Smith and Comcare [2002] AATA 249 (3 June 2002)

Last Updated: 7 June 2002

DECISION AND REASONS FOR DECISION [2002] AATA 249

ADMINISTRATIVE APPEALS TRIBUNAL )

) No A1999/424

GENERAL ADMINISTRATIVE DIVISION ) No A1999/461 No A2000/10 No A2000/11

Re Stephen SMITH

Applicant

And COMCARE

Respondent

DECISION

Tribunal Mr G A Mowbray

Date 15 April 2002

Place Canberra

Decision The Tribunal:

1. Affirms the reviewable decision of 8 December 1999 in matter A2000/10.

2. Sets aside the reviewable decisions of 30 September 1999 in matter A1999/424 and of 8 December 1999 in matters A1999/461 and A2000/11 and remits these matters to the Respondent for reconsideration in accordance with the following directions:

From 8 March 1999 the Applicant continued to be incapacitated for work for the purposes of section 19 of the Act;

the Applicant remained incapacitated for work for the purposes of section 19 of the Act at October 2001;

suitable employment for the Applicant for the purposes of section 19 of the Act would be administrative, clerical and similar work, without contact duties, within the ACT and surrounding regions;

the Applicant did not receive an offer of suitable employment after becoming incapacitated for work as a result of the second incident, nor did he fail to accept any such offer;

after becoming incapacitated for work the Applicant did not receive an offer of suitable employment on condition that he completed a rehabilitation or vocational retraining program;

the Applicant did not fail to seek suitable employment after becoming incapacitated for work;

the Applicant is entitled to payment of medical expenses from 24 September 1999 for ongoing treatment including in particular that detailed at paragraph 98 of the reasons for this decision;

the Applicant is entitled to compensation for the cost of treatment for the psychological condition he suffers as sequelae of his neck sprain.

3. Orders the Respondent to pay the Applicant's costs in the proceedings for which the reviewable decisions are set aside in paragraph 2, as agreed or taxed.

..............................................

Member

CORRIGENDUM TO DECISION AND REASONS FOR DECISION

Tribunal : Mr G A Mowbray, Member

Date : 3 June 2002

Place : Canberra

Direction : Pursuant to section 43AA(1) of the Administrative Appeals Tribunal Act 1975 the Tribunal directs that the Registrar alter the text of the statement of reasons for decision in this matter, published 15 April 2002, as follows:

1. In paragraph 13, by replacing the extract from section 19 of the Safety, Rehabilitation and Compensation Act 1988 with the following extract

"19 Compensation for injuries resulting in incapacity

(1) This section applies to an employee who is incapacitated for work as a result of an injury, other than an employee to whom section 20, 21, 21A or 22 applies.

(2) Subject to this Part, Comcare is liable to pay compensation to the employee in respect of the injury, for each of the first 45 weeks (whether consecutive or otherwise) during which the employee is incapacitated, of an amount calculated using the formula:

NWE - AE

where:

NWE is the amount of the employee's normal weekly earnings; and

AE is the amount per week (if any) that the employee is able to earn in suitable employment.

...

(4) In determining, for the purposes of subsections (2) and (3), the amount per week that an employee is able to earn in suitable employment, Comcare shall have regard to:

(a) where the employee is in employment--the amount per week that the employee is earning in that employment;

(b) where, after becoming incapacitated for work, the employee received an offer of suitable employment and failed to accept that offer--the amount per week that the employee would be earning in that employment if he or she were engaged in that employment;

(c) where, after becoming incapacitated for work, the employee received an offer of suitable employment and, having accepted that offer, failed to engage, or to continue to engage, in that employment--the amount per week that the employee would be earning in that employment if he or she were engaged in that employment;

(d) where, after becoming incapacitated for work, the employee received an offer of suitable employment on condition that the employee completed a reasonable rehabilitation or vocational retraining program and the employee failed to fulfil that condition--the amount that the employee would be earning in that employment if he or she were engaged in that employment;

(e) where, after becoming incapacitated for work, the employee has failed to seek suitable employment--the amount per week that, having regard to the state of the labour-market at the relevant time, the employee could reasonably be expected to earn in such employment if he or she were engaged in such employment;

(f) where paragraph (b), (c), (d) or (e) applies to the employee--whether the employee's failure to accept an offer of employment, to engage, or to continue to engage, in employment, to undertake, or to complete, a rehabilitation or vocational retraining program or to seek employment, as the case may be, was, in Comcare's opinion, reasonable in all the circumstances; and

(g) any other matter that Comcare considers relevant.

..."

..............................................

