FEDERAL COURT OF AUSTRALIA

Howard v Comcare [2019] FCA 1031

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The decision of the Administrative Appeals Tribunal under review be set aside.

3.    The respondent is to pay the applicant’s costs as agreed or assessed.

4.    On or before 4pm on 16 July 2019, the parties are to file agreed minutes of order otherwise giving effect to these reasons or, in the absence of agreement, draft proposed minutes of order accompanied by submissions of no more than 3 pages in support of the draft proposed minutes of order.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

PERRY J:

1.    INTRODUCTION

1    The applicant, Ms Kerry Howard, seeks judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) given on 28 November 2017. By that decision, the Tribunal affirmed a decision by the respondent, Comcare, that the applicant no longer suffers from the effects of work related injuries sustained in 2006 (the 2006 injuries) and, as a consequence, the respondent is not liable to pay her compensation under s 16 or s 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act).

2    The application for review to this Court is apparently made under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) which provides for a so-called “appeal” on a question of law. As such, this Court has jurisdiction to interfere in the event that the applicant establishes that the Tribunal erred in law, but not to determine the merits of the Tribunal’s decision. In this regard, s 44 of the AAT Act is concerned to ensure that the merits of the case are dealt with by the Tribunal and not by the Court, reflecting a “distribution of function [which] is critical to the correct operation of the administrative review process”: Repatriation Commission v Owens (1996) 70 ALJR 904 at 904 (the Court (refusing special leave to appeal to the High Court of Australia)); cited in Haritos v Federal Commissioner of Taxation [2015] FCAFC 92; (2015) 233 FCR 315 (Haritos) at [133] (the Court).

3    Three issues are raised on the appeal. First, the applicant contends that the Tribunal misconstrued the term “injury” in the SRC Act (see amended notice of appeal, questions of law 1(a), (b), and (c)). Specifically, the applicant contends that the Tribunal’s finding at [37] of its reasons that the applicant “developed a chronic pain syndrome secondary to the injuries she suffered in the 2006 accident” cannot be reconciled with the conclusion that she no longer suffers from the effects of the 2006 injuries without attributing legal error to the Tribunal in the manner in which it construed “injury” for the purposes of the SRC Act. This issue turns upon whether the Tribunal’s finding that the applicant’s chronic pain syndrome was “secondary” should be construed, as the applicant submits, as an acceptance by the Tribunal that her chronic pain syndrome was consequential upon, in a causal sense, the primary injury sustained in the 2006 accident.

4    Secondly, if contrary to the applicant’s submissions, the Tribunal used the word “secondary” at [37] of its reasons in a purely chronological sense (as the respondent contends), the applicant contends that the Tribunal erred in failing to determine the question of whether the 2006 injuries caused the onset of the chronic pain condition, asking instead only whether her original 2006 injuries continued (substantially) unchanged.

5    Thirdly and in the further alternative, the applicant contends that the Tribunal failed to comply with the requirement to give reasons under s 43(2B) of the AAT Act in failing to make findings on material issues of fact.

6    In the event that the applicant succeeds on the first or second question, she sought orders setting aside the Tribunal’s decision and the reconsideration decision by Comcare under s 62 of the Act, and in lieu thereof substituting for the reconsideration decision, an order that Comcare’s decision dated 23 March 2015 that the applicant does not suffer the effects of her compensable injury be revoked. In the event that the applicant succeeds on the third question, she submitted that the matter should be remitted to the Tribunal for redetermination.

7    For the reasons given below, the appeal must be upheld on the first question of law. The remaining questions of law therefore do not arise.

2.    BACKGROUND

2.1    The 2006 injuries and acceptance of liability by Comcare

8    The applicant sustained injuries in the course of her employment with the Department of Health and Ageing (the Department) to her neck, right arm, and left thigh in a motor vehicle accident on her way to work on 30 March 2006 (the 2006 accident).

9    On 8 May 2006, the respondent accepted liability for the applicant’s injuries pursuant to s 14 of the Act and agreed to pay compensation for medical expenses and incapacity under ss 16 and 19 of the Act. Comcare described her injuries as a neck sprain and contusions to her “upper arm (left)”, “finger (left)”, and “hip and thigh (right)”. Subsequently Comcare advised the applicant that it had incorrectly described her accepted condition which should have included contusions to her “upper arm (right)” and not to her left upper arm (Tribunal’s reasons at [4]).

10    The applicant returned to full-time work by 24 June 2006, some 12 weeks after the 2006 accident, although she said that she suffered from continuing symptoms (Tribunal’s reasons at [15]). The applicant worked for the Department until April 2012 when her position was made redundant, and was self-employed at the time of the Tribunal’s decision.

