Corporation [1999] FCA 655
Mellor v Australian Postal Corporation [2009] FCA 504
Military Rehabilitation and Compensation Commission v Katterns [2017] FCA 641
Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468
Prain v Comcare (2017) 256 FCR 65
Priestley and Comcare [2019] AATA 5456
Riley v Comcare [2011] AATA 674
Telstra Corporation Limited v Hannaford (2006) 151 FCR 253
Tippett v Australian Postal Corporation [1998] FCA 335
Williamson and Comcare [2019] AATA 4774
Wuth and Comcare [2015] AATA 947REASONS FOR DECISION
Deputy President Gary Humphries AO
3 September 2020
INTRODUCTION
Ms Nicole Wuth suffers from debilitating headaches. She suffered particularly intense headaches while working for the (now) Department of Finance (the Department) in early 2007. In September 2012 Comcare accepted (pursuant to a consent decision made by the Tribunal) her condition of chronic daily headache as a work-related injury, and agreed that the injury should be deemed to have occurred on 27 February 2007.
LITIGATION HISTORY
On 29 April 2010, Ms Wuth signed a workers’ compensation claim form for Entrenched Chronic Daily Headache (intractable migraine) arising from an exacerbation of post-viral fatigue. She attributed her condition to Inappropriate duties and inappropriate expectation to work long hours, in excess of those allowed by previously submitted medical restrictions.[1]
[1] In this decision words in italics generally indicate a direct quotation.
That claim was rejected by Comcare, and rejection of the claim was affirmed in a reviewable decision. Proceedings were filed in the Tribunal and on 14 September 2012 a consent decision pursuant to s 34D of the Administrative Appeals Tribunal Act 1975 was filed setting aside the reviewable decision and substituting in its place a determination that:
[Ms Wuth] suffered Chronic Daily Headache being a disease that was significantly contributed to by [her] employment by the Department of Finance and Deregulation (Agency) with a deemed date of injury of 27 February 2007.
The decision noted that her accepted condition of chronic daily headache may have caused symptoms of tiredness or fatigue.
On 19 February 2014, Ms Wuth completed a claim for permanent impairment and non-economic loss for chronic daily headache pursuant to ss 24 and 27 of the Safety, Rehabilitation and Compensation Act 1988 (the Act). Her claim form was signed by her GP, Dr Ian Brown, who assessed her level of impairment at ≥ 50%.
On 2 July 2014 Comcare affirmed an earlier decision made on 21 March 2014 which denied liability to pay compensation for permanent impairment and non-economic loss in respect of her headache condition. This decision is the reviewable decision which comes before the Tribunal in Application 2014/4007.
The decision under review in Application 2018/4238 is the reviewable decision dated 27 July 2018 (affirming a determination dated 11 May 2018) which calculated Ms Wuth’s normal weekly earnings (NWE) under s 8 of the Act in relation to the headache condition. This calculation is necessary to determine what rate of incapacity payments she is entitled to pursuant to s 19. In the reviewable decision Comcare decided that Ms Wuth’s NWE were $1,260.38, relying, in part, on s 8(5). It found that the figure of $1,260.38 fairly represented the weekly rate at which she was being paid in her employment before the injury of 27 February 2007. Alternatively, Comcare concluded that any excess – created by multiplying 36.75 hours per week by Ms Wuth’s ordinary hourly rate of pay – must be removed from her NWE.
Between these two reviewable decisions, however, there was a decision of the Tribunal followed by extensive proceedings in the Federal Court which I now briefly summarise.
In December 2013 Comcare had made a reviewable decision calculating Ms Wuth’s NWE on the basis that she worked 29.4 hours per week during the relevant period before her injury. This decision, together with the decision of 2 July 2014 denying liability under ss 24 and 27 for the headache condition, were referred for merits review to the Tribunal.
In its decision (Wuth and Comcare [2015] AATA 947 – Wuth1), the Tribunal affirmed Comcare’s decision with respect to the calculation of NWE but set aside the decision with respect to compensation for permanent impairment and non-economic loss. It found that the impairment she suffered by virtue of her headache condition was incapable of assessment according to the provisions of Comcare’s Guide to the Assessment of the Degree of Permanent Impairment (the Guide), nor was an impairment rating provided for by the 5th Edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA5). Accordingly, it found that the whole person impairment she suffered must be assessed using clinical judgement, as suggested by AMA5. It then proceeded to make that assessment, drawing on the evidence of several medical witnesses, which reflected that evidence but which did not precisely replicate the view of any one of those witnesses. It arrived at a whole person impairment of 14%.
This decision was appealed to a single judge of the Federal Court. In his decision (Comcare v Wuth (2017) 156 ALD 561 – Wuth2), Rares J upheld the Tribunal’s decision with respect to permanent impairment but set aside its decision regarding NWE, saying that s 8(1) required reference to the number of hours actually worked by the employee, not the hours for which she was paid. On the basis that she actually worked (at least) 36.75 hours in the relevant period, her NWE should be calculated accordingly.
Comcare appealed this decision to the Full Federal Court. In its decision (Comcare v Wuth (2018) 159 ALD 1 – Wuth3), the court affirmed the approach taken by the primary judge in Wuth2 with respect to the calculation of NWE but considered that the Tribunal had been in error to formulate its own lay clinical judgement with respect to Ms Wuth’s whole person impairment when that was a matter which should have been left to expert evidence. The court also considered that Comcare had been denied procedural fairness in not being allowed to make submissions with respect to the Tribunal’s approach and call expert evidence on the question. The matter of assessing Ms Wuth’s permanent impairment rating was remitted to the Tribunal to be determined according to law.
The Full Federal Court described the scope of the remittal to the Tribunal in the following terms (Comcare v Wuth (No 2) [2018] FCAFC 60 – Wuth4 – at [5]-[6]):
5 As a result of the manner in which the appeal was resolved, the parties agree that the Tribunal’s decision must be set aside and the matter remitted to the Tribunal for reconsideration according to law. As a part of that task, the parties agreed that it will be necessary for the Tribunal to afford the parties an opportunity to lead evidence and make submissions with respect to the “clinical judgment” assessment methodology in Section 1.5 of the 5th edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA5). The main point of difference between the parties is whether, as submitted by Ms Wuth, the Tribunal should afford the parties an opportunity to lead evidence and make submissions limited to whether Chapter 13 of the AMA5 (including Tables 13.2 and 13.3) enables the “clinical judgment” comparison to be undertaken, or whether, as submitted by Comcare, the Tribunal ought not to confine the parties to any particular chapter or tables of the AMA5.
6 We agree with Comcare’s submissions on this issue. Comcare’s suggested approach allows for the possibility that, if the expert evidence demonstrates that Tables 13.2 and 13.3 in Chapter 13 of the AMA5 do not enable a “clinical judgment” comparison, then as a matter of fairness the parties ought to be afforded the opportunity to lead expert evidence directed to whether any other tables or chapters of the AMA5 enable the “clinical judgment” comparison to be undertaken and, if so, the degree of impairment (if any) which should be ascribed to Ms Wuth’s impairment.
Accordingly, the remitter was set down for hearing before the Tribunal, as presently constituted, in February 2020. Prior to the hearing, a directions hearing was conducted at which agreement was reached as to the instructions that should be given to the two medical experts who were, for the purposes of the substantive hearing, to undertake the clinical judgement assessment described by the court in Wuth3 and Wuth4. Those instructions were set down in writing as follows:
Background
This matter has been remitted to the Administrative Appeals Tribunal from the Federal Court of Australia. One of the issues that the Tribunal is required to consider is the degree of impairment (if any) resulting from Ms Wuth’s claimed “chronic daily headache”. In that context, the Federal Court has directed the Tribunal to:
1. give the parties an opportunity to lead evidence and make submissions directed to the "clinical judgment" assessment methodology provided by Section 1.5 of the fifth edition of the American Medical Association's Guides to the Evaluation of Permanent Impairment (AMA5); and
2. in so doing, the Tribunal is not to confine the parties to any particular table or tables of the AMA5.
Instructions and questions
In answering the following questions, please ensure that you have available to you a copy of AMA5 and the March 2002 Errata. Please read in full Section 1.5 Incorporating Science with Clinical Judgment of AMA5, which appears on pages 10-11 of that document.
Please assume that the present circumstances involve a situation where impairment ratings are not provided for the claimed “chronic daily headache” under the rest of AMA5.
1. Please assess the degree of impairment experienced by Ms Wuth using your clinical judgment, comparing measurable impairment resulting from her “chronic daily headache” with measurable impairment resulting from similar conditions with similar impairment of function in performing activities of daily living.
Please provide reasons for your opinion. Without limiting the matters that you might address, please ensure that you set out which table or tables of AMA5 that you used for the purpose of the above comparison.
2. Please express the degree of impairment experienced by Ms Wuth as a percentage of the whole person, rather than simply as a percentage of a part of the body or of a bodily system or function.
3. Please provide any other comments that you consider to be relevant.
Briefing materials
Aside from the above assessment tools, this would be a matter for the parties.