Member

CATCHWORDS

COMPENSATION - effect of "cease liability" determination - burden of persuasion

COMPENSATION - incapacity to work - meaning of "at the same level"

COMPENSATION - psychological sequelae - causation

Safety, Rehabilitation and Compensation Act 1982, ss 4(9), 14, 16, 19

Re Carson and Telstra Corporation [2001] AATA 648; (2001) 33 AAR 351

Lees v Comcare (1999) 29 AAR 350; 56 ALD 84

Re Quinn and Australian Postal Corporation (1992) 15 AAR 519

Commonwealth v Borg (1991) 20 AAR 299n

Comcare v Nichols [1999] FCA 209

Arnotts Snack Products Pty Ltd v Yacob (1985) 155 CLR 171

Re Sabioni and Comcare (1999) 30 AAR 153; 61 ALD 305

Re Metcalf and Comcare (1998) 53 ALD 624

Re Prica and Comcare (1996) 44 ALD 46

Re Jorgensen and Commonwealth (1990) 23 ALD 321; 11 AAR 543

Re Kentish and Telstra Corporation Ltd [1999] AATA 661

Re King and Comcare (AAT 13350, 5 October 1998)

Kirkpatrick v Commonwealth of Australia (1985) 9 FCR 36; 62 ALR 533

Migge v Wormald Bros Industries [1972] 2 NSWLR 29

Ystradowen Colliery Company Ltd v Griffiths (1909) 2 KB 533

REASONS FOR DECISION

15 April 2002 Mr G A Mowbray

1. In these proceedings the applicant, Stephen Smith, seeks review of four decisions of the respondent, Comcare, under the Safety, Rehabilitation and Compensation Act 1988 (the Act) resulting from two workplace incidents on 20 April 1998 and 6 October 1998 in which Mr Smith was injured and for which Comcare accepted liability. The four decisions were

* that from 16 August 1999 Mr Smith was not entitled to compensation under any provision of the Act as a consequence of the first incident (matter A2000/10)

* that Mr Smith was not entitled to compensation beyond 8 March 1999 for incapacity resulting from the second incident (matter A1999/424)

* that Mr Smith was not entitled to compensation for psychological counselling in relation to the second incident (matter A1999/461)

* that Mr Smith was not entitled to further medical treatment resulting from the second incident in the absence of additional specialist medical evidence (matter A2000/11).

2. Two other applications relating to these two incidents, one by Mr Smith (A1999/423) and another by the Australian Capital Territory (A1999/183), were withdrawn, the latter on the first day of the hearing on 3 October 2001.

3. At the hearing on 3, 4 and 18 October 2001 Mr Smith was represented by Mr R Crowe instructed by Porter Parkinson and Bradfield, and Comcare by Ms L Gabriel instructed by Phillips Fox.

Background

4. In October 1997 Mr Smith commenced employment with the ACT Department of Justice and Community Safety. His duties included transporting prisoners to court, guarding them whilst in court and undertaking work in the Belconnen Remand Centre.

5. On 20 April 1998 in an incident in the cell corridor of the ACT Supreme Court Mr Smith suffered a broken nose, a torn muscle in his left leg and a neck injury (the first incident). Mr Smith filed a claim for compensation with Comcare on 22 April 1998 and Comcare accepted liability for "fracture nasal bones, partial tear (L) biceps femoris and strain to cervical spine".

6. In June 1998 Mr Smith commenced casual work as a youth worker with the ACT Department of Education and Community Services at the Quamby Youth Detention Centre. From 6 August 1998 this became a temporary full-time contract which was eventually extended until 9 December 1998.

7. In a further incident on 6 October 1998 Mr Smith sustained injuries to his toes and neck while attempting to restrain a juvenile during the course of his duties at Quamby (the second incident). Mr Smith lodged a claim for compensation with Comcare on 14 October 1998, which on 23 November 1998 accepted liability for "neck sprain" and "closed fracture of one or more phalanges of foot (Right)".

8. It is not in dispute that these two incidents occurred, nor that they took place in the course of Mr Smith's employment. As indicated above Comcare accepted liability for each incident.

9. On 15 July 1999 Comcare made a determination that Mr Smith was no longer incapacitated as a result of the injuries sustained in the second incident and as such no further benefits were payable to him beyond 8 March 1999. From that date Mr Smith was found to have capacity to undertake other employment so long as it was not highly physical. This determination was affirmed by a reviewable decision on 30 September 1999, review of which was sought with the Tribunal on 18 November 1999.

