Tribunal: Deputy President Gary Humphries and Member Dr Bernard Hughson

Comcare determined that the applicant had no present entitlement to compensation under sections 16, 19 and 29 of the Safety, Rehabilitation and Compensation Act 1988 (the Act). On 5 February 2018, the Administrative Appeals Tribunal set aside this decision.

The applicant sustained a workplace injury while employed by the Civil Aviation Safety Authority (CASA) as a result of repetitive computer and telephone work. Comcare accepted liability in October 2008 for a condition of Chronic Pain Syndrome and paid the applicant compensation under sections 24 and 27 of the Act for 10 per cent permanent impairment for neck and right shoulder pain. Sections 16, 19 and 29 of the Act provide compensation for; medical treatment obtained in relation to the injury; the incapacity for work of the applicant; and household assistance, respectively. Comcare submitted that the symptoms the applicant suffered from, if any, are not sufficient to entitle her to any benefits under these sections.

Comcare provided covert video evidence of the applicant undertaking daily tasks that they suggest should have been impossible for her given her condition. The Tribunal also heard from the applicant and a number of medical specialists who assessed her.

The Tribunal had to consider the question of the applicant’s credibility. The Tribunal was not satisfied, based on the evidence provided, that the applicant had been wholly truthful. The Tribunal did not consider the level of incapacity to which the applicant testified was consistent with evidence received. The inconsistencies between what the applicant told Comcare, various doctors and the Tribunal about her condition, on the one hand, and the evidence of the surveillance material on the other, as well as her presentation in the witness box, suggested a measure of embellishment in her account.

Despite these doubts about the reliability of the applicant’s evidence, the Tribunal was not convinced that the evidence reached the level necessary to satisfy the conclusion that the applicant had ceased to suffer all effects of her condition. The medical professionals who provided evidence all claimed that her condition required continuing treatment. The Tribunal noted that although the evidence painted a somewhat blurred picture in this regard, it was found on the balance of probabilities that treatment for pain relief is, to some extent, treatment in relation to her accepted condition of chronic pain syndrome and is reasonable to obtain in the circumstances.

The Tribunal did not conclude that the applicant was entitled to compensation due to incapacity under section 19. Relevant to that requirement, section 4(9) of the Act requires the applicant to have incapacity to engage in any work or incapacity to engage in work at the same level at which he or she was engaged before the injury happened. Firstly, the evidence of the medical specialists was that she had some capacity to return to full-time work. The Tribunal then questioned whether the totally normal functional capacity exhibited in the videos should be regarded as representative of the situation all of the time or merely as snapshots of her capacity only in certain circumstances. The Tribunal considered that the functionality exhibited in the videos is representative of her day-to-day capacity to carry out a range of normal activities and was not persuaded that the applicant had been candid about that level of capacity. The Tribunal concluded that on the balance of probabilities the applicant didn’t suffer any incapacity to work.

The Tribunal set aside the reviewable decision and substituted the decision that the applicant is entitled to compensation under section 16 for the cost of medical treatment but is not entitled to compensation under sections 19 or 29 for that condition.

Read the full written decision on Austlii.