The substantive hearing occurred on 17 and 18 February 2020, and the medical experts – Prof Paul Darveniza and Dr Ross Mellick – gave live evidence. The parties made closing submissions in writing to the Tribunal following the conclusion of the hearing. Following the lodging of those submissions, some further correspondence between the Tribunal and the parties occurred concerning the relevance of the recent Federal Court decision in Comcare v Stefaniak [2020] FCA 560 (per Thawley J).
FACTUAL BACKGROUND
Ms Wuth was born in March 1978.
In her evidence, she told the Tribunal she had had no history of migraine headaches before contracting a viral infection in December 2005. She commenced employment with the Department on 27 November 2006, in a transfer from the Department of Health and Ageing. She told the Tribunal that, notwithstanding that her viral condition had been associated previously with headaches, she had not experienced any headaches in the period leading up to joining the Department. However, between early 2007 and May that year, she developed migraine headaches when she was working long hours, and was tired. She first saw a doctor about this problem in February 2007. However, a CT scan of the brain on 27 May 2007 was normal.
Taking into account her medical condition, her offer of employment with the Department of Finance stipulated that she would work 29.4 hours per week. It was agreed that she would not work on Wednesdays. The relevant Australian workplace agreement also stipulated that she would be entitled to Time off In Lieu (TOIL) in certain circumstances for additional hours worked. She told the Tribunal that in 2007 she accrued approximately 4 to 5 days of TOIL. Her employment pattern adhered to the contract in the period leading up to Christmas. However, the intensity of work increased in January in the lead up to the 2007 Federal Budget.
Ms Wuth told the Tribunal she has not worked since 2008. Her employment by the Commonwealth was terminated on 27 May 2010 on grounds of medical invalidity.
In January and February 2007 she would usually be at work, she said, by 8.00am and rarely left before 8.00 or 9.00pm. She was not supposed to work, under her reduced hours regime, on Wednesdays but she did in fact often work on those days and also on several Saturdays. She had showed her medical certificates restricting her hours to her supervisors, Mr Clayton Hitch and Ms Sharon Ong, but they pressed her to work longer hours because [I] was expected to pull my weight. She had attempted to obtain electronic records of her swipe card entry into her workplace during this period to establish when she had attended, but had been told that these records had been destroyed.
Ms Wuth said that there was no time since early 2007 when she has not suffered from headaches. In 2007 these were lasting in some cases for a few days; in May that year one headache lasted for approximately 10 days. She was admitted to hospital on that occasion.
She said she associated the headaches with bright lights, loud noises and computers. The headaches would be accompanied by vertigo and nausea. She is sometimes unable to drive a car.
Throughout this period she had been treated by Dr Brown as her GP. She explained that he and her neurologist had trialled many forms of medication for her headaches, particularly in the period 2007-2011, but none had provided lasting relief. Hence, she is not presently taking any medication. The intensity of the headaches abated during her pregnancies, but returned once she had given birth. The only treatment she had not trialled to date was monoclonal antibodies, but she said that her doctor is considering the appropriateness of this treatment for her.
To cope with her condition, Ms Wuth limits exposure to aggravating factors such as bright lights and loud noises. She no longer attends concerts or goes to movies. She prefers to stay home when possible, and wears sunglasses and uses noise-cancelling headphones when she does go outside. Her main occupation these days is caring for her children but if she was capable she would prefer to be in the workforce, she said.
Under cross-examination, Ms Wuth said she took two days of sick leave (but classed as annual leave because she had no sick leave remaining) on 15 and 16 February 2007. However, she said that those days off were offset by extra work on other days. She felt she was likely to have worked on Wednesday 14 February and possibly on Saturday 17 February as well. Counsel for Comcare put it to her that she worked only 29.4 hours per week in the weeks before 27 February 2007; she denied this, saying she worked way more than that. There was a day or two here and there when she would go home between 5 and 5:30pm – typically after she drew her longer hours to the attention of her manager – but generally she went home much later than that.
Ms Wuth gave birth to her third child on 13 November 2018. A month later she saw Dr Brown, who recorded in his clinical notes: I don’t think migraines will remain in their current remission. She accepted counsel’s suggestion that that her migraine symptoms were fewer at that time. She conceded that she did not discuss having headaches with her doctor in the period November 2016 to June 2019. She also said that she saw Dr Bridget Ryan, a clinical psychologist, at one point in connection with marital issues connected to the pregnancy. She agreed that this issue sometimes caused stress which worsened her headaches, a problem which lasted most of the pregnancy.
She was asked about her interest in photography. She said that this entailed some periods looking at a computer screen, but that she self-regulated the amount of time she spent doing this. She also said she has travelled overseas; she contracted a painful foot condition while walking on snow in Europe in 2016. She makes modifications in order to travel, such as breaking up the journey.
Ms Wuth said her condition had waxed and waned over the years since 2007, but was not as bad as it was in 2007; it has never gone away. She agreed that there were days when stress relating to personal matters would make her headaches worse. She said that the headaches she developed in 2007 were different in quality to those she had experienced before.
MEDICAL EVIDENCE
On 21 February 2006, Dr Brown recorded that Ms Wuth had been unwell for the last 10 days with, among other symptoms, vertigo and bifrontal headaches, worse on computer, sometimes waking [with] it. He diagnosed viral labyrinthitis and prescribed Stemetil. On 10 July 2006, Dr Brown diagnosed chronic fatigue syndrome probably related to past glandular fever infection, writing that she tires very easily and suggested that she reduce her work hours.
In a report dated 14 June 2007, neurologist Dr Colin Andrews recorded the following:
[Ms Wuth] has chronic daily headache of a migraine type. She has migrainous vertigo and appears also to have fibromyalgia.
She had EVB [Epstein-Barr virus?] in February 2006 and the fatigue started after that with some depression. It has gone onto fibromyalgia with diffuse musculo-skeletal aching, tender muscle points, restless sleep, chronic fatigue and chronic daily headache.
Dr Andrew Lark, occupational physician, wrote a report dated 24 July 2007, in which he said:
[Ms Wuth] has therefore been working four rather than five days per week because of her health for about one year. She has found that this has helped. She feels that she has been less prone to infections such as colds since working four days per week…
[Ms Wuth] indicated that she had started to get sick in early 2006. Glandular fever had eventually been confirmed by blood testing…
Her main problems over the last year and a half have been undue fatigue and constantly feeling unwell. She has been tired all the time…
The main diagnosis is chronic fatigue syndrome. I understand that Neurologist Dr Andrews has recently diagnosed migraine headache…
The indications are that [Ms Wuth’s] condition of chronic fatigue syndrome has become permanent.
In a further report dated 1 August 2007, Dr Brown wrote that Ms Wuth had presented in February 2006 with Epstein-Barr virus, and that since then had impaired exercise intolerance and work endurance consistent with chronic fatigue syndrome. She had also developed vertiginous common migraines, occurring on a very regular basis.
In a report dated 12 April 2011, Dr Jeff Cubis, consultant psychiatrist, wrote:
An anxious somatising personality disorder was not excluded, but generally she presented consistent with a person incapacitated by physical symptoms regardless of cause.
In a further report dated 22 February 2012, Dr Andrews wrote:
There was a background history of chronic fatigue syndrome starting in February 2006. There was no history of irritable bowel syndrome and no other major problems associated with the chronic fatigue to give a good history of fibromyalgia. Of course migraine and fibromyalgia are commonly associated.
Dr Andrews went on to find that her employment contributed significantly to the aggravation of post-chronic fatigue syndrome. He also wrote that usually once the stressors are removed it usually becomes much easier to treat and the outcomes are usually good. He also observed Why there hasn’t been more substantial improvement with treatment, time and not having to go to work is not clear.
In a report dated 24 November 2019, Dr Brown wrote that he had an absolute belief that Ms Wuth continued to suffer the effects of an injury she sustained at work. He purportedly assessed her whole person impairment empirically at 50%.
Associate Professor Paul Darveniza, neurologist, examined Ms Wuth on 25 November 2019 and wrote a report dated 2 December 2019. He noted a number of conditions she had suffered from, including post-glandular fever (Epstein-Barr) virus and chronic fatigue syndrome. He also noted a number of treatments provided by specialists, including Prof Ray Garrick and Dr Andrews.
Prof Darveniza considered that she suffered from chronic daily headaches with migrainous features, and that this condition was work-related, stable and permanent. He suggested that she might try monoclonal antibodies, recently developed treatment, but considered that any other treatment was unlikely to be helpful. He considered that she was unfit for gainful employment. He also undertook an assessment of her whole person impairment based on clinical judgement. For this purpose he placed her impairments within a moderate range of 20-40%, and determined that the rating should be 30%.
He also gave evidence by telephone at the hearing. He said that he considered that once migrainous headaches transform into chronic daily headaches, they do not improve unless treated. Though such a condition might modify over the passage of time, they also often just continue. He made an educated guess that treatment by monoclonal antibodies would provide a 30% chance of significant improvement in her condition.