2.2    Comcare’s determination in 2015 that the applicant was no longer entitled to compensation under the Act

11    On 23 March 2015, Comcare decided that the applicant no longer suffered from the effects of the 2006 injuries and determined that she was no longer entitled to compensation for medical expenses under s 16 or incapacity payments under s 19 of the Act (Tribunal’s reasons at [6]).

12    Following a request by the applicant for a reconsideration of that determination, on 17 June 2015 the respondent affirmed its decision given on 23 March 2015. On 24 September 2015, the applicant applied to the Tribunal for review of that decision under s 64 of the Act.

2.3    The Tribunal’s decision

2.3.1    The issues before the Tribunal

13    After setting out the background, the Tribunal identified the issues in the following passages:

12. … The issue in this review is whether Comcare is still liable to pay compensation to Ms Howard under s 16 or s 19. That depends on whether she continues to suffer the effects of the 2006 injuries. If she does, then:

•    Comcare is liable to pay compensation in respect of her reasonable medical expenses; and

•    (if she is incapacitated for work) Comcare is liable to pay compensation for that incapacity, the amount of which depends on:

•    the amount that she is able to earn in suitable employment;

•    the amount that she earns from her self-employment; and

•    her normal weekly earnings before the 2006 injuries.

If Ms Howard does not continue to suffer the effects of the 2006 injuries, then:

•    any medical treatment she obtains is not obtained “in relation to” her injuries, so Comcare is not liable under s 16; and

•    she is not incapacitated for work “as a result of” her injuries, so Comcare is not liable under s 19.

14    No issue is taken on the appeal with this statement of issues.

15    It can be inferred that the reference to the “2006 injuries” is a reference to the injuries for which Comcare accepted liability under s 14 of the Act as advised on 8 May 2006 and amended on 30 May 2006, namely, a neck sprain and contusions to her right upper arm, left finger, and right hip and thigh: see the Tribunal’s reasons at [4] and [6].

16    At the hearing, the applicant gave evidence that when she had the 2006 accident, she was no longer suffering any symptoms from a whiplash injury suffered in a motor vehicle accident in 2002 (the 2002 injury) (Tribunal’s reasons at [14]-[15]).

17    Before the Tribunal, the applicant alleged that:

… since the 2006 accident, she has experienced varying levels of pain, primarily around her upper neck and shoulder blades. She says that, although she experienced pain in the same areas, her “experience of the pain as a result of the injuries changed”. She says that she has also experienced numbness in her arms and a finger, along with a hardening of the nape of her neck, her upper back and shoulder blade.

(Tribunal’s reasons at [16])

18    The Tribunal accepted the applicant as a witness of truth and accordingly found at [18] on the balance of probabilities that:

(1)    the applicant was no longer suffering any symptoms from the 2002 accident when she had the 2006 accident;

(2)    the applicant has experienced varying levels of pain ever since the 2006 accident, primarily in her upper neck and shoulder blades; and

(3)    that pain causes her some level of incapacity.

19    As such, the Tribunal posed the “threshold question” as follows: “is her current condition a result of the 2006 injuries?” (Tribunal’s reasons at [18]).

2.3.2    The Tribunal’s view as to the differences in the medical opinions

20    I note that the Appeal Book did not contain the medical reports themselves or the transcript of evidence before the Tribunal save that the reports of Dr Paul dated 24 June 2016 and 5 August 2016 were received at the hearing as part of Part C of the Appeal Book, together with the letter of instructions from Comcare’s solicitors and a short extract from the transcript of Dr Paul’s evidence before the Tribunal. While the parties did not include all of the evidence before the Tribunal in the Appeal Book, I note that it would not have been open to the Court in any event to review afresh the medical evidence and draw its own conclusions about the weight to be given to that evidence. This is because (as earlier mentioned) this “appeal” is in substance an application for judicial review under the AAT Act and relief will lie only if the applicant establishes that the Tribunal’s decision is tainted by an error of law as opposed to a mere error of fact: see further Haritos especially at [192]-[202] which summarises the relevant principles. That said, the medical evidence, to the extent that it is before the Court, is relevant to construing the Tribunal’s reasons and it is fair to say that the arguments of both parties proceeded on that basis.

21    The Tribunal first noted at [13] of its reasons that “[t]here is much evidence before me about Ms Howard’s current condition, and its relationship to the 2006 injuries.” However, the Tribunal found at [19] that the medical experts “have different opinions about whether Ms Howard continues to suffer the effects of the 2006 injuries”, explaining that:

Generally speaking, Dr Obermeder and Dr Gorman say that she does; Dr Vecchio and Dr Paul say that she does not; Dr Le Leu’s position is more complicated.

