FEDERAL COURT OF AUSTRALIA

Brackenreg v Comcare [2010] FCA 724

THE COURT ORDERS THAT:

1.                  The appellant have leave to amend the grounds of appeal by adding as ground 2.6 the following:

The learned Senior Member erred in law in proceeding on an erroneous view of the law of causation in workers’ compensation, to find that the temporo-mandibular joint dysfunction condition resulted from the injury, but that the psychiatric disorder, gastric condition and headaches (on the evidence caused in part at least by the temporo-mandibular joint dysfunction condition) did not so result.

2.                  The application by way of appeal is dismissed.

3.                  The appellant pay to the respondent its costs of the application.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

1                     This is an application by way of appeal on a question of law under s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth).  It concerns the appellant’s claimed entitlement to medical and like expenses in respect of a variety of conditions or symptoms.  The background is complex.

BACKGROUND

2                     The appellant suffered a compensable injury or injuries when involved in a motor car accident on her way to work on 7 March 1984 (the car accident).  She sought treatment at the Royal Darwin Hospital.  She is recorded there as having complained of pain in her neck, her back, and her right shoulder.

3                     She then claimed compensation under the Compensation (Commonwealth Government Employees) Act 1971 (Cth) (the 1971 Act).  She described her injuries as whiplash, sprained shoulder and broken teeth.  She was paid compensation both for incapacity and for medical expenses.  It appears the respondent identified her injury as “musculo-ligamentous neck injury”, and accepted liability on that basis.

4                     The appellant did not recover well from the injuries sustained in the car accident.  She received compensation under the 1971 Act and then under the Safety Rehabilitation and Compensation Act 1988 (Cth) (the 1988 Act) for ongoing incapacity and her medical expenses.  Along the time path, in April 1987 she was retired from her employment on medical grounds under the Public Service Act 1922 (Cth).

5                     In 1990 the issue arose as to whether the appellant was still suffering the effects of the car accident at all.  Ultimately, on 17 February 1993 the respondent determined that the appellant was no longer suffering from the effects of the car accident; any ongoing symptoms she was experiencing were attributable to some other cause.  It also determined that she was capable of undertaking employment which was reasonably available to her.  That decision was affirmed on review by the Administrative Appeals Tribunal (the Tribunal) on 23 November 1993.  However, its decision was set aside by this Court: Brackenreg v Comcare Australia (1995) 56 FCR 335.  On its subsequent review, the Tribunal by agreement restored the appellant’s entitlement to compensation.  Subsequently, on 6 December 1995, the respondent determined that the appellant’s ongoing entitlement to weekly payments for incapacity from injuries sustained in the car accident be redeemed pursuant to s 137 of the 1988 Act by payment of a lump sum.

6                     The question of her ongoing entitlement to compensation by way of medical and like expenses as a result of injuries sustained in the car accident has remained an issue.  It has been the subject of a number of determinations.

7                     Relevantly, for the present appeal, on 23 June 2003, the respondent again decided that she no longer suffered from the effects of the compensable injury sustained in the car accident.  The respondent said it would no longer be liable for any medical expenses under s 16 of the 1988 Act.  It also said that, for the same reason, it would no longer be liable for the expense of any household services under s 29 of the 1988 Act.  That decision was affirmed on internal review on 29 September 2003.

8                     Also, on 9 March 2004, the respondent rejected a claim by the appellant for travel and accommodation expenses to visit a doctor in Sydney, for medical expenses, and for household assistance in respect of the condition of syringomyelia.  The appellant claimed that condition resulted from the car accident.

9                     The Tribunal on review affirmed both those decisions on 15 November 2005: Brackenreg v Comcare [2005] AATA 1121.

10                  On an appeal to this Court, the appellant and the respondent agreed that the appeal be withdrawn on the condition that the respondent would:

(1)               review again its decisions of 29 September 2003 and 9 March 2004; and

(2)               review the claims by the appellant that she suffered from some 17 medical conditions or symptoms (excluding the compensable injury as accepted by Comcare, namely musculo-ligamentous neck injury).

11                  The appellant on 9 October 2006 identified those conditions or symptoms as follows:

(1)               neck pain associated with activity;

(2)               aching in both arms and legs

(3)               headaches associated with activity;

(4)               “pain in my jaw caused by dental treatment for the fractured teeth and also associated with crunching my jaw when in pain”;

(5)               face pain from TMJ [temporo-mandibular joint dysfunction];

(6)               ongoing dental problems;

(7)               hand pain in both hands associated with neck pain (but not usually at the same time);

(8)               back pain associated with activity or from tenseness brought on by pain;

(9)               leg pain exacerbated by tiredness and neck pain;

(10)           mouth ulcers associated with dental treatment;

(11)           skin itchiness associated with consumption of pain killers and Naprosyn;

(12)           stomach pain/ulcers from consumption of Naprosyn and consumption of pain killers;

(13)           Syrinx resulting in breathing and swelling problems – laryngeal spasms;

(14)           itchy eyes probably due to medication;

(15)           weight gain probably due to medication;

(16)           underactive thyroid; and

(17)           depression/psychological/psychiatric problems.

12                  The respondent duly made determinations with respect to those conditions or symptoms or most of them.  On 15 October 2007, it rejected the claims for compensation in respect of the conditions or symptoms of degeneration of the cervical spine; lower back pain; lower leg pain; syrinx/syringomyelia; mouth ulcers; and itchy eyes.  On 16 October 2007, it rejected claims in respect of intermittent bouts of gastritis and stomach ulcers; weight gain; itchy eyes; skin itchiness and mouth ulcers.  On 22 January 2008, it rejected the claim in respect of adjustment reaction with mixed emotional features (the psychiatric condition).  On 17 November 2008, it rejected claims in respect of temporo-mandibular joint dysfunction and the requirement for the appellant to wear a mouth splint (the TJD condition).

13                  That description of the conditions the subject of those decisions does not directly correspond with the list set out in [11] above.  In the course of submissions, nothing appeared to turn on those differences.  No question of the jurisdiction of the Tribunal arose before the Tribunal or on this Appeal.  Nor does anything appear to turn on any apparent overlap between symptoms which might be attributable to the accepted musculo-ligamentous neck strain sustained in the car accident, apparently excluded from further consideration, by the agreement referred to in [10] above and other ongoing symptoms claimed to be suffered by the appellant.  As appears below, the respondent did further consider if that injury continued to result in symptoms and to the need for ongoing medical expenses or household assistance. 