With respect to the whole person impairment rating of 30% he had attributed to Ms Wuth, Prof Darveniza said that the scale he had developed was a qualitative one, since quantitative rating is not possible with headaches. In assigning a rating, he would take into account the frequency and intensity of the headaches and how they affect activities of employment and daily living. He considered that the history of her walking on snow in Europe and developing a painful knee condition had no bearing on his rating.
Under cross-examination, Prof Darveniza confirmed that he had not directly used any table in AMA5 to determine the 30% impairment rating he had arrived at. He had, however, indirectly extrapolated from the tables. He denied the suggestion that the contribution from employment to her headaches was no longer significant. He used the analogy of a bad back caused by an incident at work; he said ceasing employment would not necessarily mean the bad back would go away. In this case, the removal of the precipitating factor – employment – did not mean that the provoked condition would necessarily end. When it was put to him that scans of her head had come back normal, he said they usually are with migraines. He said that, with migraines, there is no structural pathology which explains them.
In re-examination, Prof Darveniza agreed that, in arriving at the 30% rating, he was making a clinical judgement based on the history, and the validation of that history, based on his own experience and other cases he had treated. He also had a high degree of confidence that her present headache condition was related to employment.
Dr Ross Mellick, consultant neurologist, produced several reports on Ms Wuth: two in July 2010, one in June 2012, one on 19 December 2018 and one on 24 December 2019. In the report dated 19 December 2018, he confirmed his diagnosis from 2010 of her condition, namely chronic daily headache or chronic tension headache. When asked to comment on what factors are relevant to Ms Wuth’s claimed ailment, he considered that her bifrontal headaches, worse on computer, sometimes waking with it (noted by Dr Brown in February 2006) is certainly relevant to Ms Wuth’s “ailment”. He considered that her current condition is not likely to be causally connected in any material degree to her employment terminated approximately 10 years [sic], and that she was fit for employment. He concluded that he was unable to establish, on the basis of his examination, a permanent impairment from which she was suffering. He also wrote that:
I am not able to establish, on the basis of the Comcare Guide that permanent impairment is currently present.
Dr Mellick gave evidence by telephone. He confirmed his opinion from 2010 that excessive tiredness and very long hours of work had originally contributed to Ms Wuth’s headache. He also confirmed that, as of July 2010, work-related stress would not now represent a reasonable explanation for the continuing symptoms. In his opinion, absence from employment (then for a period of some 15 months) was sufficient to deny a causal connection between employment and the continuing symptoms. The conclusion was reached with more certainty after a 12-year absence for employment. He agreed with the proposition that intervening life stressors may contributes to chronic tension headaches. Having three small children at home may constitute stressors of that kind. He agreed that time and circumstance are likely to have attenuated any contribution from employment.
Dr Mellick appeared to say that what Ms Wuth did in Europe in 2016 was irrelevant to the question of whether she suffered a permanent impairment. With respect to the usefulness of monoclonal antibodies to treat her condition, he told the Tribunal that he would not use this modality unless her headaches were absolutely devastating. Noting that he was not her treating doctor, he nonetheless considered that the treatment had a very low chance of assisting her.
ISSUES – 2014/4007 AND 2018/4238
In relation to matter 2014/4007, the Tribunal must determine:
(a)Whether Ms Wuth continues to suffer the effects of the chronic daily headache;
(b)Whether she suffers permanent impairment as a result of that chronic daily headache;
(c)If so, whether she suffers permanent impairment of at least 10% of a whole person resulting from the chronic daily headache, so as to require Comcare to pay compensation: s 24(7) of the Act; and
(d)Whether Comcare is liable to pay compensation for non-economic loss pursuant to s 27 of the Act.
In relation to matter 2018/4238, the Tribunal must determine:
(a)What were Ms Wuth’s normal weekly earnings at the date of her injury, as calculated pursuant to s 8(1) of the Act?
(b)What is the average number of hours worked in each week in her employment during the relevant period?
(c)What is the average hourly ordinary time rate of pay during the relevant period?
(d)Do the normal weekly earnings as calculated under s 8(1) of the Act fairly represent the weekly rate at which the Applicant was being paid in respect of her employment before the injury?
(e)If not, what is the reasonable alternative period?
(f)What are the normal weekly earnings as calculated in relation to the alternative period, pursuant to s 8(5) of the Act?
The Tribunal was also asked to assess whether s 53 operated to preclude this Wuth’s claim for compensation.
LEGISLATION
Subsection 14(1) of the Act provides that:
Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
Injury is defined in ss 5A and 5B. Section 5A provides:
(1)In this Act:
"injury" means:
(a)a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee's employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee's employment.
Section 5B, in turn, provides:
“disease" means:
(a)an ailment suffered by an employee; or
(b)an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee's employment by the Commonwealth or a licensee.
However, pursuant to the Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007, an injury sustained before the commencement of that Act (13 April 2007) is to be dealt with according to the precursor definition of disease, being a condition to which employment contributes to a material degree.
Where a worker suffers a compensable injury, his or her entitlement to incapacity payments is determined pursuant to s 19(2), which provides that:
Subject to this Part, Comcare is liable to pay to the employee in respect of the injury, for each week that is a maximum rate compensation week during which the employee is incapacitated, an amount of compensation worked out using the formula:
NWE – AE
where:
AE is the greater of the following amounts:
(a) the amount per week (if any) that the employee is able to earn in suitable employment;
(b) the amount per week (if any) that the employee earns from any employment (including self-employment) that is undertaken by the employee during that week.
NWE is the amount of the employee's normal weekly earnings.
Normal weekly earnings are calculated pursuant to s 8. Subsection 8(1) provides that:
For the purposes of this Act, the normal weekly earnings of an employee (other than an employee referred to in subsection (2)) before an injury shall be calculated in relation to the relevant period under the formula:
(NH x RP) + A
where:
NH is the average number of hours worked in each week by the employee in his or her employment during the relevant period;
RP is the employee’s average hourly ordinary time rate of pay during that period; and
A is the average amount of any allowance payable to the employee in each week in respect of his or her employment during the relevant period, other than an allowance payable in respect of special expenses incurred, or likely to be incurred, by the employee in respect of that employment.
Subsection 8(5) provides that:
Where, because of the shortness of the relevant period, the normal weekly earnings as calculated in relation to the relevant period under subsection (1) or (2) would not fairly represent the weekly rate at which the employee was being paid in respect of his or her employment before the injury, the normal weekly earnings before the date of the injury shall be calculated in relation to such other period as Comcare considers reasonable for the purpose of arriving at an amount that does fairly represent the weekly rate at which the employee was being so paid.
53. An injured worker may also be entitled to compensation for injuries which result in permanent impairment. Relevantly, s 24 provides:
(1)Where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury.
(2)For the purpose of determining whether an impairment is permanent, Comcare shall have regard to:
(a) the duration of the impairment;
(b) the likelihood of improvement;
(c) whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; and
(d) any other relevant matters
(3)Subject to this section, the amount of compensation payable to the employee is such amount, as is assessed by Comcare under subsection (4), being an amount not exceeding the maximum amount at the date of the assessment.
(4)The amount assessed by Comcare shall be an amount that is the same percentage of the maximum amount as the percentage determined by Comcare under subsection (5).
(5)Comcare shall determine the degree of permanent impairment of the employee resulting from an injury under the provisions of the approved Guide.
(6)The degree of permanent impairment shall be expressed as a percentage.
(7)Subject to section 25, if:
(a) the employee has a permanent impairment other than a hearing loss; and
(b) Comcare determines that the degree of permanent impairment is less than 10%;
an amount of compensation is not payable to the employee under this section…
Where an entitlement to compensation for permanent impairment is established under s 24, compensation for any non-economic loss suffered by the employee may also be payable pursuant to s 27.
CONSIDERATION – THE CLAIM IN APPLICATION 2014/4007
Does Ms Wuth suffer from a compensable injury?
In order to obtain compensation for a permanent impairment pursuant to s 24, the Tribunal must be satisfied that Ms Wuth continues to suffer from an injury pursuant to s 14. If there is no injury, there cannot be a permanent impairment arising from it. Since her injury occurred before April 2007, the Tribunal must be satisfied that her employment continues to make a material contribution to her headache condition.
Comcare made two submissions to the Tribunal on the question of whether Ms Wuth has a compensable injury. The first was that, if she did suffer from a work-related chronic daily headache condition in February 2007, she no longer suffers from that condition, that is, her former employment no longer makes a material contribution to the condition. The second was that, even if she still suffers from chronic daily headaches, that condition does not satisfy the test of an injury under s 14.
Does Ms Wuth still suffer work-related chronic daily headache?
Comcare submitted that the weight of the evidence before the Tribunal establishes, on the balance of probabilities, that her former employment no longer makes a material contribution to any headache condition from which he presently suffers.