22    The Tribunal then proceeded to consider the medical evidence, noting in particular the following aspects.

(1)    Dr Obermeder, the applicant’s general practitioner, reported in May 2009 that the applicant’s “ongoing neck and right upper arm problems are still part of the original injury”, adding that “[t]here has been no subsequent injury” (Tribunal’s reasons at [22]). In March 2010 she reported that the applicant had “improved to a point that barring any unexpected exacerbations and continued regular maintenance therapy she is as good as she is going to get” (Tribunal’s reasons at [23]). Finally, in March 2015, Dr Obermeder reported that she believed the applicant to be suffering from Regional Pain Syndrome, being an amplified musculoskeletal pain syndrome, the cause of which is unknown and which usually initially manifests near the site of a typically minor injury (Tribunal’s reasons at [25]).

(2)    Dr Gorman, a consultant general physician, pain management specialist and medical oncologist, diagnosed the applicant in August 2017 as suffering “bilateral cervical spinal and bilateral shoulder girdle pain which is widespread and has been present particularly since the motorcycle accident in 2006” (Tribunal’s reasons at [28]). He confirmed his view at the Tribunal hearing that the applicant’s current condition is “connected with the events of 2006” and said that “there is nothing unusual about patients displaying ongoing pain even though there [is] no organic pathology to support that” (ibid). He also agreed that, on the basis that the effects of the applicant’s injuries had continued from the 2006 accident to now, it was likely that those effects had arisen from the 2006 accident and not the 2002 accident (Tribunal’s reasons at [29]). However, the Tribunal considered that Dr Gorman’s evidence “raised some doubts about whether the effect of Ms Howard’s injuries had continued from the day of the 2006 accident until now” (Tribunal’s reasons at [30]). I consider this later in my reasons.

(3)    Dr Vecchio, a rheumatologist, on the other hand, reported in August 2014 that the applicant’s condition was medically inexplicable. He expressed the opinion (quoted by the Tribunal at [31]) that:

It is very difficult to medically explain, eight and a half years post injury, that the pains continue to be intrusive, and which continue to restrict activities of daily living and work application and, even more, require enormous numbers of unjustified and passive treatments.

…

I do not believe that there is any ongoing organic issue and there is no justified diagnosis. There are pains in the neck, right periscapular and shoulder regions and right forearm. I am are unable to formulate a specific diagnosis that may be applied eight years post contusion to these regions.

…

I accept that the injury would have caused transient soft tissue pain, perhaps lasting a few weeks. I am unable to explain why the pain continues eight years on. … [T]here is no likely reason why the original injury should be associated with ongoing pain.

The Tribunal said that Dr Vecchio confirmed these opinions at the hearing and said that soft tissue injuries such as those suffered by the applicant in 2006 should resolve within 6 to 12 weeks and at most, within 6 months. While Dr Vecchio would not speculate as to whether there had been an intervening event, he gave evidence that “it is not reasonable to link all the symptoms to the accident that occurred such a long time ago in the absence of severe or significant longstanding trauma that resulted in abnormal pathology” (Tribunal’s reasons at [31]). The Tribunal noted, however, that Dr Vecchio also considered that the applicant’s continuing symptoms were “unlikely to be related to the accident and [it is] more probable that there was an alternative cause of which there are various aspects of the human psyche that could be perpetuating the pain or causing the pain” (ibid).

(4)    Dr Paul, a consultant occupational physician, saw the applicant on 14 June 2016 and wrote reports on 24 June and 5 August 2016. The Tribunal at [32] of its reasons summarised Dr Paul’s report dated 24 June 2016 as saying “in his view, Ms Howard no longer suffers from the effects of the 2006 injuries.” The Tribunal said that “he does not think that there is anything ‘objective’ stopping Ms Howard from working, but that ‘the concept around coping and managing with pain … needs to be addressed’.” Dr Paul also reported that while the applicant had the physical capacity for full-time work, “it appears that her pain becomes worse when she faces increased stress. This may be due to a secondary psychological condition and the effects of her chronic pain condition” (emphasis added). He said, in a passage also quoted by the Tribunal at [32], that the applicant “appears to have gone on to develop a chronic pain syndrome secondary to the soft tissue injuries” (emphasis added) suffered by her in 2006, and that the 2006 injuries “would likely have resolved within three months”.

(5)    Dr Le Leu, an occupational physician, said in his report dated 22 February 2016 that:

It is more probable than not that her ongoing symptoms in the neck and right shoulder/upper arm – excluding impingement – result from the subject accident since they have reportedly been continuous since. The right and left arm symptoms are secondary to the neck.