THE DECISIONS REVIEWED BY THE BOARD

14                  The four decisions referred to in [12] were reviewed together by the Tribunal.  It identified eight issues raised by those review applications as follows:

Issue 1:Has Ms Brackenreg recovered from the compensable injury?

Issue 2:Is Comcare liable to Ms Brackenreg’s “degeneration of the cervical spine” (including at C3/4, C5/6 and C6/7)?

Issue 3:Is Comcare liable for a “syrinx condition”?

Issue 4:Is Comcare liable for “headaches”?

Issue 5:Is Comcare liable for Ms Brackenreg’s gastritis condition?

Issue 6:Is Comcare liable for Ms Brackenreg’s psychiatric condition?

Issue 7:Is Comcare liable for “temporo-mandibular joint dysfunction”?

Issue 8:Is Comcare liable to pay medical expenses for an occlusal mouth splint?

15                  There is no submission that those issues were not appropriate ones to address.  The reference to “compensable injury” in Issue 1 is that as accepted in 1984 by the respondent, namely the musculo-ligamentous neck injury.  There is, however, a contention that they were not comprehensive of the issues raised.  That contention is considered below.

16                  The Tribunal by decision of 23 October 2009, answered Issues 1 to 6 in the negative, and so on each of those review applications (arising from the decisions of 9 January 2007 or 15 October 2007, 15 March 2007 or 16 October 2007, and 22 October 2007 or 22 January 2008), it affirmed the decision of the respondent.

17                  The Tribunal answered Issues 7 and 8 affirmatively.  On that review application (arising from the decision of 23 June 2008 or 17 November 2008), it set aside that decision and substituted a decision that the respondent is liable to pay compensation to the appellant for her “tempo-romandibular” (sic, temporo-mandibular) joint dysfunction, and under s 16 of the 1988 Act for the cost of an occlusal splint.  There is no appeal from that decision.

18                  This appeal is from the decisions and orders of the Tribunal referred to in [16] above.

THE TRIBUNAL’S REASONS

19                  In reaching its decisions, the Tribunal rejected the respondent’s claim that the car accident was minor.  It also rejected its contention that the Tribunal should adopt a “blanket” adverse view as to the appellant’s credit.  The Tribunal noted that, since a fall from a horse in 1991, she accepted that she has an unreliable memory.  It said she had limited ability to recall details and the sequences of events.  It said it gained little assistance from her oral evidence because it was not confident of her ability to recall relevant events or symptoms.  However, it remarked that there was ample medical evidence provided a sound basis for conclusions to be drawn.

20                  As to Issue 1, the Tribunal reviewed the medical history and opinions of various specialists and general practitioners up to 2004.  Then it summarised the medical evidence most supportive of the appellant continuing to suffer from a musculo-ligamentous neck strain: that of her general practitioner Dr Chong Wah, who had treated her since 1987.  It noted that Dr Chong Wah had not mentioned the other trauma since the car accident: “several other motor vehicle accidents and multiple falls from horses”, including in 1991 when she fractured her skull.  Dr Chong Wah had not apparently considered whether any of those events had caused or were contributing to her ongoing symptoms.  It preferred the specialist medical evidence which, it said, “overwhelmingly leads to the conclusion that [the appellant] recovered from the 1984 accident some time ago”, and that the conclusion is “inescapable” that she recovered from the musculo-ligamentous neck strain within a couple of years of the car accident.

21                  As to Issue 2, there was clear radiological evidence that the appellant had cervical degenerative disc disease.  It first became apparent radiologically in 1991.  There was a conflict of expert medical evidence as to whether the car accident was causally related to it.  The Tribunal preferred the opinion of a particular medical specialist that it was not, having regard to there being no radiological appearance of degeneration before 1991, to the degeneration being at more than one level, and to the fact of a number of subsequent motor vehicle and horse riding accidents suffered by the appellant.  It concluded that it is more likely than not that the degenerative changes in her neck from 1991 were simply age-related.  In the context of its reasons, it may be appropriate to say age-related, perhaps compounded by one or more of the traumatic events after the car accident.

22                  As to Issue 3, again there was clear radiological evidence that the appellant had a syrinx in her cervical spine, first discovered on an MRI scan performed on 13 September 1990.  The preponderance of medical evidence was that it was asymptomatic.  It had changed little, if at all, after that time.  It is a condition which may be congenital or traumatic.  If it was traumatically caused, the trauma would need to be quite substantial.  There was some medical evidence that the trauma from the car accident was not sufficiently substantial.  There was evidence of a number of subsequent traumatic incidents.  The Tribunal was “quite satisfied” that the car accident was not responsible for the syrinx.

23                  As to Issue 4, although no decision of the respondent specifically rejected the appellant’s claim for compensation in respect of headaches, the parties before the Tribunal agreed that it had jurisdiction to determine her entitlement to compensation arising from her headaches.  The Tribunal considered the medical history and opinion on the topic.  It did not accept her evidence that there was a “certain definable, subtle difference between headaches that she had before and after the [car] accident”.  It did not think she could give reliable evidence about when her headaches commenced.  Clearly, she had headaches for which she sought hospital treatment before the car accident.  Certain medical evidence, including one of her general practitioners, thought that her headaches ought not to be attributed to the car accident.  The Tribunal noted that, because that general practitioner was in the best position to know her symptoms before and after the car accident, his opinions should carry some weight.  The Tribunal said that there was no persuasive evidence to suggest a link between the appellant’s headaches and the car accident, and further that any such link would now be difficult to draw in the light of the intervening traumatic events.  It added that, as she had (as it found) recovered from the musculo-ligamentous neck strain within a relatively short time, the case for any association between ongoing headaches and that compensable injury was weakened.  It was not satisfied that there was any causal relationship between the car accident and the headaches.

24                  As to Issue 5, the appellant was first diagnosed with stomach ulcers from about 1997.  By 2008, after treatment, she had no evidence of ongoing gastritis or upper intestinal abnormality.  The Tribunal accepted her gastritis was related to her use of Naprosyn and other non-steroidal anti-inflammatory drugs (NSAIDs).  She claimed she was prescribed and took NSAIDs for her compensable injury.  The Tribunal reviewed the medical evidence.  It noted that the appellant was first prescribed Naprosyn in the 1990s and developed gastritis within a few years.  Because it found that she had recovered from her musculo-ligamentous neck strain before the long term use of NSAIDs commenced, it was not satisfied that her treatment by NSAIDs, leading to her gastric problems, was provided in relation to any compensable condition.