10. On 12 August 1999 Comcare made a determination denying Mr Smith's claim for psychological counselling for injuries flowing from the second incident on the basis of the medical information then available. This was affirmed by a reviewable decision of 8 December 1999 which is the subject of an application for review of 24 December 1999.

11. Comcare made a determination on 16 August 1999 that from that date Mr Smith was no longer entitled to any compensation under the Act as a result of the first incident. This was affirmed by a reviewable decision on 8 December 1999 and is the subject of an application for review of 11 January 2000.

12. Another reviewable decision on 8 December 1999 affirmed a determination of 24 September 1999 that Mr Smith was not entitled to any further medical treatment for the second incident on the basis of medical evidence available at that time. This decision emphasised that it did not at that point in time cease ongoing liability for medical treatment and Mr Smith remained free to lodge additional medical evidence to support any claim for further medical treatment. On 11 January 2000 Mr Smith also lodged an application for review of this decision with the Tribunal.

Legislation

13. The relevant provisions of the Act are as follows

"4 Interpretation

(1) In this Act, unless the contrary intention appears:

...

"injury" means:

...

(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;

...

"medical treatment" means:

(a) medical or surgical treatment by, or under the supervision of, a legally qualified medical practitioner; or

(b) therapeutic treatment obtained at the direction of a legally qualified medical practitioner; or

...

(d) therapeutic treatment by, or under the supervision of, a physiotherapist, osteopath, masseur or chiropractor registered under the law of a State or Territory providing for the registration of physiotherapists, osteopaths, masseurs or chiropractors, as the case may be; or

(e) an examination, test or analysis carried out on, or in relation to, an employee at the request or direction of a legally qualified medical practitioner or dentist and the provision of a report in respect of such an examination, test or analysis; or

...

"suitable employment", in relation to an employee who has suffered an injury in respect of which compensation is payable under this Act, means:

(a) in the case of an employee who, on the day on which he or she was injured was a permanent employee of the Commonwealth or a licensed corporation and who did not subsequently terminate that employment--employment by the Commonwealth or the licensed corporation, as the case may be in work for which the employee is suited having regard to:

(i) the employee's age, experience, training, language and other skills;

(ii) the employee's suitability for rehabilitation or vocational retraining;

(iii) where employment is available in a place that would require the employee to change his or her place of residence--whether it is reasonable to expect the employee to change his or her place of residence; and

(iv) any other relevant matter; and

(b) in any other case--any employment (including self-employment), having regard to the matters specified in subparagraphs (a)(i), (ii), (iii) and (iv).

...

"therapeutic treatment" includes an examination, test or analysis done for the purpose of diagnosing, or treatment given for the purpose of alleviating, an injury.

...

(8) A reference in this Act to an injury suffered by an employee is, unless the contrary intention appears, a reference to an injury suffered by the employee in respect of which compensation is payable under this Act.

(9) A reference in this Act to an incapacity for work is a reference to an incapacity suffered by an employee as a result of an injury, being:

(a) an incapacity to engage in any work; or

(b) an incapacity to engage in work at the same level at which he or she was engaged by the Commonwealth or a licensed corporation in that work or any other work immediately before the injury happened.

..."

"14 Compensation for injuries

(1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.

..."

"16 Compensation in respect of medical expenses etc.

(1) Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.

..."

"19 Compensation for injuries resulting in incapacity

(1) This section applies to an employee who is incapacitated for work as a result of an injury, other than an employee to whom section 20, 21, 21A or 22 applies.

(2) Subject to this Part, Comcare is liable to pay to the employee in respect of the injury, for each week that is a maximum rate compensation week during which the employee is incapacitated, an amount of compensation worked out using the formula:

NWE - AE

where:

AE is the greater of the following amounts:

(a) the amount per week (if any) that the employee is able to earn in suitable employment;

(b) the amount per week (if any) that the employee earns from any employment (including self-employment) that is undertaken by the employee during that week.

NWE is the amount of the employee's normal weekly earnings.

...

(4) In determining, for the purposes of subsections (2) and (3), the amount per week that an employee is able to earn in suitable employment, Comcare shall have regard to:

(a) where the employee is in employment (including self-employment)--the amount per week that the employee is earning in that employment;

(b) where, after becoming incapacitated for work, the employee received an offer of suitable employment and failed to accept that offer--the amount per week that the employee would be earning in that employment if he or she were engaged in that employment;

(c) where, after becoming incapacitated for work, the employee received an offer of suitable employment and, having accepted that offer, failed to engage, or to continue to engage, in that employment--the amount per week that the employee would be earning in that employment if he or she were engaged in that employment;