The Tribunal found that at the hearing, Dr Le Leu initially confirmed the view that the applicant continues to suffer the effects of the 2006 injuries because “her symptoms have continued in the same pattern, and more or less the same level ever since” (Tribunal’s reasons at [33]). However, the Tribunal considered he “resiled somewhat from that position during the hearing”, explaining that it was Dr Le Leu’s understanding based on what Ms Howard had told him that she had not complained of the issues with pins and needles in her arms until years after the 2006 accident. The Tribunal records that in exchanges between counsel for Comcare and Dr Le Leu:

(a)    Dr Le Leu agreed that the applicant’s neck problems probably had some relationship back to the incident in 2006;

(b)    he agreed that her right shoulder problem (aside from the impingement syndrome) may also have some relationship to the incident in 2006 save that “[i]t would be hard to tell just how much is attributable”;

(c)    he agreed that the problems she has bilaterally with the impingement and areas below her upper arm and down into her hands are separate and usually relevant to a ruptured disk or impingement on the nerve within the neck, but there was no evidence of that here. As such, he accepted that it was not easy to relate the problems that the applicant was having in her lower right arm, hand, left and right shoulders to the 2006 accident and that he could not do it on the balance of probabilities; and

(d)    he noted that he had made a mistake in his report and should have reported that the applicant’s right and left arm symptoms were not secondary to the neck.

(Tribunal’s reasons at [34]).

2.3.3    The Tribunal’s findings

23    The Tribunal then turned to make further findings of fact, finding that some of the medical evidence was conflicting.

24    The Tribunal gave little weight only to the evidence of Dr Obermeder as she appeared to have no specific expertise (Tribunal’s reasons at [36]). It then turned to consider which medical evidence it preferred, finding that it put more weight on the evidence of Dr Vecchio and Dr Paul than upon the evidence of Dr Gorman and Dr Le Leu essentially for the reason that the views of Dr Gorman and Dr Le Leu were based upon the erroneous premise that the effects of the 2006 injuries had continued (substantially) unchanged since the 2006 accident. As the Tribunal explained at [36]:

•    Dr Gorman says that it is likely that Ms Howard continues to suffer the effects of the 2006 injuries. But, his view was based on the effects of those injuries having continued substantially unchanged since the 2006 accident. At the hearing, he explained that he had expected that there would have been a reduction in Ms Howard’s range of movement in the 18 months before he saw her (because she had stopped receiving regular osteopathy, massage and acupuncture treatment), yet there was an increase in her range of movement. This is relevant to the question of the efficacy of that treatment. But it also means that there must have been some change in Ms Howard’s condition over that period – that the effects of the 2006 injuries did not continue unchanged.

•    Dr Le Leu also says that it is likely that Ms Howard continues to suffer the effects of the 2006 injuries. His view was also based on the effects of those injuries having continued substantially unchanged since the 2006 accident. And, although he did not resile completely from that view, he did concede at the hearing that some of Ms Howard’s continuing symptoms could not be attributed to the 2006 accident. This, too, means that the effects of the 2006 injuries did not continue unchanged.

•    Ms Howard conceded, at the hearing, that her experience of the pain changed during the period since the 2006 accident, though she maintains that “[t]he injury itself and the areas that [she] experienced that pain didn’t really change”.

25    In a pivotal passage at [37] of its reasons, the Tribunal found that:

Having regard to the medical evidence, I make the following findings, on the balance of probabilities. Ms Howard suffered soft tissue injuries in the 2006 accident. The effects of those injuries resolved within a few months. She developed a chronic pain syndrome secondary to the injuries she suffered in the 2006 accident.

(emphasis added)

26    In making those findings, the Tribunal concluded at [38] that:

•    Dr Vecchio says that soft tissue injuries, like those that Ms Howard suffered in the 2006 accident, would have resolved within six months; Dr Paul says they would have resolved within three months.

•    Dr Coyle (who saw Ms Howard almost two years after the 2006 accident – by which time, I have found, the 2006 injuries had resolved) thought her condition was attributable to the 2006 accident, but thought it unlikely that the 2006 accident would have any permanent effects, and expected that her injuries would resolve.

•    None of the MRI or CT scans, or nerve conduction studies, has revealed any pathology attributable to the 2006 accident that could explain her current condition.

•    None of the medical experts suggested a mechanism by which the 2006 injuries could continue to cause Ms Howard’s current condition, although Dr Gorman says that people can display ongoing pain even though there is no organic pathology to explain it.

•    I have not made any finding about an intervening cause of Ms Howard’s current condition – something that might have happened since the 2006 accident to cause similar symptoms. I do not need to make such a finding, especially given that I have not found that the effects of the 2006 injuries continued substantially unchanged.

•    I have not made any finding that Ms Howard suffers from a psychological condition, noting that none of the medical experts has relevant expertise.

27    The Tribunal found as a result that the applicant did not continue to suffer the effects of her 2006 injuries and ceased to suffer those effects no later than 23 March 2015. The Tribunal also found that it did not therefore need to consider any further questions including as to the extent of her incapacity and quantum of compensation.