25                  As to Issue 6, the appellant claimed that she had developed psychiatric problems shortly after the car accident, associated with her sense that treatment for her compensable injury was not working, together with the doctors not believing her when she claimed that her physical problems were not improving.  She had been discharged from her employment in 1987 on grounds that included depression and an hysterical conversion state.  There was other medical evidence that in and after 1988 she suffered a psychiatric disorder.  There was then a range of medical opinion about whether she reliably reported her symptoms and her physical restrictions, and about whether she had any psychiatric disorder.  The Tribunal referred to that evidence.

26                  In September 2008, Dr Nothling reviewed some 50 medical and psychiatric reports, clinical records and some 11 other reports mostly from psychologists, all about the appellant.  He also took an extensive history from her.  He diagnosed her as having an “anxiety disorder not otherwise specified” before the car accident, which had continued thereafter at fluctuating levels, depending on what stressors she experienced.  He did not consider any aspect of her psychiatric impairment could be causally related to the car accident, except perhaps for a temporary exacerbation of her underlying anxiety disorder.  He drew attention to a history of episodes prior to the car accident when the appellant also reported symptoms consistent with depression and anxiety and received treatment.

27                  Since early 2008, another psychiatrist Dr McLaren had been treating the appellant.  He diagnosed her as suffering an “adjustment disorder with depressed mood”, common in cases of chronic pain, with a separate anxiety condition which “might warrant a diagnosis on its own”.  He also thought the appellant suffered from chronic pain, due to nerve injuries associated with neck pathology.  His conclusions were based on accepting that the appellant’s history of her symptoms was accurate, including continued pain related to the car accident.

28                  The Tribunal observed that the contest at the hearing was between those two views.  It preferred the evidence of Dr Nothling, who had had the benefit of access to all her medical and psychiatric reports and clinical records, to that of Dr McLaren, who had seen her more frequently but had not examined all that material.  The Tribunal noted particular elements of the appellant’s medical history which Dr Nothling had placed weight on.

29                  It concluded at [110] and [111] of its reasons:

The conclusion as I see it is unavoidable: [the appellant] is not suffering, and has not suffered, any psychiatric impairment that can be attributed to the 1984 accident.  The circumstances of that accident may well have exacerbated some symptoms in an already vulnerable personality.  However, I accept that the temporary exacerbation of those symptoms does not satisfy the definition of “disease” or “injury” in either the 1971 or the 1988 Acts.

For these reasons, I am satisfied that the requisite causal connection between psychiatric injury and employment has not been made out.  Therefore, her employment did not contribute to [the appellant’s] psychiatric condition, however described.

30                  As to Issues 7 and 8, because there is no appeal from the Tribunal’s decision favourable to the appellant, it is not necessary to refer to the Tribunal’s views in any detail.  The Tribunal noted that, as a result of the car accident, she fractured some of her teeth and sought dental treatment promptly when consequential joint dysfunction was diagnosed; that her condition of temporo-mandibular joint dysfunction had been diagnosed during the 1980s; and that dental specialists connected that condition to the car accident.  Comcare had previously accepted claims for expenses for dental treatment in the 1990s.  The preponderance of dental evidence showed her ongoing problems were still a consequence of the car accident.  Consequently, the Tribunal concluded that the appellant was entitled to compensation in respect of TJD condition.  To avoid any suggestion of oversight, I indicate that the term TJD condition is used in these reasons to encompass other facial and dental damage suffered as a result of the car accident.

THE GROUNDS OF APPEAL

31                  The notice of appeal asserts the following questions of law arising from the Tribunal’s reasons (omitting one which was not pursued):

2.1               Whether, the respondent or the appellant has the legal onus before the Tribunal.

…

2.3        Whether, for the purposes of sections 14 and 16 of the Act the payment of compensation for injuries other than those specifically referred to in an initial determination of liability amounts to a redefinition by the respondent of the injury upon which it based its acceptance of liability.

2.4               Whether the Tribunal was, in determining the appellant’s entitlement to compensation, required to consider evidence of any other injury that was not specifically referred to in the initial admission of liability by the respondent.

2.5               Failure to take a relevant consideration into account, namely that Comcare paid for medical; dental and psychiatric treatments without any formal acceptance of liability.  S 61 SRC Act Comcare by the paying of accounts for the various conditions and pharmaceuticals had accepted liability for the various conditions.

32                  At the conclusion of the hearing, the appellant sought leave to add a further ground of appeal as follows:

The learned Senior Member erred in law in proceeding on an erroneous view of the law of causation in workers’ compensation, to find that the temporo-mandibular joint dysfunction condition resulted from the injury, but that the psychiatric disorder, gastric condition and headaches (on the evidence caused in part at least by the temporo-mandibular joint dysfunction condition) did not so result.

33                  The asserted errors in 2.3 and 2.5 clearly overlap; they were addressed together by counsel for the appellant.

34                  Those two matters were based upon Comcare having accepted liability for medical and like expenses in the past incurred in respect of psychological and psychiatric treatment and household help expenses, and in respect of the syrinx condition and for degenerative changes in the cervical spine.

CONSIDERATION

35                  The matters raised by asserted errors 2.3 and 2.5 were said to flow from the way the Tribunal addressed what it called Issue 1.  In substance, it was argued that because Comcare had accepted liability for medical and like expenses in the past incurred in respect of symptoms other than those from the musculo-ligamentous neck strain, it had redefined the injury which it had accepted as compensable, and (by inference) it could no longer dispute liability to pay compensation in respect of those conditions.

36                  Before addressing that contention, I note that the submissions of the appellant did not suggest that the claimed entitlement of the appellant to compensation the subject of this appeal depended on whether the provisions of the 1971 Act or the 1988 Act were applied.  The transitional provisions in the 1988 Act provide that, in respect of injuries sustained before its commencement, compensation is payable under the 1988 Act as if it were payable under the 1971 Act: see in particular s 124 of the 1988 Act.