(d) where, after becoming incapacitated for work, the employee received an offer of suitable employment on condition that the employee completed a reasonable rehabilitation or vocational retraining program and the employee failed to fulfil that condition--the amount that the employee would be earning in that employment if he or she were engaged in that employment;

(e) where, after becoming incapacitated for work, the employee has failed to seek suitable employment--the amount per week that, having regard to the state of the labour-market at the relevant time, the employee could reasonably be expected to earn in such employment if he or she were engaged in such employment;

(f) where paragraph (b), (c), (d) or (e) applies to the employee--whether the employee's failure to accept an offer of employment, to engage, or to continue to engage, in employment, to undertake, or to complete, a rehabilitation or vocational retraining program or to seek employment, as the case may be, was, in Comcare's opinion, reasonable in all the circumstances; and

(g) any other matter that Comcare considers relevant.

..."

Documentary Evidence

14. The Tribunal had before it the following documents which were taken into evidence for each of the four matters under review

* Exhibits S1T1 - S1T137: the documents lodged under section 37 of the Administrative Appeals Tribunal Act 1975 (the AAT Act) in matter A1999/183

* Exhibits S2T1 - S2T128: the documents lodged under section 37 in matter A1999/424

* Exhibits S3T1 - S3T22: the documents lodged under section 37 in matter A1999/461

* Exhibits S4T1 - S4T41: the documents lodged under section 37 in matter A2000/10

* Exhibits S5T1 - S5T28: the documents lodged under section 37 in matter A2000/11

* Exhibits A1 - A17: documents tendered by the applicant, Mr Smith

* Exhibits R1 - R16: documents and a video (R11) tendered by the respondent, Comcare.

Mr Smith's Evidence

15. In his oral evidence to the Tribunal the applicant, Mr Smith, provided background information on his education and earlier work experience. He had completed his year 10 certificate in the ACT and had then undertaken general labouring tasks over a period of years. In 1986 he joined the RAAF where he worked for 3½ years in the Airfield Defence Guard followed by five to six years operating his own private investigation security business in Brisbane.

16. He returned to Canberra working initially as a part-time security officer at a local club and then spent 12 months full time as a temporary janitor for the ACT Department of Education and Community Services. Shortly after his return to Canberra Mr Smith started playing rugby league again and by 1997 he was a semi-professional player.

17. Mr Smith said that in October 1997 he obtained a full-time casual position as a Custodial Officer Level 3 with ACT Corrective Services in the Department of Justice and Community Safety. Here there were three work centres, each of which required officers to apply physical restraint from time to time. Prior to April 1998 he had not suffered any injury to his neck from either his work as a Custodial Officer or from playing rugby league.

18. The first incident, which occurred on 20 April 1998, involved a physical altercation with a prisoner during which Mr Smith was punched in the face, resulting in a broken nose and pain to the head and to the left side of his neck. He has suffered headaches regularly since the time of that injury. Following this incident Mr Smith was also tested for Hepatitis B and C and HIV as the prisoner involved was a carrier of each of these viruses. Mr Smith was off work for about five weeks returning towards the end of May 1998. At about this time he also recommenced playing rugby league, which he continued to play throughout the 1998 season although he missed one game in July.

19. The second incident occurred on 6 October 1998 while Mr Smith was employed as a youth worker at the Quamby Youth Detention Centre with the Department of Education and Community Services. On this occasion while attempting to restrain a youth Mr Smith was punched in the head by the youth and then jumped on by a colleague helping to overpower the youth. Mr Smith's suffered a large bump to his forehead, scratches around his eyes and broken toes. As a consequence Mr Smith had a number of days sick leave and rostered days off before returning to work on 13 October.

20. From the end of October he was put on night duty for a period of about six weeks finishing on 9 December. Mr Smith said that night duties were regarded as light duties and minimised the risk to him because of reduced contact with inmates. However his evidence was that none of his supervisors had told him that he was being placed on night duty due to his injury. Rather he had assumed this to be the case.

21. Mr Smith said that following the second incident he experienced headaches, dizzy spells and neck pain. In particular when on night duties the requirement to lift his arms above his head and activate a "smart guard" recording device outside each inmate's bedroom at times caused severe discomfort aggravating his neck pain.