3.    DID THE TRIBUNAL PROCEED ON AN ERRONEOUS UNDERSTANDING OF AN “INJURY” UNDER THE ACT? (Q (1)(a), (b) and (c))

3.1    What is an “injury” under the Act?

28    Questions of law (1)(a), (b) and (c) are premised on the Tribunal having proceeded on the erroneous basis that an injury arising from an accepted primary injury could not constitute a compensable injury under the Act (as indeed does question of law (1)(d) raising a procedural fairness issue). It is necessary first, therefore, to consider the role of that concept under the Act and what is meant by an “injury” in that context.

29    Section 14 of the Act provides that the respondent is liable to pay compensation in accordance with the Act “in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment” (emphasis added). In particular, at all relevant times, s 19 of the Act required the respondent to pay compensation to an employee who is incapacitated for work “as a result of” an injury. Section 16 of the Act also requires the respondent to pay compensation in respect of medical treatment obtained “in relation to” an injury. As such, the concept of an “injury” is central to establishing liability under the Act.

30    At the time of the 2006 accident, section 4(1) of the Act provided that “injury” means:

(a)    a disease suffered by an employee; or

(b)    an injury (other than a disease) suffered by an employee, being 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), being an aggravation that arose out of, or in the course of, that employment;

but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment.

31    It is not submitted by any party that any part of the definition of an injury under the Act apart from subs (b) is relevant to the resolution of this appeal: see also the Tribunal’s reasons at [11]. (I note in this regard that the meaning of “injury” was amended by the insertion into the Act of ss 5A and 5B by the Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007 (Cth). However, by virtue of item 42 of Part 2 of Schedule 1 of the amending Act, the amended definitions apply only to injuries sustained by an employee on or after 12 April 2007 when the amending Act received Royal Assent. It is not suggested that those amendments have any relevance to the present case: respondent’s submissions dated 16 May 2018 at [5].)

32    The High Court considered the construction of an “injury” under the Act in Canute v Comcare [2006] HCA 47; (2006) 226 CLR 535 (Canute (HCA)). In that case, the Tribunal had treated an adjustment disorder with depression sustained by the appellant subsequently to an initial physical injury as one of a number of impairments “arising from the same incident, a physical impairment and a psychological impairment” (as quoted in Canute (HCA) at [23]). As such, the High Court held that the Tribunal had “treated the concept of ‘injury’ as co-extensive with the workplace incident which produced the impairments.” As the Tribunal found that the subsequent psychological impairment was less than a 10% increase in the degree of whole person impairment in respect of the back injury on the basis of which permanent injury compensation had already been awarded, the Tribunal determined that no further lump sum compensation was payable by virtue of s 25(4) of the Act.

33    The High Court found that the Tribunal’s approach was in error. It held first that the Act does not oblige Comcare to pay compensation in respect of an employee’s impairment. Rather, Comcare is liable to pay compensation in respect of “the injury” (Canute (HCA) at [10]). As such, the concept of “an injury” is of “pivotal importance in the structure of the Act” (Canute (HCA) at [8]). Secondly, it held that the term “injury” in the Act “is not used in the Act in the sense of ‘workplace accident’. The definition of ‘injury’ is expressed in terms of the resultant effect of an incident or ailment upon the employee’s body”: Canute (HCA) at [10] (the Court) (emphasis added). Thus, as Hill J helpfully explained at first instance in Canute v Comcare [2005] FCA 229; (2005) 40 AAR 327 (Canute (FCA)) (in a passage approved in Canute (HCA) at [25]):

38. … The fact that the two injuries were caused by a single event … is not a relevant question under the Act. The Act is concerned with injuries, not incidents.

34    The High Court held that the majority of the Full Court of the Federal Court had therefore erred in holding that the definition of “injury” should be limited to primary injuries and excluded consequential or secondary injuries. Specifically, the High Court held that:

34.    Reduced to its essentials, the conclusion of the Full Court majority depended upon the proposition that:

“the policy of [the Act] seems to require such an injury to be treated as an aspect of the impairment created by the initial injury.”

It is clear from the context that what was being referred to was what the majority described as a “consequential injury”, a notion supported by Comcare in terms of “primary” and “secondary” injuries. Comcare’s case depends upon confining the meaning of “injury” to exclude such “consequential injuries”. However, there is no foundation in the Act for any such distinction between “an injury” and a consequential or secondary injury. Neither of these qualifiers finds any expression in the Act. The Act speaks exclusively in terms of “an injury”.

35    It follows, as the applicant submits, that “[a] secondary injury is no less an ‘injury’ for the purposes of the [Act] then [sic] is its primary progenitor” (applicant’s submissions dated 27 February 2018 at [14]).