37                  Telstra Corporation Ltd v Hannaford (2006) 151 FCR 253 concerned an issue similar to that now raised by the appellant.  The employer had accepted liability to pay compensation to its employee in respect of the disease Ross River fever, and duly paid compensation.  Then it found out that the employee was not suffering from Ross River fever, but a different disease which was not work-related.  It decided it was not liable to pay any further compensation.  That decision was affirmed on review by the Tribunal.  On appeal, it was argued that the Tribunal could not affirm the decision because it did not formally have before it the initial decision to accept the claim, and so it could not go behind that initial decision by making a finding inconsistent with it.  That point was successful at first instance: Hannaford v Telstra Corporation Ltd (2005) 41 AAR 156, but that decision was reversed on appeal.  Heerey J (with whom Dowsett J agreed) said at [8] that the 1988 Act does not mean that a decision to accept a claim “permanently enshrines” every finding of fact on which a determination is made.  His Honour pointed out that Part VI of the 1988 Act specifically empowers the respondent to reconsider its earlier decisions, at any time, including any earlier finding of fact, and that the “modern, practical statutory scheme for the compensation of injured workers” allowed the Tribunal to revisit the finding whether the employee had suffered from Ross River fever as originally diagnosed.  Conti J (with whom both Heerey and Dowsett JJ generally agreed) after reviewing the statutory scheme in detail and earlier authorities on the issue, said at [57]:

In my opinion, it should be concluded, upon the correct construction of the SRC Act [the 1988 Act], and in particular of the provisions thereof upon which I have focused attention in these reasons, that the AAT is empowered to make subsequent findings of fact in relation to the circumstances the subject of decision-making under ss 16 and 19 of the SRC Act, and also under ss 21 and 27 of the SRC Act, where the determination of the first instance decision-maker (here of course Telstra) made under the auspices of s 14 of the SRC Act remains in operation in the sense that it has not been the subject of any inconsistent outcome in the context of a subsequent review by the AAT.  The statutory scheme allows for progressive and evolving decision-making giving effect to the provisions of ongoing review of relief or entitlements in the nature of course of workers compensation, being review which allows for adjustment or change in the light of events and circumstances which may subsequently happen.  The statutory scheme hence reflects a flexible scope for adjustment by way of decisions in the nature of awards to be made subsequently to the determination of s 14 liability, whether that determination be made in isolation, or in the context of decision-making concerning consequential relief that may be required in the light of evolving circumstances.  It is therefore a scheme which allows progressively for ongoing relief, and is thus not comparable of course with the process of curial resolution of the traditional common law entitlement of an injured employee for damages as a consequence of the negligent conduct of an employer.  The opening words of s 14(1) “[s]ubject to this Part” are consistent with the flexibility inherent in the ensuing codification of the various facets of compensation envisaged.

38                  Explicitly, his Honour concluded at [59]:

I would therefore conclude, contrary to the decision of the primary judge, that the AAT below was duly empowered, upon the true construction of the SRA [sic SRC] Act  and in the events which happened:

(i)         to make findings of fact that effectively undercut the necessary findings of fact made in the initial or original decision of Telstra under s 14 of the SRC Act to accept liability in respect of Mr Hannaford’s claim for compensation;

(ii)                to do so in circumstances where the AAT was undertaking its review of whether any compensation should be payable or further payable, for instance under ss 16 and 19 of the SRC Act, and/or under ss 21 and 27 of the SRC Act; and

(iii)               to do so in the circumstances further where Telstra’s s 14 decision remained in force to the extent that it had not been actually reversed, and had not been the subject of any adverse review per se by the AAT.

In short, it matters not, upon the true construction of the SRC Act, that there has never been any reconsideration of the determination of Telstra of 8 May 2002 whereby liability under s 14 thereof for Mr Hannaford’s claim originally made on 1 May 2002 had been accepted.

39                  In my judgment, that decision provides a clear answer to the appellant’s contention now under consideration.  If, as the appellant asserts, the respondent has, by accepting liability for payment of medical and like expenses which relate to conditions which extend beyond its initial acceptance of a musculo-ligamentous neck strain, extended or redefined the accepted injury, that did not preclude the respondent or the Tribunal in relation to the decisions now under review from considering whether that condition or those conditions resulted from the car accident.

40                  The decision of the Full Court in Lees v Comcare (1999) 29 AAR 350 does not detract from that conclusion.  As explained by Conti J in Hannaford at [35]-[37], that decision concerned a different question.  That was whether the Tribunal, when reviewing a decision of the respondent under s 14 about the nature of an injury, had power to make further decisions on matters the respondent had not by then determined as to the extent of permanent incapacity and non-economic loss.

41                  I would also reject the contention in the particular circumstances of this matter in any event.  That is because the respondent itself, with the appellant’s agreement recorded in [10] above, did in any event consider whether any of the constellation of conditions or symptoms asserted by the appellant to be compensable were attributable to the car accident in whole or in part.  One may categorise the four decisions on those questions which the Tribunal reviewed as primary decisions (because the issue had not previously been determined) or as reconsiderations under s 62 of the 1988 Act (because there had been some implicit determination about the extended nature of the injuries by the payment of certain medical and like expenses).  It does not matter.  The respondent was empowered to, and by its agreement with the applicant required to, make decisions on those questions.  The Tribunal was then required to review those decisions.  Each of them gave rise to the issues which the Tribunal addressed.  There was no error of law on its part in doing so.

42                  The appellant also made a subsidiary argument based on the Tribunal having said at [40], when considering Issue 1, that the evidence led to the view that the appellant recovered from the car accident some time ago.  It was argued that the Tribunal should have limited that conclusion to the musculo-ligamentous neck strain.  In the context of that part of the reasons of the Tribunal, it is clear that is what the Tribunal meant to say.  That was the content of the medical evidence being considered at the time.  It was the finding under the heading of Issue 1 in paras [38], [45], [46] and [48] of its reasons. The Tribunal’s conclusion is confined to that injury.  In [40] itself there is a reference to “soft tissue injury”.  In my judgment that contention must be rejected.

43                  There was also an attempt to demonstrate error on a question of law by the Tribunal in the way it reached its conclusion on Issue 2.  The Tribunal accepted that bulging of cervical discs was identified by MRI scans in 1991.  Because the trauma subsequent to the car accident occurred (it was put) “in the 1990s”, including the fall from a horse in 1991 when the appellant fractured her skull, it was argued that the Tribunal should have concluded that the disc bulging was not in existence at the time of the car accident and was caused by it, especially as there was some medical evidence that the observed disc bulging could reasonably be attributed to the car accident, and because such bulging should not have been attributed to degenerative changes in a person then only 32 years old.

44                  The contention, as then developed, asserts that the respondent had “failed to establish that the disc bulge was not in existence at the time of [the car accident] AND that the disc bulge was not caused by the trauma of” the car accident.

