YNCJ and Comcare (Compensation)

Case [2025] ARTA 1293

YNCJ and Comcare (Compensation) [2025] ARTA 1293 (7 August 2025)

Applicant/s:  YNCJ

Respondent:  Comcare

Tribunal Number:                2023/8393, 2024/2705

Tribunal:General Member M. Carey

Place:Perth

Date:  7 August 2025

Decision:

Application 2023/8393

The Tribunal sets aside the decision under review and in substitution decides:

1.The applicant is entitled to compensation pursuant to section 24 of the Safety, Rehabilitation and Compensation Act 1988 for permanent impairment resulting from the injury, ‘major depressive disorder and generalised anxiety disorder’, assessed at 25 percent in accordance with Table 5.1 of the approved Comcare guide (Edition 3.0).

2.The applicant is entitled to compensation pursuant to section 27 of the SRC Act, in the amounts calculated in:

a.Part A, by reference to the assessed 25 percent impairment; and

b.Part B, by reference to assessed scores set out below and tallying to 13.2/15 or 88 percent in accordance with Part 1, Division 2 of the approved Comcare guide (Edition 3.0).

i.Pain: 0

ii.Suffering: 4

iii.Mobility: 4

iv.Social relationships: 3

v.Recreation and Leisure: 5

vi.Other Loss: 2

vii.Loss of Expectation of Life: 0

3.The respondent shall pay the applicant’s reasonable disbursements in preparation of the matter.

Application 2024/2705

1.The Tribunal sets aside the decision under review and in substitution decides:

a.The applicant is entitled to compensation pursuant to section 16 of the Safety, Rehabilitation and Compensation Act 1988 for the cost of fish and krill oil as medical treatment for the left knee injury that is reasonable to obtain in all the circumstances.

2.The respondent shall pay the applicant’s reasonable disbursements in preparation of the matter.

.......................[SGD]...................................

General Member M. Carey

Catchwords

INJURY – consequential injury – psychological injury causally related to primary physical injury arising out of employment – diagnosis of major depressive disorder and general anxiety disorder – whether one injury or two – role of diagnostic manual DSM-5-TR or similar – whether diagnosis determines injury – single but distinct injury identified by evidence of its origin, nature and progress.

IMPAIRMENT – psychological injury resulting in impairment likely to continue indefinitely – major depressive disorder and generalised anxiety disorder – degree of impairment assessed by reference to approved Guide Edition 3.0 at 25 percent.

NON-ECONOMIC LOSS – assessment in accordance with approved Guide Edition 3.0 – whether pain results from psychological injury – whether effects too remote – reduction of life expectancy – acknowledged risk of suicide – reduction of life expectancy measured in years – estimate of 10 years – whether risk of suicide can be treated as more likely than not – evidence insufficient to identify number of years of loss of expectation of life.

MEDICAL TREATMENT – fish and krill oil – used to moderate pain and stiffness of compensable left knee injury – whether medical treatment in relation injury – therapeutic treatment under direction of medical practitioner.

Legislation

Administrative Review Tribunal Act 2024
Safety Rehabilitation and Compensation Act 1988

Guide to the Assessment of the Degree of Permanent Impairment Edition 3.0

Cases

Canute v Comcare [2006] HCA 47; (2006) 226 CLR…

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AGLC
YNCJ and Comcare (Compensation) [2025] ARTA 1293
Case
[2025] ARTA 1293
Decision Date

CaseChat Overview and Summary

The case of YNCJ and Comcare (Compensation) involved a dispute over the classification and compensation of injuries sustained by the applicant, YNCJ, following a workplace incident. The primary issues before the court were the nature and classification of the injuries, the determination of psychological injury as a consequential injury, and the assessment of non-economic loss. Additionally, the court had to decide on the admissibility of fish and krill oil as therapeutic treatment for the compensable injuries.

The court began by addressing the classification of YNCJ's injuries. It examined whether her psychological injuries—diagnosed as major depressive disorder and generalised anxiety disorder—constituted one or two separate injuries, and whether the diagnostic manual DSM-5-TR or similar should determine the classification of the injury. The court concluded that the injuries were distinct but related, with the psychological injuries causally linked to the primary physical injury. The assessment of impairment due to these psychological injuries was conducted using the approved Guide Edition 3.0, determining a 25 percent impairment.

Regarding non-economic loss, the court assessed the pain resulting from the psychological injury, considering whether the effects were too remote. The court found a significant reduction in life expectancy due to the acknowledged risk of suicide, estimating this reduction at 10 years. However, the evidence was deemed insufficient to definitively quantify the years of loss of life expectancy.

The court also deliberated on the therapeutic treatment of fish and krill oil. It found that these supplements were used to moderate pain and stiffness of the compensable left knee injury and were considered therapeutic treatment under the direction of a medical practitioner.

Ultimately, the court ruled in favour of YNCJ, acknowledging the severity of her injuries and the necessity of the treatments in question. It affirmed the need for the supplements as a reasonable treatment option given her documented sensitivity to various medications. The court's decision highlighted the importance of considering the individual circumstances of the applicant and the therapeutic value of the treatments in question.