In support of this contention, Comcare pointed to the evidence that Ms Wuth had suffered headaches before the employment-related events of 2007. Dr Lark diagnosed headache associated with a post viral fatigue syndrome commencing in December 2005. Both Dr Andrews and Dr Janaka Seneviratne, a neurologist, considered that her headaches were attributable to Epstein-Barr virus infection she experienced in 2005. Moreover, at the time of the hearing she had been absent from the work environment for more than 12 years, suggesting that any work-related contribution to her headaches could no longer be considered material. Stress associated with bearing and rearing three children in the intervening years had led to the sustainment of her migraine condition, it suggested. There was also evidence that stress arising from her relationship with her husband had contributed to her present condition.
Comcare also drew attention to evidence of Ms Wuth that her headaches were made worse by noise, light, her children’s misbehaviour and marital tensions. The inference the Tribunal takes from these references is that these factors, and not her former employment, now substantially account for the incidence of headache. Comcare also noted that Prof Darveniza had been unable to identify anything in Ms Wuth’s duties which would have caused a permanent physiological change, and that there was no other physical evidence to explain her symptoms. It relied upon the evidence of Dr Mellick to the effect that a material contribution to those symptoms from employment was unlikely given the passage of time since 2008. This opinion was consistent with the view expressed by Dr Andrews in his report of February 2012 that usually once the stressors are removed [chronic daily headache] usually becomes more easier to treat and the outcomes are usually fairly good. Dr Andrews also expressed doubt about whether, at the time of that report, the work-related events would still be a factor now in her chronic fatigue syndrome. A further factor relied upon by Comcare was that Ms Wuth did not report any headaches to her GP between November 2016 and June 2019.
Comcare submitted that Ms Wuth’s position was analogous to that of the applicant in Prain v Comcare (2017) 256 FCR 65, where time and circumstance had the effect of pushing any relevant employment factors further and further into the background, to the extent that the applicant no longer suffered a disease at the time of the reviewable decision.
The Tribunal does not accept this characterisation of the present state of Ms Wuth’s condition. Standing against the evidence of Dr Mellick is that of Prof Darveniza, who, in his report of 2 December 2019, considered that her work-related chronic daily headaches with migrainous features was a condition which could be considered stable and permanent. He noted, in his oral testimony, that she still gets a daily headache… which ramps up two to three times per week. These headaches were aggravated or triggered by light, tiredness, prolonged work, ambient noise, poor sleep, aromatic aromas. Prof Darveniza considered that there was a connection between these headaches and her former employment, saying:
…if someone has got a chronic daily headache, it’s not a short-term prospect and once migrainous headaches transform into a chronic daily headache, usually they don’t respond unless they’re treated, you know, [indistinct] they’re persistent permanently and they might nullify or modify slightly over many years, but often they just continue, unless they respond to specific treatments…
The evidence of Dr Mellick was quite inconsistent with, if not diametrically opposed to, that of Prof Darveniza, obliging the Tribunal to determine which expert’s evidence it prefers.
The Tribunal holds some misgivings about the evidence of Dr Mellick. Even accounting for the difficulties of giving evidence by telephone, his testimony was often discursive, verbose and unresponsive. Concerningly, he did not appear to have refreshed his memory of Ms Wuth’s case history prior to the hearing or even to have re-read his own previous reports. When his attention was drawn to particular segments of those reports, he insisted on reading them out aloud, sometimes more than once, as if to apprise himself of what he had said. At one point he told the Tribunal I haven’t read this carefully for 10 years. His appreciation of reports of other medical specialists in relation to Ms Wuth seemed similarly tenuous. He told the Tribunal, for example, that Prof Darveniza’s report made no reference to treatment by monoclonal antibodies, but when referred to just such a reference by counsel for Comcare he said I didn’t see it (even though he later said he had read the report twice before giving evidence that day). He also appeared then to notice – seemingly for the first time – that Prof Darveniza diagnosed Ms Wuth with chronic daily headaches with migrainous features. He expressed surprise at this diagnosis and said to my knowledge no-one has made a diagnosis of migraine, and later, no-one has made a diagnosis of migraine – ever. However, he later appeared to deny that he had said this.
Apart from Prof Darveniza’s reference to migrainous features, there are multiple references to migraine, or migraine-like features, in various reports of the GP, Dr Brown, and the neurologists, Dr Garrick and Dr Andrews. In addition, Ms Wuth’s workers’ compensation claim form dated 24 April 2010 clearly sets out a history of treatment for migraine. All of these documents were apparently referred to Dr Mellick by Comcare on 3 December 2018 as the basis for his report of 19 December 2018. Some of these documents, including the report of Prof Darveniza, were apparently sent again to Dr Mellick by Comcare just a few days before he gave evidence. Against this background, his surprise in the witness box at the suggestion she might suffer from migraine seems astonishing. It appears to suggest either that he had, in fact, not read the documents when sent to him, or had read them and then overlooked or forgotten the numerous references to migraine.
At various points he appeared to contradict himself. For example, when asked by counsel for Comcare to confirm that her history of bifrontal headaches was relevant to her present headache condition (as he appeared to have said in his 2018 report that it was) he denied this and said there was no connection. He also agreed under questioning by the Tribunal that he had been in error when he had implied in that report that the Guide could be used to assess whether a person had a permanent impairment.[2]
[2] The Guide’s function is to determine the degree of permanent impairment; the existence of a permanent impairment is the sine qua non for its use in that way: s 24(5).
By contrast the evidence of Prof Darveniza was generally lucid, rational and persuasive. On balance, the Tribunal prefers this evidence over that of Dr Mellick. As a consequence, it is able to conclude that Ms Wuth continues to suffer from chronic daily headaches which, on the balance of probabilities, are still materially contributed to by her former employment with the Department.
With respect to the other submissions made by Comcare, the Tribunal accepts that Ms Wuth suffered from headaches from about 2005, but notes that the evidence consistently points to the work-related events of 2007 as constituting an aggravation or exacerbation of her underlying condition. Dr Andrews described that underlying condition as post-chronic fatigue syndrome. Dr Garrick, in his report of 14 September 2009, considered that:
It is clear that identifiable stressors including prolonged work times, the anxiety of work expectations and probably postural factors in relation to computer work have all contributed to the persistence of symptoms although they were not the primary cause.
In this context, the existence of an underlying or pre-existing condition does not preclude a finding that Ms Wuth suffered a work-related aggravation of that condition in 2007. It is immaterial that the condition accepted by Comcare in 2012 was not described as an aggravation. Nor does the role of factors such as light, noise or domestic stresses in the incidence of headaches demonstrate that these factors are causing – as opposed to exacerbating or triggering – her headache condition. Nor is it axiomatic, as Comcare seems to suggest, that a condition such as this, to the extent that it related to employment, must logically have waned with the effluxion of time. Prof Darveniza’s evidence was that such conditions may become entrenched and chronic, notwithstanding that this experience is the exception rather than the rule. I accept the evidence that Ms Wuth falls within that exception. Moreover, the fact that she did not report any headaches to her GP between November 2016 and June 2019 is consistent with her own evidence that many treatments had been attempted prior to this point, all unsuccessfully, and as a result she was not taking any medication presently.
Accordingly, the Tribunal finds that Ms Wuth still suffers chronic daily headaches and that her former employment still makes a material contribution to that condition.
Do Ms Wuth’s chronic daily headaches satisfy the test of an injury under s 14?
Comcare submitted that, pursuant to the decision of the High Court in Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468, the condition from which Ms Wuth suffers does not satisfy the test of an injury under s 14. On this basis, it was argued, in accordance with Telstra Corporation Limited v Hannaford (2006) 151 FCR 253, that Ms Wuth did not ever suffer an injury under the Act.
The High Court’s decision in May has been the subject of intense legal debate since it was delivered in 2016. Mr May was a member of the RAAF when he was said to suffer a condition described as vertigo after receiving vaccinations in the course of his employment. Although there was a temporal relationship between the vaccinations and the onset of vertigo, the Tribunal found that there was no causal evidence linking them and, since there was no pathology consistent with his symptoms, no diagnosis could be made. The Tribunal declined his claim of an injury under the Act because he had experienced nothing amounting to a sudden or identifiable physiological change in the normal functioning of the body (Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 200 CLR 286 at 298).
This decision was upheld by a single judge of the Federal Court but overturned by the Full Court, which found that the Tribunal had been in error to equate injury with sudden or identifiable physiological change. It held that there was no requirement that a diagnosis or medically ascertained cause be identified before an injury could be found to have occurred.
The High Court set aside this decision, deciding that Mr May had suffered neither a disease nor an injury (other than a disease) under the Act. Feeling unwell was insufficient, since the nature and incidents of the physiological [or psychiatric] change had not been established. The majority (French CJ, Kiefel, Nettle and Gordon JJ) set out the position as follows:
47 … as the Full Court correctly held, "suddenness" is not necessary for there to be an "injury" in the primary sense. A physiological change might be "sudden and ascertainable". A physiological change might be "dramatic". The employee's condition might be a "disturbance of the normal physiological state". That an "injury" in the primary sense can arise, and can be described, in a variety of ways does not mean that "suddenness" is irrelevant. As the Full Court said, "suddenness" is often useful where there is a need to distinguish a physiological change from the natural progress of an underlying (and in one sense, closely related) disease (as occurred in Zickar v MGH Plastic Industries Pty Ltd and Kennedy Cleaning). But it is the physiological change – the nature and incidents of that change – that remains central.