22. In his evidence on his loss of employment with the ACT Government Mr Smith stated that

* on 20 November 1998 he was told by Mr Mitch Anderson, the Deputy Manager at Quamby, that he was to be removed from contract in the next roster period and returned to the casual pool because two other employees were returning from worker's compensation leave

* his last night shift at Quamby was on 9 December 1998, following which he did a couple of casual shifts on 12 and 14 December

* on 11 January 1999 he asked Mr Anderson at Quamby why he had been removed from the roster as well as taken off contract, and was informed that because of the second incident he would require a medical certificate before he could return to full-time duties

* on the next day he obtained a medical certificate from Dr Speldewinde stating that he was fit to return to work for non-contact duties

* on 8 March 1999 he obtained a medical certificate from Dr Speldewinde without this restriction, after he was advised that he would not be able to work at Quamby because of the restriction on contact duties

* he undertook a number of shifts with Corrective Services in December 1998 and January 1999, both before and after his honeymoon from 20 December to 3 January

* despite his desire to the employed by them, he was not offered any work by either of his former ACT Government employers after his last shift with Corrective Services on 10 January 1999.

23. Mr Smith also gave an account of his attempts to find alternative work from about April 1999

* he approached Centrelink and various job agencies and was interviewed for security vetting jobs

* in September 1999 he started a general gardening and maintenance business

* early in 2000 he was employed in a bar performing security and bar work

* because of the limited employment prospects in the ACT he moved to the Gold Coast in March 2000, where he was able to obtain a number of security jobs and where he commenced a part-time TAFE Diploma of Justice course which he was still doing by correspondence at the time of the hearing

* in about January 2001 Mr Smith returned to Canberra where he made numerous attempts to obtain work

* in July 2001 he commenced a course with the Canberra YMCA with a view to qualifying as a fitness instructor.

Exhibits A2 and A12 contain details of Mr Smith's various formal attempts to find employment from March 1999 until about May 2001.

24. In Mr Smith's view his condition was significantly worse at the time of the hearing than it was in January 1999. At that time he was suffering frequent headaches, occasional dizzy spells, stiffness of the neck and was having difficulty raising his arms above head height. By October 2001 the pain was more constant, his neck felt unstable and considerably weaker with more pain in the lower part of the neck, and he was suffering difficulties with his posture when reading, undertaking computer work or sitting in chairs. Furthermore his psychological fitness and mental well-being have been affected. As a consequence the range of activities in which in which he could engage, including but not limited to recreational activities, were much restricted.

Mr Smith's Credibility

25. Ms Gabriel for Comcare invited the Tribunal not to accept Mr Smith as a witness of credit. She relied on a number of issues which she said went to his veracity, openness and credibility

* Mr Smith's inability to recall which arm he had injured and on which an operation was performed whilst he was in the RAAF

* his completion on 6 July 1998 of a health questionnaire indicating that he had never had pain or disability in the neck nor any work-related injury or illness

* his untruthful answers to the Australian Federal Police when seeking employment

* a claim for incapacity payments for time off work from the Education Department during which period he undertook shifts at the Belconnen Remand Centre

* the way he "grossly exaggerated" his symptoms and his inability to work

* inaccuracy in his recollection of the precise events following the second incident

* video evidence which she submitted showed that Mr Smith was able to go about his business in the ordinary way

* her allegation that his worker's compensation claim "took off when Mr Smith's work opportunity dried up".

26. However I agree with the submissions of Mr Crowe for Mr Smith that this attack on his credibility should generally be rejected

* Mr Smith was subject to lengthy and testing cross-examination

* although at times he may have understandably exaggerated a little, in most instances he offered plausible explanations

* his inability to recall details of past events with absolute precision and the fact that there were some inconsistencies in his evidence was unexceptionable

* the evidence does not support Ms Gabriel's contention that Mr Smith only pursued his worker's compensation claim because he was unable to obtain employment with the ACT Government

* little reliance can be placed on the video which was of very limited assistance

* nevertheless it is clear that Mr Smith failed to disclose the extent of his health problems in the health questionnaire and the Australian Federal Police employment form, as he himself acknowledged in retrospect

27. In giving his oral evidence Mr Smith presented as a straightforward individual genuinely trying to give an account of his circumstances as he saw them. Notwithstanding the unfortunate blemishes mentioned above, I in general accept Mr Smith as essentially a reliable and credible witness.

The Medical Evidence

Dr Foo

28. In February 1999 Dr Foo, who has been Mr Smith's general practitioner since 1995, stated that in his opinion the effects of the neck injury resulting from the first incident were still present and that the second incident had aggravated the original injury (Exhibit S1T90). In a report of 2 April 2001 (Exhibit A14) Dr Foo noted that Mr Smith continued to have symptoms and disabilities related to the second incident injury and that further treatment to his neck was necessary, including facet joint injections.