45                  In my judgment, that contention must fail.  In the first place, routinely there is no onus on the respondent to prove the negative of an assertion made by a claimant for compensation.  If a particular claim is made, the respondent is obliged to consider and determine it.  The respondent’s functions (and those of the Tribunal on review) under the 1988 Act are relevantly to make determinations on claims made under the 1988 Act.  The determinations required to be made by the respondent (and the Tribunal on review) in relation to the reviewable decisions were whether the appellant had suffered a compensable injury resulting in incapacity for work in the car accident (s 14), including the nature of the injury or injuries, and whether the particular medical and like treatment in respect of which the appellant had incurred a cost and claimed compensation was treatment “obtained in relation to” the injury (s 16).  That was what the agreement referred to in [10] above called for.  The Tribunal approached its task that way.  It identified what injuries the appellant sustained as a result of the car accident, and then it considered whether the claimed medical expenses were incurred in relation to treatment for any of those injuries.  Naturally, it did so by considering the appellant’s particular contentions.  It was not required to consider whether it was satisfied that the appellant’s degeneration of her cervical spine, in relation to which she has incurred medical expenses (which have not been paid by the respondent as compensation) was not at all attributable to the car accident; it was required to consider whether that cervical spinal degeneration was at least in part attributable to the car accident.  As was emphasised in McDonald v Director-General of Social Security (1984) 1 FCR 354(McDonald) by Woodward J at 357-358, it is important to clearly identify the question or questions which the review by the Tribunal throws up.  In respect of each of Issues 1 to 6 (and indeed in respect of Issues 7 and 8), the real issue was whether, as a result of the car accident, the appellant had suffered an injury or injuries which gave rise to the conditions or symptoms in relation to which the appellant had been given treatment, and so in relation to which she claimed compensation for those expenses.  I have used the expression “gave rise to” as encompassing causing or contributing to any of those conditions or symptoms, because the submissions did not assert any more refined causation question.

46                  So stated, if the Tribunal was in doubt about the answer to that question or those questions in relation to the particular conditions or symptoms, the claim in relation to them would not succeed.  As its reasons indicate, with somewhat different degrees of emphasis, the Tribunal broadly speaking did not really even have doubt about the answer to Issues 1 to 6, or indeed Issues 7 and 8.

47                  The second reason why that contention must fail is simply that it involves no error of law on the part of the Tribunal.  The Tribunal, in addressing in particular Issue 2 (although it said the question relating to Issue 1 was also relevant), noted that there was no evidence of degenerative changes in the cervical spine on the MRI taken in 1990, but that the first sign of annular bulging was observed in 1991.  It was mindful of the points made by the appellant.  Why should degenerative changes have occurred by 1991, in such a relatively young person?  What other causes for that degeneration might explain its appearance in 1991?  Why should the car accident not have played a part in its onset or progress?  It considered those questions.  It considered the medical evidence.  It has reached a decision on a question of fact that it is not probable that there was any connection between the car accident and that condition.  There was evidence on which it could reasonably have reached that view.  Consequently, I do not consider it is shown to have erred in law in doing so in any event.

48                  Ground 2.4 of the grounds of appeal, as developed in submissions, had two limbs.

49                  Firstly, it was argued that the Tribunal wrongly confined itself to determining whether the respondent could only be liable for medical and like expenses flowing from the originally accepted injury, that is the musculo-ligamentous neck strain.  I reject that contention, simply because I do not consider the Tribunal approached the review of the four decisions in that way.  The issues it identified demonstrate that only Issue 1 reflects such a narrow approach.  That was a starting point, not a finishing point.  Its outcome on Issues 7 and 8 also demonstrates that.  In my view, there is no demonstrated error of law on the part of the Tribunal.  In this context, the reference to cases such as Canute v Comcare (2005) 226 CLR 535 discussing the way in which the extent of impairment from an accepted injury should be measured when the impairment is increased by a second “injury” resulting from the initial injury, which itself falls into the definition of “impairment”, are not apposite.  To address the questions it identified, the Tribunal was mindful that certain of the conditions or symptoms in issue might indicate the sequelae of the musculo-ligamentous neck strain or might indicate a different injury, and be compensable on one or other of those bases.

50                  Secondly, the appellant argued that the Tribunal erred in failing to consider credible evidence (both medical and that of the appellant herself) of a causal link between the appellant’s other conditions and symptoms, including her headaches, gastric problems, and psychiatric condition in rejecting those claims.  That line of argument is also rejected.  It is rejected because the Tribunal is not shown to have failed to have regard to material evidence on those questions.  The premise for the asserted error of law is not made out.  In addition, in my view, the submissions demonstrate that the real nature of this attack upon the Tribunal’s decision and its reasons is a factual one only.  It raises no question of law.  It is really a complaint that the Tribunal should have preferred different evidence to that which, for the reasons it gave, it did prefer; and that the Tribunal should have placed greater weight on the appellant’s own evidence.

51                  The remaining question of law concerns the onus of proof, referred to as question 2.1 above.  It was put on the appellant’s behalf that “the onus of establishing a change of circumstances such that the [r]espondent is thereby relieved of making payments [of] weekly compensation rests upon the [r]espondent”.  By inference, that proposition is extended to relief from making payment for medical and like expenses.  Reliance was placed upon Commonwealth v Muratore (1978) 141 CLR 296 at 301-303 (Muratore) and Commonwealth v Borg [1991] FCA 710 (Borg).

52                  It is of course implicit in that contention that, at the time of the four determinations under review by the Tribunal, the respondent was routinely paying medical and like expenses in relation to conditions and symptoms the subject of those determinations.

53                  The Tribunal’s approach to Issue 1 was expressed in [38] of its reasons.  It said:

The question of whether [the appellant] has recovered from the compensable injury (which, it will be recalled, is “musculo-ligamentous neck injury”) is to be decided on the balance of probabilities, taking into account the principles set out in McDonald v Director-General of Social Security (1984) 1 FCR 354.

54                  In McDonald 1 FCR 354 Woodward J said at 357-358:

There is certainly no legal onus of proof arising from the fact that this is an “appeals” tribunal, because the AAT is required, in effect, by s. 43 of the AAT Act, to put itself in the position of the administrator in carrying out its review …

Obviously someone must set in motion the process which establishes the entitlement, and that will normally be done by or on behalf of the person concerned, but the Act does not create a legal onus to prove all relevant aspects of a claim of permanent incapacity … But I think it would be artificial to describe this situation in terms of the legal onus of proof.

…

It is true that facts may be peculiarly within the knowledge of a party to an issue, and a failure by that party to produce evidence as to those facts may lead to an unfavourable inference being drawn – but it is not helpful to categorise this common-sense approach to evidence as an example of an evidential onus of proof.  The same may be said of a case where a good deal of evidence pointing in one direction is before the Tribunal, and any intelligent observer could see that unless contrary material comes to light that is the way the decision is likely to go.  Putting such cases to one side there can be no evidential onus of proof in proceedings before the AAT unless the relevant legislation provides for it, and in the present case the Social Security Act 1947 (Cth) does not.