48 That an "injury" in the primary sense can arise, and be described, in a variety of ways was recognised by Gleeson CJ and Kirby J in Kennedy Cleaning when their Honours stated:
"[C]onsideration [must] be given to the precise evidence, on a fact by fact basis, concerning the nature and incidents of the physiological change accepted at trial. If this evidence amounts, relevantly, to something that can be described as a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state, it may qualify for characterisation as an 'injury' in the primary sense of that word." (emphasis added)
49 It is against that background that the Act requires the tribunal of fact to give consideration to "the precise evidence, on a fact by fact basis, ... accepted at trial" and then to ask certain questions in order to determine whether an employee is suffering a "disease" or an "injury (other than a disease)".
50 First, does the evidence amount, relevantly, to something that can be described as an "ailment", being a physical or mental ailment, disorder, defect or morbid condition? Second, if so, was that state contributed to in a material degree by the employee's employment by the Commonwealth?
…
52 If there is not a "disease" within par (a) of the definition of "injury", the tribunal of fact next inquires whether there is an "injury (other than a disease)" within par (b). The third question is – does the evidence demonstrate the existence of a physical or mental "injury" (in the primary sense of that word)? Generally, that will be determined by asking whether the employee has suffered something that can be described as a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state. However, that judicial language is not to be construed or applied as if it were the words of a statute defining a necessary condition for the existence of an "injury (other than a disease)". The language of judgments should not "be applied literally to facts without further consideration of what is conveyed by the reasoning" in the cases from which it is derived, or without regard to the text and scheme of the Act.
…
Not sufficient for an employee merely to feel unwell
57 The Full Court concluded that the inquiry demanded by the statutory definition of "injury" was "whether the person has experienced a physiological change or disturbance of the normal physiological state (physical or mental) that can be said to be an alteration from the functioning of a healthy body or mind" ... To the extent that conclusion suggested that subjectively experienced symptoms, without an accompanying physiological or psychiatric change, are sufficient to provide a positive answer to the first or third questions set out above, that conclusion should be rejected.
58 That is because, first, it overlooks that the Act provided that the appellant was liable to compensate in respect of "an injury" and that the focus of the Act is on "an injury".
59 Second, it overlooks that the Act draws an important distinction between "disease" and "injury (other than a disease)" and that "disease" and "injury (other than a disease)" are part of different limbs of the definition of "injury" in s 4(1). Each limb deals with a separate basis for something being an "injury". That is the reason for separate questions.
60 Third, as seen earlier, the word "injury" in "injury (other than a disease)" has a different meaning from the defined term "injury" in s 4(1) – it means "injury" in its primary sense. That necessarily requires consideration of the "precise evidence, on a fact by fact basis, concerning the nature and incidents of the physiological change".
61 Put another way, the proper construction of the Act recognises that an employee may genuinely complain of being unwell, but, in the context of the "injury (other than a disease)" limb of the definition of "injury", unless that employee can satisfy the tribunal of fact that he or she has suffered an "injury" (in the primary sense of the word), s 14 of the Act will not be engaged.
62 The "nature and incidents of the physiological [or psychiatric] change" will determine whether there was an "injury (other than a disease)". The evidence to be adduced, of course, will vary from case to case and, where appropriate, may take into account common-sense inferences drawn from a sequence of events. To take an extreme example, the dismemberment of a limb involves a physiological change as a matter of common sense. But there must be more than an assertion by an employee that he or she feels unwell.
(References omitted, bold emphasis added.)
May has been interpreted (though, it might be said, not consistently) to mean that conditions which are manifested by subjectively-experienced symptoms but which are not accompanied by an identifiable or diagnosable physiological or psychiatric change in an employee’s body cannot be considered an injury under the Act. Thus in Comcare v Stefaniak [2020] FCA 560 Thawley J found that the applicant’s pain symptoms which arose during employment, but for which a biological cause could not be identified, did not arise from an ailment (i.e. an injury) and could therefore not constitute an aggravation of an ailment pursuant to s 5B. Similarly, in Williamson and Comcare [2019] AATA 4774 Deputy President Pascoe, citing May, held that subjectively experienced symptoms, which may be experienced at work without an accompanying physiological diagnosis, are insufficient to meet the requirements of the Act. However, not all recent decisions trend in this direction: see for example Priestley and Comcare [2019] AATA 5456.
It was common ground between the parties in these proceedings that no physiological change can be identified in Ms Wuth which accounts for her headache condition. Prof Darveniza told the Tribunal that the condition can be ascertained by the history that Ms Wuth has provided, not by physiological change. Comcare submitted that her condition can be described as a collection of subjectively reported symptoms without an accompanying identifiable physiological change or disturbance, and that this places her condition squarely within the category which the High Court determined in May could not amount to an injury pursuant to the Act (at [57]).
This Tribunal accepts that contention. It is difficult to characterise the words of their Honours in any other way than as precluding such conditions from compensability. I reach this view, however, with some trepidation, for two reasons.
The first is that this conclusion throws into question a line of previously decided cases where the existence of symptoms, notwithstanding that there was no alteration of the underlying pathology, was found to amount to an injury for the purposes of the Act: this line includes Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; Commonwealth v Beattie [1981] FCA 88; Tippett v Australian Postal Corporation [1998] FCA 335; Mellor v Australian Postal Corporation [2009] FCA 504; Comcare v Reardon [2015] FCA 1166; Military Rehabilitation and Compensation Commission v Katterns [2017] FCA 641; Howard v Comcare [2019] FCA 1031; and (to a certain extent) Australian Postal Corporation v Lucas[1991] FCA 612. Similarly, in the Tribunal there is a line of decisions (some decided after May) where pain conditions of uncertain origin or diagnosis have been found to be ailments within the meaning of s 5B: Hopkins and Comcare [2016] AATA 742;Cosgrove-Kaye and Comcare [2019] AATA 1238.
The second basis for the Tribunal’s trepidation is that, in practical terms, a large number of physical and psychiatric conditions in the workers’ compensation jurisdiction which are presently taken to be compensable when they have their origins in employment would no longer be so categorised. This may be viewed by some as an affront to common sense. As counsel for Ms Wuth so succinctly put it, a person trying to argue at a medical conference that headaches do not exist because no specific “physiological change” has been identified would be laughed out of the room. One conspicuous casualty of this new approach could be psychiatric conditions, for which there is generally no physiological evidence.
Nonetheless, decisions such as Stefaniak in the Federal Court seem to indicate that this shift in approach has arrived. Accordingly, the Tribunal finds that Ms Wuth’s chronic daily headache condition does not constitute an injury for the purposes of s 14 of the Act.
Does Ms Wuth suffer from a permanent impairment?
In the event that I am wrong on the question of whether chronic daily headache constitutes an injury under the Act, and Ms Wuth does suffer a compensable injury of that kind, I will turn to consider whether she is entitled to compensation for permanent impairment or non-economic loss pursuant to ss 24 and 27 of the Act. Comcare contended that she is not so entitled, for two reasons. The first, quite simply, is that any impairment said to arise from her compensable injury is not permanent. The second is that, even if it is permanent, there is no evidence before the Tribunal that would permit it to determine the degree of permanent impairment arising from the injury pursuant to subs 24(5).
Unfortunately for Ms Wuth, on both these contentions I find for Comcare.
Is Ms Wuth’s impairment permanent?
As previously indicated, the Tribunal prefers the evidence of Prof Darveniza over that of Dr Mellick. The former gave evidence that Ms Wuth’s impairment could be given an assessment of 30%. Despite being asked to do so, Dr Mellick did not provide a whole person impairment assessment pursuant to s 24, for reasons which are not clear. It follows that Prof Darveniza’s uncontradicted evidence would provide a basis on which the Tribunal could adopt a whole person impairment assessment, if that evidence otherwise satisfied the requirements of s 24. However, on Prof Darveniza’s own evidence those requirements are not met.
Prof Darveniza considered that Ms Wuth’s chronic daily headaches with migrainous features condition was stable and permanent. He noted in his live evidence that she had tried botulinum toxin injections to treat the condition but without success. He then suggested that monoclonal antibody treatment, which had become available in Australia in the last six months, might still be helpful in treating her condition. He made an educated guess that treatment by monoclonal antibodies would provide a 30-35% chance of significant improvement in her condition. In her own evidence Ms Wuth confirmed that she had not attempted monoclonal antibody treatment but was awaiting her doctor’s advice on this option.
Comcare submitted:
…there is some reasonable rehabilitative treatment which exists for the alleged impairment whose permanence is under consideration, and the applicant has not undertaken all of it: Filla at [55]. That factual matrix indicates that the applicant’s claimed impairment is not permanent.
This submission must be accepted. Subsection 24(2) requires a decisionmaker to consider the likelihood of improvement in the employee’s condition in determining whether an impairment is permanent; that is, the more likely the condition is to improve, the less it can be considered permanent. In Martin v Australian Postal Corporation [1999] FCA 655 Burchett J, referring to the definition of permanent in s 4(1), noted:
There is also a definition of "permanent" which should be noted; it does not mean "to last for ever", but "likely to continue indefinitely".
