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Liability

The tribunal noted the outcome of the dispute depended on the medical evidence put forward before them.

In terms of the forearm and wrist condition, the tribunal found that the only evidence that the applicant suffered from such a condition came from the applicant himself and such evidence was to be treated with caution. The tribunal was conscious that extravagant or intemperate language is not uncommon where an individual is in pain; however it was clear that the applicant’s complaints about pain were not consistent. The lack of medical evidence on the file led to the tribunal’s decision to affirm the rejection for the claim.

With respect to the elbow condition, the tribunal gave weight to a neurologist’s opinion, which outlined that there was no evidence to suggest the applicant was suffering from either lateral epicondylitis or de Quervain’s disease at the time. Her evidence was relied upon due to her specialist expertise over the evidence provided by others with less experience in this particular medical field.

Similarly, with respect to the applicant’s alleged psychiatric condition, the tribunal once again relied on the evidence provided by an independent expert in the field, which suggested that the applicant did not suffer from a diagnosable psychiatric condition. The tribunal relied upon this evidence in the presence of competing views provided by persons with significantly less medical experience and those who were associated with treating the applicant.

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Incapacity

The applicant suffered two injuries of a similar nature which occurred within a period of five months from two different roles, the first being an adjustment disorder which arose from her employment in May 2003, and the second described as an “aggravation of adjustment reaction with mixed emotional features” in September 2003.

In March 2006, Comcare decided that as at 1 November 2005 the applicant was no longer incapacitated for work as a result of the injury. It was not in dispute that the injury was suffered by the applicant as a result of incidents which occurred at two meetings attended by her in September 2003 and her perception that she was not supported by her superior officer in relation to the events of these meetings and her induction into the second role.

The tribunal noted that the issue for determination was whether the applicant had been incapacitated for work at any time between 1 November 2003 and the date of the decision as a result of the injury suffered in September 2003. Reference was made to section 19 of the 1988 Act with respect to liability to pay compensation for periods of incapacity for work.

In reaching their decision, the tribunal was satisfied that the applicant had personality traits which had caused her on occasions to experience difficulties in personal relationships which she would not have experienced but for those traits. They also acknowledged that, prior to her suffering the injury, the applicant had experienced a number of stressful events in her life which understandably caused her distress and at times to suffer an episode of depression.

The tribunal noted that in order to cease payments for incapacity it is necessary that they were persuaded that circumstances have changed sufficiently to justify the cessation. The tribunal was not persuaded that the applicant had recovered from the injury by 1 November 2005 or at the time of the decision despite the improvement in her condition. The evidence provided by the applicant, the applicant’s daughter, the treating general practitioner, a clinical psychologist and a consultant psychologist was accepted in this respect.

Permanent Impairment

The applicant suffered an injury to her left knee in 1986 which, as a result of work-related factors, resulted in a permanent condition known as left chondromalacia patellae (left knee condition). Subsequently in 1987, the applicant suffered a right knee injury which, as a result of work-related factors, resulted in a permanent condition known as right chondromalacia patellae with medical meniscus tear (the right knee condition). As a result of both conditions, the applicant could rise to a standing position and walk but she had difficulty with grades and steps, not distances.

In December 2005, the applicant lodged a claim for compensation in relation to the two injuries, whereby the claim for the left knee condition was rejected in June 2006, but a reviewable decision in January 2007 revoked the determination and accepted liability for the left knee condition. In February 2007, a determination accepted liability for the right knee condition. In March 2007, the applicant’s solicitors requested that she be assessed for permanent impairment in relation to the accepted right knee condition, however a determination rejected liability to pay a lump sum for such impairment and subsequently the applicant requested a review of that decision in April 2007. A reviewable decision in May 2007 affirmed the determination of the March 2007 decision.

The Court questioned whether the applicant was entitled to compensation in respect of permanent impairment resulting from the second injury in accordance with section 28 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (‘the 1988 Act’) and “Guide to the Assessment of the Degree of Permanent Impairment” (‘Guide’).

The Court followed Comcare v Van Grinsven (2002) 117 FCR 169 and distinguished Canute v Comcare (2006) 226 CLR 535. The Court noted the starting point of the inquiry as to the applicant’s entitlement to compensation in respect of her right knee injury was that she suffered two injuries to different parts of her body. The Court also noted that Canute would not dictate the result in the present case as the Act created a liability to pay compensation in respect of injury, not impairment.

The Court held the applicant was not entitled to compensation in respect of permanent injury resulting from the second injury because her degree of
 
impairment was still only in the first category of Table 9.5 of the Guide: "Can rise to a standing position and walk but has difficulty with grades and steps" signifying no change to her 10% whole body impairment for the purposes of the 1988 Act and Guide.

It was open for Comcare under section 28(1) of the 1988 Act to provide in respect of “Limb Function – Lower Limb” as it had done in Table 9.5. The Court distinguished Table 9.4 from Table 9.5 as the later reflects a view that lower limbs function as a pair rather than independently of the other in the activities of daily living. Consequently, the Court found that the applicant did not suffer 20% whole person impairment under Table 9.5 because her right knee injury did not cause her to suffer an impairment involving difficulty with distances. The Court decided that the two knee injuries suffered by the applicant gave rise to the same impairment in terms of Table 9.5, hence only a single rating should have been given.

Rehabilitation

The applicant was diagnosed with a condition described as “adjustment disorder with mixed anxiety and depressed mood”. In February 2006, Comcare accepted liability to pay compensation to the applicant.

In June 2006, the employer put in place the processes for an assessment of the applicant’s capability of undertaking a rehabilitation programme pursuant to the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the 1988 Act). The applicant was due to commence work on 1 August 2006; however this did not eventuate as the applicant’s treating practitioner expressed his opinion that the applicant was “not psychiatrically capable of commencing the duties on 1 August 2006”.

Subsequently, the applicant’s treating practitioner expressed the opinion that the applicant was suffering from a delusional disorder and that he could not support a return to work/rehabilitation programme. In a subsequent report, the psychiatrist outlined that the new condition was linked to the applicant’s employment with the Commonwealth.

In December 2006, another psychiatrist expressed the opinion that the applicant was medically fit to participate in an independent rehabilitation programme outside the Commonwealth and Queensland Governments, and plans were put in place so that the programme was to commence in February 2007. The applicant’s treating practitioner was made aware of these circumstances and failed to support her attendance at the meeting required under the independent rehabilitation programme due to her psychiatric condition.

The tribunal noted the sole issue for determination, with respect to section 37(1) of the 1988 Act, was whether the applicant had a reasonable excuse for her failure to attend the meeting in February 2007. The tribunal stressed that their task was to evaluate the reasonableness of any excuse presented to explain the applicant’s failure to undertake the programme, rather than focussing on the reasonableness of the program itself.

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