If the AAT finds itself in a state of uncertainty after considering all the available material, unable to decide a question of fact either way on the balance of probabilities, it will be necessary for it to analyse carefully the decision it is reviewing.  If, for example, it is a decision whether or not to cancel a pension in light of changed circumstances, then it has failed to achieve the statutory requirement of reaching a state of mind that the pension should be cancelled.  If, on the other hand, it is a decision to be made in the light of fresh evidence, whether or not the pension should ever have been granted in the first place, then it has failed to be satisfied that the person ever was permanently incapacitated for work.

There is equally no provision in either the 1971 Act or the 1988 Act explicitly imposing either a legal or an evidential onus of proof.  The observations of Jenkinson J in that case at 369 are to the same effect.

55                  As I have indicated above, in my view, the Tribunal has properly understood and applied those observations.

56                  The decisions to which the appellant referred do not indicate that that approach is incorrect.

57                  Muratore concerned an application for judicial review of a determination made under the 1971 Act that an employee was no longer entitled to compensation for partial incapacity because (as the 1971 Act then provided) he was able to earn an amount not less than his average weekly earnings before the compensable injury.  Under s 63(1)(b) of the 1971 Act (as then in force) judicial review amounted to a hearing de novo.  On judicial review, the judge of the Workers’ Compensation Commission of New South Wales ruled that the onus of proving the matters to support the original determination being varied was the employer, and that it had not established those matters.  That approach was upheld by the High Court.  It followed an earlier decision in Phillips v The Commonwealth (1964) 110 CLR 347.

58                  In Borg the Full Court (Sweeney, Jenkinson and Gray JJ) decided that approach applied to the Tribunal: see per Jenkinson J at pp 24-26.  His Honour referred to, and relied upon, the decision of the Full Court in McDonald in that regard.

59                  Importantly, therefore, the starting point is to recognise (as was pointed out by Woodward J in McDonald at 357) that, because the Tribunal stands in the shoes of the primary decision-maker, there is no legal onus of proof arising from the fact that it is conducting a review.  See also Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 at 419.

60                  Next, when the decision-maker (be it the respondent or the Tribunal) is considering an issue arising under the 1988 Act, there is strictly speaking no legal onus of proof.  But the practical position, as explained in McDonald, is that the nature of the determination to be made will indicate what the decision-maker should do if left in a state of uncertainty.  In Muratore, Jacobs J (with whom Gibbs CJ, Stephen and Aitkin JJ agreed) pointed out at 299 the Commonwealth conceded that in cases such as Phillips, where the Commonwealth sought a determination that a condition of total incapacity no longer existed, the Commonwealth bore the onus of establishing that fact.  In Muratore, that was held to be the nature of the issue, because the Commonwealth sought to show in reality that there was no longer physical incapacity for work producing an incapacity to earn wages (at 301-302).  It did not decide that, once liability in respect of an alleged injury had been accepted, the respondent necessarily had the onus of proving a change of circumstances if it was to determine any compensation related issue concerning that injury.  Neither the 1971 Act nor the 1988 Act so provided.  The same approach is evidenced in Borg, where there had been an accepted claim for weekly compensation arising from an injury, and then a challenged decision that there was from a particular time no ongoing incapacity which entitled the worker to further weekly payments: see per Jenkinson J at 23-26.  Heerey J in Comcare v Nichols [1999] FCA 209 at [18]-[21] summarised the correct position, in my view, accurately.

61                  I do not consider that the decision of Sackville J in Power v Comcare (1998) 89 FCR 514 assists the appellant.  That matter concerned the power of the Tribunal to determine whether a condition in respect of which compensation had been paid had in fact ever been causally related to his work: see at 526-527.  His Honour’s decision on that topic is then reflected in the Full Court in Hannaford as discussed above.  Similarly, the decision of Stone J in Lang v Comcare (2007) 94 ALD 141 focused relevantly on the jurisdiction of the Tribunal to have made the decision it did at [41]-[52], and then on the adequacy of the reasons for decision of the Tribunal at [53]-[56].  On the latter point, the appeal succeeded.  On the issue of onus of proof, her Honour at [24] made it clear that the practical onus which was identified by the nature of the issue the Tribunal was to consider was not altered by the mere fact of the respondent having paid some medical expenses in relation to a condition apparently beyond the accepted injury; that was equally consistent with an error on the respondent’s part.  Her Honour at [28]-[29] was also satisfied that, although the Tribunal in that case had not specifically referred to the onus of proof, it had in substance correctly applied the onus as explained in Borg.

62                  In this matter, I do not consider that the Tribunal has misconceived how it should approach the various questions which, by agreement, it was required to address to properly conduct its review.

63                  In each instance, the nature of the decision required the Tribunal to be affirmatively satisfied that the car accident had caused or contributed to the particular condition or symptoms in relation to which the appellant had sought treatment, and so had incurred expense.  That is so because that was the common starting point of the parties in accordance with their agreement as noted at [10] above.  The applicant asserted that the expenses incurred in respect of those conditions or symptoms were compensable, because they resulted from the car accident.  That issue had not previously been determined in any formal sense by the respondent.  If it had paid compensation by way of medical expenses in respect of them, as the respondent did in Lang, I would not regard that as giving rise to any formal admission of liability to pay compensation in respect of any further medical expenses incurred in respect of those conditions or symptoms.  It is also the case because the nature of the decision in each instance, determined independently of their agreement, required the respondent and on review the Tribunal to be positively satisfied that the condition or symptoms were a result of an injury or injuries sustained in the car accident, and so to be satisfied that the expenses in respect of that condition or those symptoms were compensable.

64                  In addition, as the Tribunal’s reasons indicate, with one qualification which is addressed in [66] below, the Tribunal in any event has reached an affirmative state of satisfaction as to the asserted relationship between the car accident and the relevant condition or symptoms.

65                  In respect of Issue 1, it described its conclusion on that issue as inescapable.  In respect of Issue 2, it concluded that “it is more likely than not” that the degeneration of the cervical spine, that is the cervical spondylosis, was age-related, and so was not related to the car accident.  In respect of Issue 3, it was “quite satisfied” that the syrinx condition is not related to the car accident.  The conclusion in respect of Issue 4 is more circumspect, but in my view clearly amounts to an affirmative finding that the headaches were not related to the car accident.  It noted the absence of any persuasive medical evidence to suggest such a link, and the intervening accidents, as well as the reasonably prompt recovery from the musculo-ligamentous neck strain which (it said) weakened any such association.  Its reasons do not suggest that it was left in doubt on the issue, so that if there was a legal or practical onus on the respondent to disprove such an association it would have reached an opposite conclusion.  In respect of Issue 5, it was positively satisfied that the treatment that caused the gastritis commenced after she had recovered from the injury which, it accepted, she had suffered in the car accident.