36    As is implicit in Canute (HCA), the Act is intended to provide for and accommodate the evolving nature of injuries. As Conti J held in Telstra Corporation Ltd v Hannaford [2006] FCAFC 87; (2006) 151 FCR 253 (Heerey and Dowsett JJ agreeing at [12] and [13] respectively):

57. … 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.

3.2    The parties’ submissions on Q 1(a), (b) and (c)

37    In line with the principles set out above, Comcare accepted that if an injury arises in the course of employment which itself causes a subsequent injury, then the second injury must also have arisen out of the employment and is therefore compensable under the Act. Comcare also accepted that if, as the applicant contends, the Tribunal in fact found that the applicant’s chronic pain syndrome was causally related to, or an effect or result of, the 2006 injuries, it would follow that the Tribunal had made an error of law in affirming Comcare’s decision. The respondent’s case, however, is that this is not what the Tribunal in fact found.

38    It is common ground between the parties that the Tribunal correctly expressed the relevant test at [12] and [18] of its reasons (quoted at [13] and [19] above), namely, whether the applicant’s chronic pain syndrome is a result of the 2006 injuries. However, while the test was correctly posed at this high degree of generality, the question remains whether the applicant has established that the Tribunal’s purported application of that test reveals an error of law.

39    The applicant’s appeal rests largely on the sense in which the Tribunal uses the word “secondary” at [37] of its reasons. She submits that the Tribunal made the following “explicit and unambiguous” findings:

(1)    as at 23 March 2015, when Comcare issued the “no present entitlement” determination and ever since, the applicant suffered pain in her neck and shoulders;

(2)    that pain was caused by chronic pain syndrome;

(3)    the chronic pain syndrome was “secondary” to the original 2006 injury to the neck and arms; and

(4)    there was no identified intervening cause.

(applicant’s submissions dated 27 February 2018 at [9])

40    As a result, the applicant contends that the Tribunal fell into error in misconstruing the definition of “injury” and the causal tests in ss 14, 19 and 16 by:

(a)    Restricting the definition of ‘injury’ to the original 2006 injury to the neck and arms and excluding the secondary chronic pain condition;

(b)    Restricting the causal tests in sections 14, 16 and 19 to the original 2006 injuries and excluding the secondary chronic pain condition.

26.    The Tribunal should have concluded that the 2006 injuries had caused the onset of the chronic pain condition which was still the operative cause of the ongoing incapacity and need for medical treatment.

(applicant’s submissions dated 27 February 2018 at [25]-[26])

41    On the other hand, the respondent contends that:

When regard is had to the aspects of the Tribunal’s decision set out below [which analysed the Tribunal’s consideration of, and conclusions on, the medical evidence] it is clear the Tribunal was not persuaded there was a causal link between the soft tissue injuries the applicant suffered in 2006 and the development of her applicant’s [sic] chronic pain syndrome and it therefore concluded the applicant’s chronic pain syndrome had come after (or developed subsequently to) her 2006 injuries but was not as a result of them …

42    The respondent contends that the Tribunal therefore used the term “secondary” in its reasons at [37] to refer only to the fact that the chronic pain syndrome had post-dated the accepted injuries and not in the sense that there was a causal link between the chronic pain syndrome and the accepted soft-tissue injuries. As such, based upon Comcare’s construction of the medical evidence and the Tribunal’s reasoning, Comcare submitted that when the Tribunal’s reasons are read a whole:

… it is clear the Tribunal carefully considered the case that was advanced on behalf of the applicant (that her chronic pain condition was caused by or related to the 2006 injuries) but rejected it – concluding instead that her compensable injuries had ceased prior to 23 March 2015 (and probably well before that). Such a conclusion was open to the Tribunal and does not suggest any misconstruction or misapplication of what is ‘an injury’ for the purposes of the SRC Act.

43    It follows that the issues raised by the first three questions of law focus in the first instance upon the proper construction of the Tribunal’s reasons.

44    In resolving this issue, I note that the applicant did not contend that the word “secondary” was a technical medical term. Rather, it was common ground that the word was susceptible of (relevantly) two ordinary meanings, namely, “next after the first in … time” on the one hand, or resulting from or “derived or derivative; not primary or original” on the other hand: see the Macquarie Dictionary Online (Macmillan, 2019); see also the Oxford English Dictionary (online) (Oxford University Press, 2019). As I have explained, the applicant contended that the Tribunal had used the word in the sense of the second meaning, namely, that the primary soft-tissue injuries were the cause of the chronic pain syndrome. The respondent however submitted that the Tribunal used the word in the first sense.