29. Mr Smith's last consultation with Dr Foo was on 1 May 2001 at which time he was still having treatment from Dr Speldewinde and taking certain medication. In a report of 21 September 2001 (Exhibit A8) Dr Foo said

"... he continues to suffer from the effects of injuries of April 1998 and October 1998. The consensus of opinion of his treating specialists is that he is suffering from a cervical dysfunction, probably at the left C2/3 facet joint and at the C7 level. ... These tears could interfere with the proper function of those joints and in turn lead to reflex muscular spasms in the other neck muscles. ... Added to this is the effect of his anxiety and depression, which normally occurs co-morbidly in chronic pain, on muscular tension."

...

"His current treatment requirements would include the following: analgesics and non steroidal anti-inflammatories as required, physiotherapy during exacerbations of pain, continuation of the physical therapy program with Dr Speldewinde to its conclusion, and pain management counselling with psychologist."

...

"He is presently fit for work but with restrictions as laid out in various reports in the past i.e. no heavy physical activity involving heavy lifting, frequent bending, frequent work above shoulder level; no situations where he could be in danger of being attacked again."

30. In his oral evidence Dr Foo added that he also supported the need for facet joint injections as recommended by Dr Speldewinde.

Dr Speldewinde

31. Dr Speldewinde, a consultant in rehabilitation, pain and musculoskeletal medicine, first saw Mr Smith on 8 October 1998. Dr Foo had referred Mr Smith on 23 July 1998 for advice on the neck injury resulting from the first incident. Surprisingly there is no mention in the written record of Mr Smith having mentioned the second incident to Dr Speldewinde even though it occurred only two days prior to the consultation. In a report on the consultation (Exhibit S2T12) Dr Speldewinde said

* Mr Smith presented with disabling left lower neck pain and intermittent, but more severe left upper neck pain with associated headache

* this problem greatly interfered with a number of his activities including semi-professional rugby league

* Mr Smith described being far more irritable and felt more aggressive at work

* he had a full range of neck movement but left sided tenderness at approximately C7, although the bone scan of the cervical spine was normal

* Dr Speldewinde diagnosed possible problems at two levels of the cervical spine

* Mr Smith should be assessed for a formal neck strengthening program and a possible local tender point injection

* although the prognosis over the next 12 months was good, he was not fit to return to full duties as a custodial officer nor as a semi-professional football player.

32. On 29 November 1999 Dr Speldewinde reported (Exhibit A6) that he did not believe that Mr Smith had fully recovered by March 1999, and in particular still recommended a non-contact role. However he understood there was no non-contact work available and Mr Smith was keen to return to the workplace. Mr Smith had had a difficult year with increased left upper neck pain and associated occipital headache. These disabilities were a direct result of the first and second work incidents and not due to deterioration. He should recommence a structured neck strengthening program and might require a systematic series of diagnostic cervical joint injections. Treatment for psychological stress also needed to be considered.

33. In his last report of 27 April 2001 (Exhibit A11), which he endorsed in his oral evidence, Dr Speldewinde noted that Mr Smith continued to report non-resolving left sided neck pain with headaches and shoulder pain, and associated loss of general quality of life. Dr Speldewinde said this warranted further treatment including

* a supervised progressive neck and upper body strengthening program

* further involvement with a clinical psychologist for pain management strategies and assessment

* diagnostic cervical zygapophyseal joint injections to determine whether a joint problem was the cause of the neck pain

* if the joint injections were positive, possible radiofrequency neurotomy.

34. Dr Speldewinde said in his oral evidence that it would be sensible for Mr Smith to avoid high impact situations such as rugby league or violent confrontations as his condition could easily flare up again. He also noted that Mr Smith had exhibited some degree of psychological stress since his first consultation with him, in which his perception that he had not been supported by his employers was only one element.

Dr Eaton

35. Mr Smith first saw Dr Eaton, an occupational physician, on 31 March 1999. Dr Eaton subsequently reviewed him on a number of occasions, the most recent being 20 February 2001. A series of Dr Eaton's reports were put into evidence including Exhibits A3, A4, A15, A16 and S2T101. Dr Eaton found that Mr Smith suffered severe cervicogenic headaches, neck and shoulder pain and associated stiffness. Nevertheless Mr Smith's neck movements were reasonably full with normal flexion, extension, lateral flexion and rotation. He had difficulty sleeping and showed symptoms of severe stress with anxiety and depression. In Dr Eaton's view the psychological trauma was "every bit as important" as the physical trauma, although non-medical factors were also a very significant factor in the severity of Mr Smith's condition.