The decisionmaker is also required to consider whether the employee has undertaken all reasonable rehabilitative treatment for the impairment. In Comcare v Filla [2002] FCAFC 61 the Full Federal Court made these observations on the role of the Tribunal in assessing the permanence of a condition and what reasonable rehabilitative treatment might ameliorate it (at [8], [10]-[12]):
8 However, the question of whether it was reasonable or unreasonable for the employee to refuse rotator cuff surgery in the context of her knowledge of the risks, the prospects of success, the possible adverse consequences and other relevant factors is not the question that is posed by s 24(2). The primary judge correctly stated the position in his reasons for judgment where his Honour said:
"It is my view that par 24(2)(c) of the SRCA raises in substance at least one and possibly two questions for Comcare (or, on a review by the AAT of a decision made by Comcare, the AAT): first, what, if any, reasonable rehabilitative treatment exists for the particular impairment whose permanence is under consideration; and, secondly, assuming that some reasonable rehabilitative treatment does exist for the particular impairment whose permanence is under consideration, has the employee undertaken all of it?"…
10 On remittal to the Tribunal, the question to be considered is: what, if any, reasonable rehabilitative treatment exists for the particular impairment, the permanence of which is under consideration, having regard to the circumstances touching on those aspects before it.
11 Whether the rotator cuff surgery is "reasonable rehabilitative treatment" is a question of fact that would have to take account of many factors, including the risk of failure and the possible extent of the benefit of the treatment, particularly when compared to the present position. Whether or not it was reasonable for the respondent to refuse to undertake rotator cuff surgery is quite a different question from whether, considering the prospects of success, risk of adverse consequences, pain, discomfort and inconvenience necessarily involved in the operation when compared with the measure of success that might possibly be achieved, and other factors, the rotator cuff surgery may fairly be described as "reasonable rehabilitative treatment".
12 Indeed, it may be that treatment which offers just a chance of restoring a person to her pre-injury condition is not properly to be described as "rehabilitative treatment". Where the prospect of "restoration" involves a not insignificant possibility of failure, it is a question whether such treatment is truly "rehabilitative treatment". The Shorter Oxford English Dictionary relevantly defines "rehabilitate" as: "To restore to a previous condition; to set up again in proper condition."
Treatment which offers an employee a 30-35% chance of overcoming her condition is treatment which, quite evidently, is reasonable for her to undertake, particularly where, as seems to be the case here, there is no risk associated with the treatment nor any reluctance on the part of the employee to undertake it. This is to be contrasted with treatment of, say, an experimental kind, or treatment with a very marginal or remote likelihood of success.
The emergence of monoclonal antibody treatment in the last year or so represents, in one sense, unfortunate timing for Ms Wuth; had her claim being considered by the Tribunal a year ago the treatment would probably not have represented a barrier to a finding that her condition was permanent. There is also no small irony in Comcare advancing the proposition that the existence of the treatment, and her failure to undertake it, denies her entitlement to compensation, since the proposition depends on Comcare abandoning the evidence of its own preferred witness. Dr Mellick’s evidence was that the treatment had a very low chance of assisting her. Had the Tribunal accepted that evidence it would have no difficulty in finding that she had undertaken all the reasonable rehabilitative treatment available to her. However, unlike Comcare, the Tribunal does not feel it has the luxury of picking and choosing which piece of evidence from which doctor best suits a particular thesis. Having preferred the evidence of Prof Darveniza as to the continuation of Ms Wuth’s condition, it must also, absent any compelling contrary reason, prefer his evidence with respect to the likely benefit of monoclonal antibodies.
Is there evidence of a satisfactory permanent impairment assessment under s 24(5)?
The process of assessing the degree of Ms Wuth’s permanent impairment resulting from her injury, pursuant to subsection 24(5), is no simple matter. As already indicated, I find that there is no applicable table in the Guide relating to her impairment, nor is an impairment rating provided for in AMA5. Accordingly, resort must be had to the clinical judgement method pursuant to Section 1.5 of AMA5.
However, the Federal Court in Wuth4 has prescribed the manner in which the Tribunal was to determine what assessment represented the appropriate clinical judgement. In its written submission Comcare (accurately, in my view) summarised the court’s prescribed approach as follows:
… a physician must use clinical judgment, comparing measurable impairment resulting from the unlisted condition with measurable impairment resulting from similar conditions with similar impairment of function in performing activities of daily living.
In other words, if the Tribunal is satisfied that neither guide provides a specific means by which the alleged impairment can be assessed, the Tribunal should consider evidence from doctors as to the degree of impairment suffered based on their clinical judgment, informed by considering the degree of impairment resulting from similar listed conditions in AMA5.
… it is not open to the Tribunal to undertake a clinical evaluation for itself without medical evidence on the comparison required.
There were several permanent impairment assessments purportedly undertaken by various doctors prior to the most recent Tribunal hearing, including by Drs Brown and Seneviratne and Prof Owen White, a neurologist. It is unnecessary to discuss these assessments at any length. They are unsatisfactory for a variety of reasons, and neither party pressed for the Tribunal to rely on any of them; certainly none of them complied with the approach prescribed by the Federal Court. As already indicated, Dr Mellick did not provide an assessment, which leaves only that of Prof Darveniza to consider.
In his report dated 2 December 2019, Prof Darveniza assessed Ms Wuth as having a whole person impairment of 30%. He was examined during the hearing about the methodology by which he arrived at this assessment. He described a five-stage scale he devised for this purpose, in which he placed Ms Wuth in the middle of the moderate band (20-40%), i.e. 30%. The relevant parts of that examination follow:
[Mr Grey] And what factors you used to assess the impairment as in the middle of the moderate range?---Yes. Well, I mean, it’s just - it’s a scale. Whole person impairments obviously range from nought to 100 per cent. This is a qualitative scale and there’s no qualitative scale for headache, you know, there’s only qualitative and so, I thought dividing it up into mild, very mild, mild moderate and severe and very severe was reasonable, with sort of, 10 to 20 per cent increases with those categories, you know and you end up with very mild, nought to 10 per cent, mild, 10 to 20, moderate, 20 to 40, severe, 60 to 80 and very severe, 80 to 100.
Did you consider whether or not there were scales under AMA 5 that might have provided some, you know, comparison or assistance?---Well, there is various scales in the AMA 5, all them of them again, subjective and they end up with using a scale very similar to mine, in terms of the range of impairment, you know.
Like chapter 13, for example, I think, yes?---Yes.
All right?---Exactly, yes.
So, I mean, this is a scale that is of your devise, is that right?---Yes, look most people find that AMA 5 scales that they use are very subjective and hard to apply to individual patients, you know and so, for that reason, they’ve been excluded by plenty of worker’s compensation et cetera, they’ve been excluded for use because of this and the very subjective nature of headaches.
…
[Mr Woulfe] … it’s the case, isn’t it, that you didn’t use any particular table in AMA 5 to write the - - -?---I mean, I’ve read the chapters and understand the gist of the chapters.
Yes?---But I didn’t actually use them, no.
No and you didn’t do a compare and contrast between the criteria in those tables and the measurable impairment in those tables with similar conditions with similar impairment of functioning, did you?---Well, I mean, no, I did in my mind, but it’s hard to apply something that’s qualitative to turn it into a quantitative (indistinct), you know….
You haven’t looked at a particular table and the measurable impairment that exists under that table and compare that with Ms Wuth’s circumstances, have you?---No, I didn’t. But having said that, I thought I was directed by the provisions. So, the tables were inappropriate anyway.
No and so, you haven’t essentially extrapolated from the guides, have you?---Not directly, but indirectly I have. I have a knowledge of the general gist of the chapter.
Yes, the general gist, but you haven’t isolated a particular table or tables?---No. No, I haven’t isolated, except for they end up with a range of impairments that I have is very similar.
Right, but you haven’t identified any particular table in that regard have you? No. But, no, we recorded the same sort of thing. How long do you have the headache? How severe they are? How does it affect the activities of daily living? Et cetera et cetera et cetera et cetera. It’s the same process that I’ve used.
And so to put it fairly you’ve come up with your own impairment evaluation system and applied that to Ms Wuth’s circumstances, is that correct? Correct.
(Emphasis added.)
With respect to Prof Darveniza’s assessment, Comcare made the following submission:
…AMA5 neither permits nor requires an expert to exercise “clinical judgment” based on their own impairment evaluation system. On the contrary, a “clinical judgment” comparison must be undertaken with other tables in AMA5: cf [Wuth4] at [5] to [6]; Exhibit 8 (ST77/290). Such an approach must be based on experience, training, skill, thoroughness in clinical evaluation, and ability to apply the AMA5 criteria as intended such as to enable an appropriate and reproducible assessment to be made of clinical impairment: [Wuth3] at [99].
In the present case, no expert has undertaken the comparison required by Section 1.5 of AMA5.