66                  It is necessary to deal with Issue 6 separately.  That is not because the Tribunal’s findings are in any sense equivocal.  It said it was an “unavoidable” conclusion that the appellant had not suffered any psychiatric condition that could be attributed to the car accident.  Its reasons at [110], as set out in [29] above, are however expressed somewhat unhappily, or “clumsily” to adopt the adverb used by counsel for the respondent.  However, I think the Tribunal’s meaning is quite clear: it is that, if the car accident exacerbated any symptoms attributable to a psychiatric condition or to a vulnerable personality, the exacerbation was temporary only and had ceased a considerable time ago.  Its firm conclusion is that any psychiatric condition or symptoms relate to it in respect of which the appellant had treatment for which she now claimed compensation for the expense incurred was or were unrelated to the car accident.

67                  For these reasons, I am not persuaded that the Tribunal has committed any error on a question of law as asserted in the notice of appeal.

68                  The proposed further ground of appeal involves the contention that the Tribunal had erred in law by not addressing three particular issues which it was required to address.  They were:

1.                  that the appellant’s gastritis was compensable because the NSAID’s medication was prescribed to relieve symptoms flowing from the now accepted TJD condition;

2.                  that the appellant developed or suffered worsening of her psychiatric condition by reason of pain from her now accepted TJD condition; and

3.                  that the appellant suffered headaches or increased headaches by reason of pain from her now accepted TJD condition.

69                  It is common ground that it is an error of law for the Tribunal to fail to deal with a submission seriously advanced by a party relevant to the issue before the Tribunal and worthy of consideration: Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 (Dranichnikov); Industry Research and Development Board v Bridgestone Australia Ltd (2004) 136 FCR 47; Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630.  In Dranichnikov, Gummow and Callinan JJ at [24] said it amounted to jurisdictional error to fail to address “a substantial, clearly articulated argument relying upon established facts.”  Where the focus is not upon jurisdictional error (cf s 476 of the Migration Act 1958 (Cth)), it is accepted by the respondent that the failure to address a substantial clearly articulated argument will amount to an error on a question of law on the part of the Tribunal.

70                  The respondent’s position is that:

1.                  the contentions were not “seriously put” before the Tribunal, so that the Tribunal did not need to consider them; and

2.                  the contentions were not, and are not, worthy of consideration.

In Applicant WAEE, the Full Court explained that deciding whether the Tribunal failed to consider an issue will in part depend on whether there was sufficient evidentiary substance to support the issue to expect it to have been addressed in the reasons.

71                  Counsel for the appellant, in a supplementary submission, referred to the material before the Tribunal and the transcript and written submissions before the Tribunal to show that each of the submissions was put to the Tribunal (and apparently overlooked by it) and had an evidentiary foundation.

72                  I have carefully considered all the references so identified.  The context for doing so is the appellant’s respective applications for review, her written Statement of Facts and Contentions to the Tribunal, and her Statement of Issues.  None of the relevant applications relating to gastritis and to her psychiatric condition or to her headaches are sufficiently specific to have identified the claims said to have been overlooked by the Tribunal.  Nor does the generally expressed Statement of Facts and Contentions.

73                  However, the Statement of Issues of 6 April 2009 asserts four primary injuries or conditions: musculo-ligamentous neck strain, damage to her cervical spine, development of a syrinx in her cervical spine and temporo-mandibular dysfunction with complications.  She also asserts that each of those injuries or conditions required her to take painkillers by reason of ongoing symptoms.  She also asserts that as a result of the “painkillers/non-steroidal anti-inflammatories” she was required to take to treat the three neck conditions and the dental conditions, she “developed gastritis and has been left with a vulnerability to developed (sic) gastritis as a result of the painkillers that she consumes”.

74                  That document also asserts that, as a result of those injuries or conditions, the appellant suffers from a psychiatric condition which she describes as “mainly Adjustment Disorder with Depressed Mood (arising from the pain that she has suffered from the other injuries)”.

75                  Further, that document asserts that as a result of the “three neck conditions and her dental condition she has suffered headaches since the date of the accident”.

76                  Counsel for the appellant in opening submissions to the Tribunal did not resile from those propositions.

77                  In my view, that Statement of Issues squarely sought to attribute to the car accident and the accepted TJD condition the taking of NSAIDs to relieve pain, and the level and persistence of pain from that condition so as to cause or contribute to her psychiatric condition, and her headaches.

78                  The respondent appears to have responded directly to those contentions.  In the “Respondent’s Statement of Position in Reply” of 14 April 2009, it raised eight questions (which the Tribunal appears largely to have paraphrased to identify the eight Issues it defined, although it refined the issue about headaches to an inquiry as to liability rather than to a jurisdictional issue on that symptom, as the parties – as it recorded – had agreed that no jurisdictional issue arose).  The respondent disputed any liability for each of the primary injuries or conditions, except for the musculo-ligamentous neck strain which (it said) had resolved during the 1980s.  It said the NSAIDs had been prescribed for conditions in respect of which no liability for compensation existed, including presumably the TJD condition.

79                  The appellant does not appear to have changed tack in relation to those claims in closing submissions.  Counsel for the appellant said that there was:

a great deal of interconnection between all of the injuries … as a sort of domino situation.  …  And some of those stressors that were experienced by the applicant are in respect of injuries for which liability is admitted, for instance, the teeth.  And she has given evidence about how difficult it’s been for her in relation to those teeth, with constant operations and pain and ulcers and so forth.  (Transcript, p 194)

He made specific reference to medical evidence that pain from the TJD and other conditions “caused the establishment of … the adjustment disorder” (Transcript, p 200).  He made specific reference to the claim that the anti-inflammatory drugs were “in relation to both the neck condition and the teeth” (Transcript, p 200).  And he made specific reference to the claim that the headaches arose from her neck pain and “the pain to the face from the difficulties she’s had with the dental treatment” (Transcript, p 201).

80                  Accordingly, I consider that each of those issues was explicitly raised and maintained before the Tribunal.  It was required to address them.

81                  Clearly, the Tribunal did not expressly address each of those claims.

82                  Its consideration of the claim for medical expenses in relation to gastritis focused on whether the prescription of NSAIDs was for the compensable muscular ligamentous neck strain, from which she had recovered before that medication was prescribed.  It did not accept that.  If, as it appears to have assessed or accepted, that medication was prescribed for the syrinx condition or for the cervical degeneration, neither of those conditions (it found) was compensable.  It did not expressly consider whether that medication was prescribed for pain resulting from the TJD condition.