Orders

Orders of the court

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Background

Background to the litigation

The ‘maximum amount at the date of the assessment’ referred to in subsection 24(3) and set by subsection 24(9) of the SRC Act is $80,000. That amount and the amount of $15,000 for non-economic loss twice referred to in subsection 27(2) are subject to indexation in accordance with section 13 of the SRC Act.Background YNCJ first commenced employment with Services Australia on or about 19 November 2007. She worked on a full-time basis as a Service Officer (APS 3 Level) providing telephone service assistance to customers and, after gaining experience, she gave telephone assistance to other service providers. She was offered higher duties at the APS 4 level as a Program Support Officer in 2014 and by 30 May 2016 was promoted to a permanent position in that role. She delivered training for Service Officers and provided one-to-one support for Service Officers and handling customer complaints. On 6 December 2016 she suffered her left knee injury when sitting at a pneumatic lift chair at work it suddenly dropped down and she twisted the left knee. By early 2017 she lodged a compensation claim for her left knee injury. Liability to pay compensation was accepted by Comcare on 3 February 2017. On 7 February 2017, Mr Ian Skinner, her treating orthopaedic surgeon, performed a repair of the medial and lateral meniscal tears at the Fiona Stanley Hospital. The surgery was more extensive than originally planned, owing to the nature of the damage inspected upon the operation commencing. She was on crutches for some weeks following surgery and used a hinged knee brace for about six weeks. In the period shortly after surgery, her treating general practitioner reported the development of psychological distress. In the certificate of 15 March 2017, he noted YNCJ needed a ‘few sessions with Psychologist – Help with stress associated with the impact of the knee injury to the patient’s professional and personal life’. On 28 April 2017, Dr Mulyadi, the treating general practitioner, noted in his clinical notes that his patient was consideration ‘lodging an application for a secondary injury - emotional and mental stress manifested by anxiety, stress, difficulty sleeping. and low mood --- due to the slow pace of rehabilitation / recovery and the effect of the injury to her personal and professional life.’[10] [10] T31, 189. Dr Mulyadi was also concerned about the degree of pain experienced following surgery. In a letter of 26 May 2017, he noted his patient ‘has been feeling very frustrated and anxious as she doesn’t seem to be progressing well in terms of her mobility and pain. Walking for only a short duration and distance can instantly give her pain and tightness (felt on the ITB region as well as on suprapatellar region).’[11] He also noted that she had allergies (or at lease adverse reactions) to Augmentin, an anti-biotic, Morphine and Oxycodone, analgesics which caused severe dizziness, nausea and migraine.[11] T21, 152-153. On 25 May 2017, Mr Skinner, the treating orthopaedic surgeon, wrote to the Hammond Park Family Practice stating:[12][YNCJ] continues to have knee pain. She has low back pain. She has a number of symptoms secondary to her knee and back pain.[YNCJ] reports disturbance of sleep. As a result, headaches.[YNCJ] reports that she can walk around a shopping centre no more than 300 m and she suffers from pseudo-locking of her knee which can set her back for a week. She reports swelling of the knee.[YNCJ] has begun seeing a physiotherapist at Aubin Grove. Michael Oostryck has been seeing her. Michael believes that some of [YNCJ]’s pain arises from the patellofemoral joint/patellofemoral maltracking.Today we’ve had a long discussion. I’ve advised [YNCJ] that there is no doubt that she has mechanical problems and that these need to be treated. I have advised her that it is my view that her anxiety about her symptoms is compounding the pain she notes. I believe that it would be of benefit for [YNCJ] and to spend some time with an Occupational Therapist who specialises in pain management. This would be to give [YNCJ] some techniques to reduce level of anxiety. She volunteered that she did not want to use medication for this and, I was not considering it in any case.I think after the CT scan to quantify the patellofemoral maltracking it will be appropriate for the McConnell regime to be introduced. I advised [YNCJ] that the McConnell regime can be expected to increase her symptoms in the short term. We have a problem with analgesia in that [YNCJ] is unable to tolerate NSAIDs. She also has side effects to a number of analgesics. She has not had the Di-Gesic prescription filled as she is concerned about the possible side effect of suicidal ideation. She has proven quite sensitive to various analgesics. It may be necessary to consider an unusual analgesic for her.[12] T25, 158.