45    I also note that the reasons of the Tribunal are, with respect, somewhat difficult to follow and its conclusions, at times difficult to relate to the evidence. While this Court cannot review the merits of the decision, nonetheless, in order to understand the Tribunal’s reasons, it is necessary to understand the medical evidence, as was assumed by both parties in the manner in which they put their submissions.

3.3    The Tribunal erred in its understanding of the concept of “injury” under the Act

46    It is well established that the applicant bears the onus of demonstrating an error of law on the part of the Tribunal. It is also well established that the reasons of an administrative decision-maker “are not to be construed minutely and finely with an eye keenly attuned to the perception of error”: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272 (Brennan CJ, Toohey, McHugh and Gummow JJ (quoting with approval Collector of Customs v Pozzolanic (1993) 43 FCR 280 at 287)). As such, when it is said that such reasons should be read beneficially, ultimately this means that “a commonsense and realistic approach should be taken to understanding the reasons as a whole to see what it was that the Tribunal was saying”: Fang Wang v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1044 at [14]-[15] (Allsop J (as his Honour then was)).

47    Applying this approach, a fair reading of the Tribunal’s reasons demonstrates that the applicant’s construction is to be preferred for the reasons given below. As a result, it is apparent that the Tribunal must have erred in its understanding of the concept of an “injury” under the Act because its finding at [37] should have led it to conclude that the requisite causal connection was established between the applicant’s chronic pain syndrome and the accepted primary injury.

48    First, the applicant plainly put in issue before the Tribunal the question of whether her chronic pain syndrome was caused by the accepted primary injuries sustained by her directly as a result of the 2006 accident. Thus the applicant defined the first issue before the Tribunal as whether she continues to suffer from her incapacity and this incapacity “results from” the compensable injury so as to fall within the ambit of s 14(2) of the Act (applicant’s statement of issues, facts and contentions filed in the Tribunal dated 20 September 2016 (the applicant’s SIFC) at [13]) (Supplementary Appeal Book Pt C (Supp AB) at p. 46). Thus, under the heading “Contentions” in the applicant’s SIFC, she alleged that:

(1)    the opinions of Drs Coyle, Obermeder, Le Leu and Paul should be preferred over that of Dr Vecchio (applicant’s SIFC at [16]);

(2)    “… the soft-tissue injuries have evolved into a regional pain syndrome” (applicant’s SIFC at [17]; emphasis added);

(3)    on the balance of probabilities, the applicant’s present injuries are a continuation of the compensable injuries sustained in 2006 (applicant’s SIFC at [18]); and

(4)    accordingly, Comcare remains liable under s 14(2) of the Act for her present injuries (applicant’s SIFC at [20]).

(See also the transcript of submissions before the Tribunal, Supp AB at p. 57.33-57.44)

49    Secondly, Dr Paul, whose evidence was among that preferred by the Tribunal, clearly used the word “secondary” in a causative sense in his report of 24 June 2016 in the passage quoted by the Tribunal at [32] of its reasons. That passage appears at page 8 of the report under the heading “Diagnosis” in which Dr Paul expressed the opinion that:

Soft tissue injuries following motor vehicle accident in March 2006 affecting her neck, right shoulder, upper limbs on both sides and right hip. The right hip soft tissue injury has resolved, however, she appears to have gone on to develop a chronic pain syndrome secondary to the soft tissue injuries [she suffered in the 2006 accident].

50    Similarly, in answer to the question “[i]n your opinion, and based on the medical evidence before you, is Ms Howard currently suffering from the effects of her accepted conditions? If not, when did they resolve”, Dr Paul responded:

Ms Howard is not suffering from the accepted condition which includes her neck sprain and contusion of upper arm and finger, hip and thigh on the right.

She, however, has developed a chronic pain syndrome secondary to the subject accident injuries. The sprains and contusions would likely have resolved within three months of the subject accident.

51    Furthermore, in answer to the question of whether, if the applicant does not suffer from the effects of her accepted conditions, she suffers from a different condition and if so, as to the cause of that condition, Dr Paul said that:

She has gone on to develop a chronic pain syndrome. This is based on her history of constant pain since the accident and the affected areas except for the right hip and thigh.

(emphasis added)

52    In addition, in answer to the question of whether the applicant required medical treatment for her accepted conditions on and from 23 March 2015 and in the future, Dr Paul considered that the applicant would benefit from referral to an evidence-based multidisciplinary pain management program.

53    For all of these reasons it is therefore plain, and must have been plain to the Tribunal, that Dr Paul was using the term “secondary” in a causative sense, i.e., to say that the chronic pain syndrome developed out of the soft-tissue injuries after the date of the 2006 accident and had continued despite the soft-tissue injuries having been completely resolved.