36. Dr Eaton said that Mr Smith's condition restricted the type of work in which he was able to engage. He could not work in a job involving heavy physical activity such as heavy lifting, extreme bending, prolonged sitting or standing without frequent breaks, frequent raising of the arms above shoulder level or any situation where he could be subjected to violent physical activity. Provided he could vary his posture regularly Mr Smith would be capable of administrative and clerical work and other sedentary office type duties. Indeed Dr Eaton found him fit for sedentary duties when he first examined him on 31 March 1999. He now urgently needed to resume work to overcome depression.

37. Dr Eaton recommended a coordinated injury/pain management program for Mr Smith which included at various times

* analgesics and anti-inflammatory medication

* physiotherapy with later possible hydrotherapy and water-based exercises

* a supervised exercise program and pain management education

* assessment and treatment by a clinical psychologist

* prescription of an antidepressant.

38. Following his most recent review Dr Eaton confirmed that Mr Smith continued to suffer ongoing neck pain, headaches and associated neck stiffness (Exhibit A15). In his opinion these chronic symptoms were directly related to injuries sustained in the course of his work duties on 20 April and 6 October 1998. Furthermore the delay in treatment had increased the chances that Mr Smith would suffer with chronic neck pain and headache permanently.

39. In his oral evidence Dr Eaton confirmed the findings and opinions in his written reports. In particular he

* said that chronic pain was multifactorial

* testified that although there was a strong psychological element in the continuation of Mr Smith's pain, he did not agree that there was no mechanical explanation for the pain

* reiterated the limitations on Mr Smith's ability to work

* reaffirmed the need for a pain management program including an element of psychological counselling.

Dr Dowda

40. Dr Dowda, a consultant occupational physician, saw Mr Smith on 23 December 1999 at the request of Comcare. According to Dr Dowda's report (Exhibit R2) Mr Smith said that although he was not in pain at that time he did experience discomfort if he jolted or jarred his neck. He described having intermittent pins and needles on the left side of the head, behind the left ear and into the left side of the neck. He experienced headaches and neck stiffness, and had many issues emotionally and psychologically. Dr Dowda's examination of the neck revealed that the active ranges of movement were normal for flexion, extension, tilting and rotation left and right. No pain behaviours were manifest at this time. Deep palpation of the cervical spine brought complaints of pain over about the C3/4 facet joint on the left.

41. Dr Dowda considered that Mr Smith had ongoing symptoms of facet joint irritation probably at C3/4 on the left. This continuation of mechanical irritability was probably the result of the two workplace incidents in 1998 and exacerbations through playing contact sports in the winter of 1998. Dr Dowda did not consider that this work-related condition had ceased.

42. In Dr Dowda's opinion Mr Smith was not totally incapacitated for work as a result of this condition. His ongoing condition had not excluded him from obtaining gainful employment generally. There were many occupations which he would be able to undertake due to his experience, education and training and which reasonably would be within his physical capabilities. However work which was likely to cause severe jarring or jolting to the cervical spine should be excluded.

43. Appropriate treatment included

* facet joint injections both for diagnostic and therapeutic purposes

* active focused self-managed exercise

* counselling.

Dr Kitchin

44. When Mr Smith saw Dr Kitchin, an orthopaedic surgeon, on 2 August 1999 he reported persistent upper neck pain and occasional headaches. Jolting activities significantly increased the symptoms. The range of movement of his cervical spine was full in flexion, extension and rotation and there were a number of points of tenderness. Dr Kitchin's diagnosis was a soft tissue injury affecting the cervical spine, the symptoms being a consequence of the first incident. Although Dr Kitchin expressed the view in his written report (Exhibit R6) that Mr Smith could return to "his usual custodial work" and that further neck pain caused by physical restraint on offenders could be properly managed, he agreed in his oral evidence that it would be reasonable to avoid a job where there might be violent incidents.

Dr Hopkins

45. Mr Smith saw Dr Hopkins, a consultant orthopaedic surgeon, on 24 May 1999 at the request of Comcare. According to Dr Hopkins' report (Exhibit S2T103), Mr Smith reported that he continued to experience some neck pain each day although he could be pain free for up to one week at a time. The headaches had also improved but they continued to occur approximately twice weekly. An attempt to play football on one occasion had made his neck extremely painful. On examination there was claimed mild tenderness around the mid part of the cervical spine and also in the occiput. The range of cervical movement was virtually full.

46. Dr Hopkins expressed the view that the effects of the injuries sustained in the first incident had long ceased. However Mr Smith still had some minor residuals as a result of the second incident and these had not yet ceased but should resolve within three to six months. He was currently fit to undertake lighter duties which did not involve "hands on" conflict with prisoners. If his neck remained asymptomatic after approximately six months he would be able to return to normal duties. Dr Hopkins recommended that Mr Smith continued with conservative management and mobilise his neck to a greater extent by increasing his gymnasium activities.