Evidence

Evidence Before The Court

On 28 April 2023, YNCJ made claims for lump sum compensation for permanent impairment and non-economic loss for the following conditions:[19](1) Left knee injury (meniscal tears), dated and signed 30 March 2023;(2) Chronic Pain Syndrome, dated and signed 4 April 2023; and(3) Major Depressive Disorder and Generalised Anxiety Disorder, dated and signed 11 April 2023.[19] T115, 591-658.Evidence The following documents were admitted into evidence:A1 Non-economic loss statement by YNCJ dated 12 May 2025A2 Joint report Dr Arief Mulyadi, treating general practitioner, and Mary Roberts, treating clinical psychologist, dated 30 October 2024A3 Report of Mary Roberts dated 5 May 2025A4 Report of Mary Roberts 15 May 2024A5 Report of Mary Roberts 22 May 2024A6 Fitness for duty report of Dr Olivia Chong, psychiatrist, dated 30 August 2021A7 Article by Stonehouse et al, ‘Krill oil improved osteoarthritic knee pain’ American Journal of Clinical Nutrition’ 2022A8 General Practitioner Progress Certificate 24 April 2025A9 Email dated 6 May 2025 from Comcare, confirming date range of its prior acceptance of liability for the costs of treatment by Fish Oil and Krill Oil R1 Supplementary report Dr Cohen 2 May 2024R2 Supplementary report Dr Cohen 23 Sep 2024R3 Supplementary report Dr Cohen 3 Apr 2025R4 Supplementary report Dr Hardisty 29 July 2024 together with attached article, Laslett et al, ‘Krill oil for knee osteoarthritis: a randomised clinical trial’.R5 Clinical notes upon which Dr Mulyadi and Ms Roberts were cross-examined, identified in Attachment A to this decision.YNCJ The applicant has provided extensive documentary evidence to a high standard for one unassisted by legal representation. She explained that such documentation did require much time to produce since the effect of her psychological injuries has caused her to slow down her mental processing, and that she was unable to give sustained attention to the production of such documents. She opened her case with a written statement. In addition, a statement dated 12 May 2025 regarding non-economic loss was admitted into evidence as Exhibit A1 but only to the extent that it contained statements of fact from personal knowledge. I have treated similar statements by the applicant that are throughout the Tribunal documents, but particularly the extensive statement of 2 November 2023 for the benefit of her re-examination by Associate Professor Hardisty, as part of her evidence but, again, only to the extent that it contained statements of fact from personal knowledge.[20][20] 2024/2705 T128, 662-698. For some years now her medical treatment consists of weekly counselling sessions of about one hour duration with Ms Mary Roberts and consultations with Dr Arief Mulyadi, her long standing general practitioner, approximately every five weeks. In addition, she has relied on a limited range of medications. She identified Melatonin, to assist with sleep; Magnesium; fish and krill oil for their anti-inflammatory properties; glucosamine; Fisiocrem, a topical pain reliever; and Voltaren Gel, a topical anti-inflammatory preparation.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Comcare’s submissions somewhat modified the position expressed in the reviewable decision. In his final supplementary report, Dr Hardisty did accept that ‘fish oil would be of value to [YNCJ] given her intolerance of anti-inflammatory medication.’ However, the value of krill oil was disputed based on the Laslet et all scientific paper that was produced by Dr Hardisty. Comcare urged the affirmation of the decision to deny both fish and krill oil relying on those arguments raised in its Statement of Facts Issue and Contentions on matter 2024/2705 dated 17 April 2025. That submission derived from the decisions in Re Aylett and Comcare [2001] AATA 739; Re Rope and Comcare [2018] AATA 42 (“Rope No. 3”) and the Clinical Framework for the Delivery of Health Services published by WorkSafe Victoria in conjunction with the Transport Accident Commission of Victoria (the Clinical Framework). The essential submission was that the claims treatment was not reasonable for YNCJ to obtain in the circumstances. It would only be reasonable, in Comcare’s submission, where the benefits are substantial and the cost is low, where the treatment’s effectiveness results in measurable benefits, it is of limited duration and is consistent with the principles set out in the Clinical Framework.Consideration From an early stage of the left knee injury there was evidence of her complaints to Mr Ian Skinner, an orthopaedic surgeon, who reported on 25 May 2017 that he had no doubts as to the mechanical problems of the left knee, with pseudo-locking and inflammation with pain, as well as YNCJ’s intolerance of NSAIDs and sensitivity to analgesics.[32] As early as 14 December 2017, Dr Phillip Meyerkort, a consultant occupational physician, noting YNCJ’s reported intolerance of prescribed medication, recommended various supplements that could be ‘utilised in a similar way to prescribed medications, however with less side effects’ and included fish oil among those supplements.[33][32] 2024/2705 T25.[33] 2024/2705 T50. I accept that YNCJ has an intolerance to a large range of prescription medications, and I rely on her self-reporting and the close and consistent review of her treating general practitioner, Dr Mulyadi. There have been recorded reactions to a wide range of differing medications and treatments and I accept that there is a genuine sensitivity to medication. I would not expect such a person, suffering from the multiple conditions affecting her left knee, chronic pain, anxiety and depression, to have to try all possible medications in exhaustive fashion. I do not say that as the adoption of some ‘patient autonomy’ principle, valuable as that might be, but on the acceptance of the evidence to sensitivity to the range of medications she has tried. I also accept there is some efficacy among sufferers of osteoarthritic symptoms (post-traumatic or otherwise) from fish oil in reducing inflammation, stiffness and pain which is beneficial and therapeutic for those sufferers with intolerance of NSAID medications. I accept the evidence that it is the Omega 3 polyunsaturated fatty acids that are the operative substances responsible for those benefits.