Before the Full Court, the applicant contended that the remitter to the Tribunal should be limited to a consideration of Tables 13-2 and 13-3 of AMA5. However, the applicant did not ask Dr Darveniza to undertake the relevant comparison under those tables.
In any event, Dr Darveniza purported to provide a whole person impairment assessment based on clinical judgment with his “long and extensive experience as a clinical neurologist”. But Dr Darveniza effectively “came up with” his own impairment evaluation system, and did not look at a particular table of AMA5 and the measurable impairment that existed under that table and compare that with the applicant’s circumstances: TS77.25-29; TS77.45-48.
In examination-in-chief, Dr Darveniza was asked whether there were any “scales” under AMA5 that might have provided some comparison or assistance. However, instead of identifying any particular table, Dr Darveniza said “there is various scales in the AMA5, all them of them again, subjective and they end up with using a scale very similar to mine, in terms of the range of impairment, you know”: TS73.45-74.02. Dr Darveniza was led to agree that what he said was like Chapter 13, for example: TS73.04. However, at no point did Dr Darveniza give evidence that he had actually undertaken the comparison required by the “clinical judgment” method in Section 1.5 of AMA5.
Given her earlier adherence to Tables 13-2 and 13-3 of AMA5, one would have assumed that the applicant would have asked Dr Darveniza whether the relevant comparison could be undertaken using Tables 13-2 and 13-3 of AMA5. However, the applicant did not do so. At its highest, Dr Darveniza has provided yet another “qualitative” assessment based on his own impairment evaluation system: TS77.18-20. And under cross-examination, Dr Darveniza stated that he only had knowledge of the “general gist” of “the Chapter” (whatever chapter that might be): TS77.31-33.
In all the circumstances, Dr Darveniza’s evidence falls short of the requirements of Section 1.5 of AMA5. Put simply, Dr Darveniza did not undertake the requisite comparison required by AMA5. Nor did he make a comparison, using appropriate tables, in such a way as to produce an “appropriate and reproducible assessment to be made of clinical impairment”: contra Section 1.5 of AMA5.
The Tribunal has approached the evidence of Prof Darveniza deferentially, conscious of his extensive experience and expertise, and being careful not to interpose its own interpretation of the evidence over that of the medical expert (the error into which the Tribunal in Wuth1 fell). Despite this, it feels compelled to accept the submissions made about that evidence by Comcare. Even on a generous view of the task he was undertaking, the Tribunal does not accept that Prof Darveniza has approached this task in the manner set out by the Federal Court and which was reflected in the instructions provided to the expert witnesses by the Tribunal.
The words of the Full Federal Court bear repeating. Perry J emphasised (Wuth3 at [99]) the nature of the task entailed by a doctor in undertaking clinical judgement:
Not only in this regard does Section 1.5 of the AMA5 suggest that physicians use clinical judgment to undertake the relevant comparisons, but immediately thereafter Section 1.5 of the AMA5 explains that:
The physician’s judgment, based upon experience, training, skill, thoroughness in clinical evaluation, and ability to provide the Guides criteria as intended, will enable an appropriate and reproducible assessment to be made of clinical impairment. Clinical judgment, combining both the “art” and “science” of medicine, constitutes the essence of medical practice.
(Emphasis added.)
Her Honour went on to cite with approval (at [100]) the process ordered by the court in Riley v Comcare [2011] AATA 674:
(i) having determined that there was no applicable Table for the applicant’s impairment, the Tribunal should have referred to the Principles of Assessment in Part 1 of the Guide;
(ii) those Principles provide that in the event that an employee's impairment is of a kind that cannot be assessed in accordance with the provisions of Part 1 of the Guide, the assessment is to be made under the edition of the AMA Guides;
(iii) the AMA Guides provide that “in situations where impairment ratings are not provided, the Guides suggest that physicians use clinical judgement comparing measurable impairment resulting from the unlisted condition to the measurable impairment resulting from similar conditions with similar impairment of function in performing activities of daily living”;
(iv) accordingly, if the tribunal is satisfied that neither guide provides a specific means by which the impairment can be assessed, the tribunal should consider evidence from doctors as to the degree of impairment suffered based on their clinical judgement (informed by considering the degree of impairment resulting from similar listed conditions in the relevant edition of the AMA Guides).
(Emphasis added.)
The principles enunciated above were reflected in the remittal instructions given to the Tribunal by the court in Wuth4 – at [5]-[6]):
5 As a result of the manner in which the appeal was resolved, the parties agree that the Tribunal’s decision must be set aside and the matter remitted to the Tribunal for reconsideration according to law. As a part of that task, the parties agreed that it will be necessary for the Tribunal to afford the parties an opportunity to lead evidence and make submissions with respect to the “clinical judgment” assessment methodology in Section 1.5 of the 5th edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA5). The main point of difference between the parties is whether, as submitted by Ms Wuth, the Tribunal should afford the parties an opportunity to lead evidence and make submissions limited to whether Chapter 13 of the AMA5 (including Tables 13.2 and 13.3) enables the “clinical judgment” comparison to be undertaken, or whether, as submitted by Comcare, the Tribunal ought not to confine the parties to any particular chapter or tables of the AMA5.
6 We agree with Comcare’s submissions on this issue. Comcare’s suggested approach allows for the possibility that, if the expert evidence demonstrates that Tables 13.2 and 13.3 in Chapter 13 of the AMA5 do not enable a “clinical judgment” comparison, then as a matter of fairness the parties ought to be afforded the opportunity to lead expert evidence directed to whether any other tables or chapters of the AMA5 enable the “clinical judgment” comparison to be undertaken and, if so, the degree of impairment (if any) which should be ascribed to Ms Wuth’s impairment.
(Emphasis added.)
What is plainly evident from the court’s references to the provisions of AMA5 is that, despite the latitude conferred on medical experts to form a clinical judgement of an employee’s degree of permanent impairment, close regard is nonetheless to be had to the provisions of comparable assessment methodologies contained within AMA5. An expert is not, under this interpretation, at liberty to determine a wholly freestanding method of assessment, but must advert to, to the extent reasonably permitted by their terms, the methodological approaches evident within AMA5. The expert must consider the measurable impairment resulting from similar conditions with similar impairment of function in AMA5 in reaching his or her own assessment. Without such an approach, it is difficult to see how the goal of a reproducible assessment, referred to by the court, can be achieved.
Tables 13.2 and 13.3 of AMA5 in Chapter 13 – dealing with the rating of cerebral impairments – would appear to be of some relevance in such an exercise. Before the Federal Court the present parties made different submissions as to the reliance that should be placed on those tables in the instructions provided to the medical experts who would give evidence before the Tribunal; however, it seems clear that it was within the contemplation of the court and the parties that the provisions of those tables should at least be considered. It is also apparent that the court considered that the Tribunal on remittal would receive evidence and submissions with respect to the appropriate “clinical judgement” assessment methodology (Wuth4 at [5]) arising from the use of Section 1.5.
It is difficult to construe the evidence given by Prof Darveniza as a persuasive exposition of the assessment methodology he used in arriving at an assessment of 30%. He certainly considered Chapter 13, and various scales in the chapters, but it is not clear which chapters he was referring to other than Chapter 13. He told the Tribunal that he understood the gist of the chapters but agreed that he had not looked at a particular table and the measurable impairment that exists under that table and compare[d] that with Ms Wuth’s circumstances. He took this approach, he said, in part because the tables were inappropriate anyway. With respect, this appears to be a departure from the comparative approach, using the AMA5 tables as points of reference, foreshadowed by the Federal Court’s decision.
Prof Darveniza made the (quite valid) observation that it is difficult to view a qualitative condition (headaches) in quantitative (percentage) terms – essentially, that an apples-and-oranges comparison is being demanded. Nonetheless, the use of an arbitrary quantitative scale in response – only loosely referable to established measures or benchmarks, as seemed to be his approach – may well lead to widely divergent outcomes in assessing the same impairment. The Tribunal notes that the assessments made of Ms Wuth’s condition by various doctors ranged from 15% in the case of Dr Seneviratne to 50% in the case of Dr Brown. It is not clear whether Prof Darveniza’s assessment had any greater rigour or validity than those of the other physicians.
Counsel for Ms Wuth submitted that:
In fact, the Full Court did not make it compulsory to rely upon anything in AMA 5, if the clinical judgment of the practitioner was that there was nothing useful to be gleaned from it in relation to chronic migrainous headaches, apart from the general methodology that any experienced practitioner might get also from other sources, including treating many hundreds of clinical cases.
Counsel further submitted that AMA5 should be regarded as no more than a helpful adjunct to the making of a clinical judgement.
I accept that it was open to Prof Darveniza ultimately to discard the methodologies set out in AMA5 if they provided nothing useful in arriving at his clinical judgement, but I do not accept that he demonstrated, in his report or his evidence, the logical process by which he reached that conclusion. It was incumbent on him, I think, to analyse and weigh up the usefulness of the AMA5 criteria before setting them to one side, but there was very little before the Tribunal revealing that this is what occurred, and if so, how.