83                  In relation to her psychiatric condition, the Tribunal noted that the appellant attributed that condition (amongst other things) to her physical condition not improving following the car accident.  Its consideration of this part of the claims also required an assessment of her reliability in reporting her symptoms from time to time, and an assessment of her underlying personality and her psychiatric state prior to the car accident.  It said that the answer to this claim depended in the main upon whether it preferred the evidence of Dr McLaren or Dr Nothling.  Its conclusion is set out at [29] above.  One point the Tribunal made, in preferring the views of Dr Nothling, was that Dr McLaren’s views were dependent on the appellant’s version of her symptoms being correct, including him accepting that she had continued pain from the car accident.  There is nothing in that part of its reasons which explicitly considered whether ongoing pain from the appellant’s TJD condition may have caused or contributed to her psychiatric condition beyond the “temporary exacerbation” referred to by the Tribunal.

84                  The Tribunal also did not explicitly consider whether ongoing pain from her TJD condition may have caused or contributed to her headaches.

85                  As counsel for the respondent submitted, it is necessary to consider whether in fact the Tribunal considered those contentions and rejected them, even though it did not expressly do so.  If there was little or no evidentiary basis for them, the Court may conclude that the Tribunal simply did not need to expressly refer to them.  Allied to that step, it is also necessary to consider whether those contentions were worthy of consideration: see Applicant WAEE at [46]-[47].

86                  As to the gastritis condition, there is no medical report which expressly indicates that NSAIDs were prescribed for the TJD condition.  None of the doctors who gave oral evidence were questioned about that.  There was a general question of Dr Nothling (to which he acceded) that, if the appellant had ongoing symptoms related to the car accident, it would still be contributing to her symptoms.  That is a question which carries the obvious answer within it.  There is no oral evidence that the appellant was prescribed NSAIDs for the TJD condition.  The appellant’s claim appears principally to have been that she was prescribed NSAIDs for her cervical spondylosis or her syrinx condition or, more generally, neck pain.  At one point in her evidence, she said she was taking painkillers for her teeth.  The Tribunal’s recital of the evidence discloses no other suggestions to that effect.

87                  I am not satisfied that the Tribunal failed to advert to the possibility that the appellant’s gastritis was caused by medication prescribed for pain from her TJD condition.  It may well have considered that contention.  It simply had no evidence that that had occurred.  All the medical evidence pointed to that medication having prescribed in respect of pain suffered for other conditions.  In addition, given the evidence or the lack of it on that critical step, I do not consider that the contention that the appellant suffered gastritis, due to consuming medication prescribed for pain suffered by reason of her TJD condition, is a substantial one which required express consideration by the Tribunal.  There was simply no cogent evidence to support the critical step that that medication was prescribed for treatment of pain flowing from that condition.

88                  In the case of the appellant’s psychiatric condition, the position is less obvious.  That is because the disorder was attributed, at least in part, to pain suffered by the appellant as a result of injuries or conditions caused by the car accident.  She did not, in her evidence, exclude from consideration pain attributed to a particular condition; nor did she specify a particular condition or conditions as the source of her pain in a way which indicated that the TJD condition was not one source of her pain.  Also, it may be noted, she did not attribute her psychiatric condition or its aggravation specifically to pain from her TJD condition.  The closing submissions on her behalf attributed the psychiatric condition to pain from any of her conditions.

89                  When reviewing the medical evidence, the Tribunal noted that Dr Nothling found no psychiatric impairment causally related to the car accident, other than a possible temporary exacerbation of her disorder, which it described as “temporary and not a true exacerbation”.  Dr Nothling’s report of 9 September 2008 says her pre-existing condition would have been only temporarily exacerbated by the car accident, and that she had suffered many subsequent stressors in her life.  It is not clear whether he regarded her as suffering from ongoing significant physically sourced pain from the car accident, or whether his views were formed on the basis that – irrespective of any such ongoing pain, her psychiatric disorder was not now related in any way to the car accident.  Dr McLaren’s findings included that the appellant suffered chronic pain due to nerve injuries associated with neck pathology; and that the neck pain was a significant stressor.  His report of 24 June 2008 makes it clear that the appellant reported significant ongoing or chronic pain, affecting her neck and arms and apparently her lower back and legs.  She is not noted as complaining to him of ongoing significant pain from her TJD condition.  Specifically, Dr McLaren said the car accident caused neck pain which contributes materially to her mental disorder.  It must, therefore, be that neck pain (and not pain from the TJD condition) which counsel on behalf of the appellant submitted was producing or contributing to her mental disorder.  There was no evidence to support any other proposition.  The submission was made to the Tribunal on her behalf to the following effect:

So in some respects Dr McLaren and Dr Nothling are pretty much the same.  Dr McLaren’s evidence was pretty much along the same lines, and that is, he says the pain arose from the accident and the condition, together with the temporomandibular joint dysfunction and teeth, with the stressors that caused the establishment of what he calls the adjustment disorder. (Transcript, p 200)

As I have noted, to the extent that there is reference to the TJD condition, there is no medical evidence to support the contention.

90                  In the light of that analysis of the relevant material, including consideration of the particular features of it referred to in submissions on this appeal, I am not prepared to conclude that the Tribunal overlooked the contention.  It is equally consistent with its reasons that it took the view that there was no medical evidence which directly supported it, and so it should be rejected.  In addition, for the same reason, I do not consider that the contention is properly described as a substantial one.

91                  I also do not consider that the Tribunal failed to consider the contention regarding headaches.  The first question in that regard was whether the appellant’s evidence as to their nature and onset was reliable.  The Tribunal was not satisfied that they came on after the car accident, or that their nature and severity after the car accident was different from their nature and severity before it.  It therefore did not accept the car accident played any part in them.  It was therefore unnecessary to consider specifically whether her headaches after the car accident were caused or aggravated by pain suffered from the TJD condition.

CONCLUSION

92                  Accordingly, whilst I would give leave to the appellant to amend the grounds of appeal to add the further ground set out at [32] above, because there is no prejudice to the respondent in doing so, I do not consider that the Tribunal erred on a matter of law in the way that that additional ground asserts.  Nor do I consider that the Tribunal erred on a matter of law asserted by the other grounds of appeal.

93                  The appeal is accordingly dismissed.  The appellant should pay to the respondent its costs of the appeal.

Associate: 

Dated:         13 July 2010