54    Thirdly, when the Tribunal found at [37] that the applicant “developed a chronic pain secondary to the injuries she suffered in the 2006 accident”, it can reasonably be inferred that the Tribunal was using the term “secondary” in the same sense as that used by Dr Paul given in particular that:

(1)    the Tribunal accepted Dr Paul’s evidence at [36]; and

(2)    the finding is one of the findings expressly made at [37] on the balance of probabilities “[h]aving regard to the medical evidence”.

55    Furthermore, if the Tribunal had accepted only some, but not all, of Dr Paul’s evidence, it can be inferred that it would have qualified its acceptance of Dr Paul’s evidence accordingly and explained the different sense in which it used the word “secondary” at [37] of its reasons. This is particularly so given that the question of whether the chronic pain syndrome arose out of the 2006 injury in a causal sense was central to the applicant’s case and that the applicant relied upon Dr Paul in support of her case on this issue: see above at [48]; see also the requirement to include findings on material questions of fact in s 43(2B) of the AAT Act.

56    That being so, the Tribunal’s acceptance of Dr Paul’s evidence cannot be reconciled with its finding at [39] that the applicant does not continue to suffer the effects of her 2006 injuries. That in itself is sufficient to establish that the Tribunal must have erred in its understanding of the concept of an “injury” under the Act, as the respondent conceded.

57    I am reinforced in my view that the Tribunal’s reasons are properly construed in the manner for which the applicant contends by the Tribunal’s focus upon the question of whether there was a continuing organic pathology which provided a connection between the chronic pain syndrome and the 2006 accident. This apparently explains why the Tribunal did not consider that the finding at [37] established the necessary causal link for the purposes of the Act.

58    First, while the Tribunal preferred both Dr Paul and Dr Vecchio’s evidence, it must be borne in mind that the evidence of Dr Vecchio, who is a rheumatologist, was ultimately that there was no organic issue arising from the primary injury which explained why the applicant continued to suffer pain. It was in that context that he found that her continuing symptoms are unlikely to relate to the accident and considered it more probable that there was an alternative cause relating to the human psyche “that could be perpetuating the pain or causing the pain”.

59    Secondly, the Tribunal at [36] rejected Dr Gorman’s evidence that the applicant’s current condition is connected with “the events of 2006” because it was premised upon the effect of the 2006 injuries having continued substantially unchanged since the 2006 accident. Yet, in the Tribunal’s view, Dr Gorman’s evidence that there was an increase in the applicant’s range of movement despite the cessation of treatment 18 months earlier meant that there had been some change in her condition, thereby undermining Dr Gorman’s premise. This clearly indicates that the Tribunal assumed that there must be a continuing connection between the organic injuries suffered in 2006 and the chronic pain syndrome. It was not sufficient, in other words, if the symptoms of chronic pain alone continued.

60    Thirdly, pivotal to the Tribunal’s conclusion at [39] that the applicant does not continue to suffer the effects of her 2006 injuries was the finding at [38] that “[n]one of the medical experts suggested a mechanism by which the 2006 injuries could continue to cause Ms Howard’s current condition” given that the soft tissue injuries resolved within 3 to 6 months and that none of the scans had revealed a pathology attributable to the 2006 accident which could explain her condition. Nor, the Tribunal found, was there any evidence on the basis of which the Tribunal could find that the applicant suffered from a psychological condition.

61    As I have indicated, these matters suggest that the Tribunal failed to appreciate that medical conditions like chronic pain syndrome, which evolve out of primary injuries, are just as much an injury for the purposes of the Act as the primary injury. This explains the Tribunal’s focus upon whether organic or psychological injuries directly arising out of the 2006 accident provided an explanation for the applicant’s chronic pain syndrome, which it accepted at [18] had been experienced by her ever since the 2006 accident at varying levels primarily in her upper neck and shoulder blades. However, the correct position under the Act is that it sufficed if the chronic pain syndrome was caused by the first injury, as the Tribunal accepted in finding as a matter of fact that the chronic pain syndrome was secondary to the injuries suffered in the 2006 accident in line with Dr Paul’s evidence. This error is, with respect, analogous to that made by the Tribunal in Canute which treated the concept of “injury” as co-extensive with the workplace incident save that here the Tribunal appears to have treated the concept of “injury” under the Act as co-extensive with the primary injury.

4.    CONCLUSION

62    It follows that the appeal must be allowed and the decision of the Tribunal set aside, with the respondent to pay the applicant’s costs of the appeal. The parties were also broadly agreed that if the applicant was successful, Comcare’s liability for the accepted 2006 injury would remain extant and it remained for any entitlements under ss 16 and 19 of the Act to be determined. I will therefore also make orders affording the parties the opportunity to agree the further orders otherwise to be made to give effect to these reasons or, in the alternative, to file proposed short minutes of order and brief written submissions.

Associate:

Dated:    2 July 2019