If the Tribunal does not have before it an assessment of the degree of whole person impairment which satisfies the provisions of s 24, as elucidated by the Federal Court, it cannot make an award of compensation: Beezley v Repatriation Commission (2015) 150 ALD 11 at [68]. There is no assessment before the Tribunal meeting that standard. Accordingly, on this basis too Ms Wuth must fail.
APPLICATION OF S 53
At a very late stage in these proceedings, Comcare submitted that Ms Wuth’s claim (which I take to mean, her claim for a work-related injury pursuant to s 14) is not compliant with the provisions of s 53, and as such is not covered by the provisions of the Act.
Section 53 provides:
(1) This Act does not apply in relation to an employee unless notice in writing of the injury is given to the relevant authority:
(a)as soon as practicable after the employee becomes aware of the injury; or
(b)if the employee dies without having become so aware or before it is practicable to serve such a notice – as soon as practicable after the employee’s death…
(3) Where:
(a)a notice purporting to be a notice referred to in this section has been given to the relevant authority;
(b)the notice, as regards the time of giving the notice or otherwise, failed to comply with the requirements of this section; and
(c)the relevant authority would not, by reason of the failure, be prejudiced if the notice were treated as a sufficient notice, or the failure resulted from the death, or absence from Australia, of a person, from ignorance, from a mistake or from any other reasonable cause;
the notice shall be taken to have been given under this section.
Comcare contended in support of this submission that the evidence establishes that Ms Wuth was aware of the role her employment played in the development of a headache condition in early 2007, that she did not give written notice of the condition until April 2010 and that, in consequence, Comcare has been prejudiced in that Ms Wuth was not examined at the time her alleged injury arose, evidence was not taken contemporaneously from witnesses and the opportunity for early treatment and rehabilitation was lost.
The consequence of a finding that s 53 applies to a claimed condition is that the condition cannot be considered an injury for the purposes of the Act.
The Tribunal notes the extraordinary circumstances in which this submission is advanced. As far as it can tell, s 53 has not previously been relied upon at any stage in a process which began more than a decade ago. Indeed, Comcare accepted in a consent decision dated September 2012 that Ms Wuth suffered from a work-related headache condition. Aspects of her claims for compensation have been before the Federal Court twice and the Tribunal twice and it is only now, towards the very end of the second proceeding in the Tribunal, that the issue has been raised. It is far from apparent what it was that constrained Comcare from advancing this argument previously.
There is nothing at law which prevents Comcare, as respondent to an injured worker’s claim, from raising a relevant statutory bar to that claim at any stage in the proceedings. However, the Tribunal has a duty to observe procedural fairness. The issue of s 53 was not pleaded in Comcare’s Statement of Facts, Issues and Contentions, nor adverted to explicitly during the hearing. As such, the opportunity to take evidence on matters relevant to this submission (for example, matters relevant to the considerations in s 53(3)(c)) was lost.
Accordingly, the Tribunal declines to consider the submission of Comcare with respect to s 53, on the basis that to do so would perpetrate considerable procedural unfairness on the applicant.
THE CLAIM IN APPLICATION 2018/4238
Having determined that Ms Wuth’s condition of chronic daily headache does not constitute an injury under the Act, it follows that she is not entitled to compensation pursuant to s 19. Such compensation is expressed to be payable to an employee who is incapacitated for work as a result of an injury (s 19(1)). It is therefore unnecessary for the Tribunal to consider her claim related to the calculation of NWE in Application 2018/4238.
For completeness, however, it is worth recording in summary form the Tribunal’s reasons for rejecting Comcare’s submissions on the calculation of NWE in s 8.
First, I find – as did the Tribunal in Wuth1 at [22] – that Ms Wuth was working at least 36.75 hours per week by February 2007. That is the clear effect of her evidence. Comcare’s claim to the contrary is not assisted by the fact that the Department “lost” the access records demonstrating when she arrived at and left the workplace in the early part of 2007. The original Tribunal found her to be a witness of truth, and I make a finding on the same terms.
Comcare submits that the proper enquiry to be made in relation to the calculation of NWE under s 8(1) is the number of hours for which Ms Wuth was actually being paid (i.e. 29.4), as opposed to the number of hours that she worked (at least 36.75). However, it appears that this question was comprehensively settled by the single judge in Wuth2 and by the Full Court in Wuth3. In the former, Rares J said at [25]-[26]:
25.… the only applicable provisions in the SRC Act on which to calculate Ms Wuth’s normal weekly earnings were those in ss 8(1) and 9(1). Those provisions referred not to the hours in the relevant period for which she was paid in money, but to the hours that she actually worked. The fact that Ms Wuth was content to take consideration for her labour in the form of leave (time off in lieu) for the additional hours that she worked did not mean that the statutory calculation of her normal weekly earnings could be performed by only using the 29.4 hours for which she received monetary consideration particularly in circumstances where she also received consideration in the form of TOIL.
26.The NH figure in s 8(1) applies to facts, not hypotheses. The only relevant fact that the Tribunal needed in order to ascertain the NH value in s 8(1) was the actual average number of, namely, more than 36.75, hours a week that Ms Wuth worked in the relevant two week period. In her notice of cross-appeal Ms Wuth only sought a finding that the NH figure be 36.75 hours per week based on the Tribunal’s finding that in fact she worked in excess of that time during each of the two weeks in the relevant period. Accordingly, that figure should be used as the NH value in calculating her normal weekly earnings under s 8(1).
Similarly, in the Full Court, Flick J said at [16], [21]:
Concurrence is expressed with the conclusion of the primary Judge that the “calculation required by s 8(1) did not use, or require the use of, the agreed hours of employment”:[2017] FCA 433 at [16], (2017) 156 ALD at 567…
During the “relevant period”, which was commonly accepted as being the two weeks prior to 27 February 2007, Ms Wuth worked more than 36.75 hours per week, rather than just the agreed 29.4 hours per week. The primary Judge was correct in concluding that the Tribunal erred in not having regard to the fact that she worked no less than 36.75 hours per week during that period.
Perry J said at [78]-[80]:
It was not in issue that TOIL constitutes paid days off for working extra hours over the [29.4] hours that it was agreed Ms Wuth would work. As such, TOIL was earned for hours that Ms Wuth in fact worked, and was not paid in advance. As counsel for Ms Wuth submitted, by working extra hours, Ms Wuth earned time off with pay for those hours. There was, in Ms Wuth’s submission, no warrant for saying that she ought not be compensated for the loss of TOIL under the beneficial scheme created by the SRC Act. Thus, in Ms Wuth’s submission, the extra hours worked by her beyond those agreed counted as hours worked for the purposes of calculating NWE under s 8(1) of the SRC Act…
Comcare, however, submitted that, properly construed, the reference in s 8(1) of the SRC Act to the average number of hours worked was a reference to the average number of hours worked by the employee for which she or he was paid. In support of this construction, Comcare relied upon a number of contextual considerations.
(1) First, the formula in s 8(1) of the SRC Act is used to calculate NWE for the purposes of the periodic calculation under s 19 of the SRC Act. NWE in other words was said to be the “index” by reference to which the amount of compensation is calculated. In Comcare’s submission, given that this is the function of calculating NWE, it would make no sense to include hours in the component “NH” where the employee had no entitlement to remuneration, referring by analogy to the calculation of overtime.
(2) Secondly, Comcare relied upon s 8(5) of the SRC Act as supporting its construction. It submitted that this provision provided an “escape clause” in circumstances where calculating NWE by reference to the preceding two weeks before the injury “would not fairly represent the weekly rate at which the employee was being paid in respect of his or her employment before the injury...”. In particular, the focus in subs (5) on the weekly rate “being paid” was, in Comcare’s submission, a further reason for construing “NH” in s 8(1) as a reference to paid hours of work.
The narrow construction of NWE in s 8 of the SRC Act for which Comcare contends should not be accepted.
It must be noted that neither court had before it (in contrast to this Tribunal) an explicit submission with respect to the operation of s 8(5). However, all three of the cited judgements make reference to s 8(5), and it seems obvious that the effect of the section was within the contemplation of their Honours as they reached their decisions. In my assessment, it is fair to infer from the reasoning displayed above that they would similarly have rejected a submission of Comcare, had it been advanced, that s 8(5) would have disentitled Ms Wuth to impairment payments based on the hours she actually worked in the relevant period before her injury. I come to this view because Comcare’s submission before me on s 8(5) again depended on the premise that the period before Christmas 2006 was more representative of the hours she was working than the first two months of 2007, whereas it is implicit in the decisions of their Honours that it was not.
CONCLUSION
The reviewable decisions dated 2 July 2014 and 27 July 2018 are affirmed.
I certify that the preceding 119 (one hundred and nineteen) paragraphs are a true copy of the reasons for the decision herein of Deputy President Gary Humphries AO.
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Associate
Dated: 3 September 2020
Date(s) of hearing: 17-18 February 2020 Date final submissions received: 28 April 2020 Counsel for Ms Wuth: L Grey Solicitor for Ms Wuth: Gabbedy Milson Lee Counsel for Comcare: P Woulfe Solicitor for Comcare: Comcare
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