Dr Fuller

47. When Mr Smith was examined by Dr Fuller, a neurosurgeon, on 19 April 2001 he complained of ongoing cervical pain, mainly left-sided, radiating to the trapezius muscle and shoulder regions. He found that the pain was exacerbated with activities such as sitting at a computer desk for long periods and that warmer weather diminished his symptoms. Associated with his cervical pain were occipital headaches. On examination there was a good range of movement of the cervical spine, some mild muscle tenderness in that region and no muscle wasting.

48. Dr Fuller diagnosed mild cervical spondylosis evidenced by a left C6/7 annular bulge (Exhibit A9). He believed this was a direct result of the two incidents. He recommended treatment for Mr Smith consisting of a physical therapy program to maintain the strength and flexibility of his cervical spine and a trial of facet joint injections to see whether this would alter his symptoms. Occupations involving heavy lifting or repetitive bending should be avoided as they would only serve to aggravate his condition and hence disability. In his oral evidence Dr Fuller opined that Mr Smith was quite capable of engaging in other occupations. Dr Fuller generally concurred with the views of Dr Kitchin and Dr Dowda, and with Dr Eaton's proposals for ongoing treatment.

Mr Schaeffer

49. At his consultation with Mr Schaeffer, a consultant neurosurgeon, on 30 September 1999 Mr Smith reported virtually constant cervical pain associated with some pain over the posterior aspect of the left shoulder. He advised that he frequently experienced frontal headaches, which arose spontaneously and might be associated with stress. He did not describe any impairment of mobility of the cervical spine. Mr Schaeffer observed (Exhibit S3T19) that Mr Smith did not create an impression of restriction or discomfort. He had a free and full range of mobility of the cervical spine and of the shoulder joints. Mr Smith did not exhibit tenderness on palpation of the neck or shoulder regions.

50. In Mr Schaeffer's opinion Mr Smith had recovered from most of the early symptoms related to the assaults. There was nothing on examination to suggest that he had a residual problem with his cervical spine, although he continued to complain of significant symptoms. Mr Schaeffer was unable to find any objective evidence to support Mr Smith's allegations of continuing disability or incapacity. He was fit therefore to return to his normal pre-injury duties including work which involved the restraining of juveniles.

Dr Saboisky

51. Dr Saboisky, a consultant psychiatrist, examined Mr Smith on 3 August 2000 for an opinion on any psychological condition. Mr Smith reported that he was then suffering from chronic headaches, neck pain, a lack of enthusiasm for activities such as a personal training program, finding each day a "struggle", and insomnia on two or three nights a week.

52. Mr Smith recounted how after the first incident involving a person known to have Hepatitis B and C and HIV, he was highly anxious he might develop one of these illnesses especially Hepatitis C. In the first few months after this incident he said it was "pretty hectic" and he felt stressed. He did not sleep well. He became depressed, moody and angry and did in fact see a clinical psychologist after the first incident. Mr Smith later sought further psychological treatment after separation from his wife. Another stress was that of being under private investigation.

53. Dr Saboisky described examining "a very fit man in no obvious physical or emotional distress" whom he diagnosed as having a mild chronic pain syndrome related to his neck and a mild secondary adjustment disorder to the pain (Exhibit R4). Mr Smith's major condition had been a significant adjustment reaction to the loss of his second marriage. Dr Saboisky accepted that this was the result of a number of factors including some related to his employment. Although Mr Smith said that he was in a "dark hole" there was nothing clinically to suggest a depressive disorder.

54. In his oral evidence, Dr Saboisky agreed that exposure to blood borne infections could well have caused severe anxiety. However this did not appear to have had a lasting effect as Mr Smith had been treated and returned to playing rugby league within six weeks.

55. Dr Saboisky did not believe that there was any underlying psychological condition nor any current psychiatric condition. Some of Mr Smith's psychological injuries were a result of both the incidents but they were insufficient to cause a protracted period of time off work. At the time of examination he was fit for a whole range of duties which did not involve combative situations. There was no reason why he could not work.

Dr Fraser

56. Mr Smith presented as a depressed but anxious man when he first visited psychologist Dr Fraser on 13 October 1999. He was having difficulty sleeping, experiencing headaches and felt that he was moody and aggressive. He said that the possibility that he might contract AIDS or Hepatitis C had been a source of worry to him.

57. Testing revealed extremely severe depression, high levels of stress, persecutory ideas, deviation, thinking disorder and impulse expression (Exhibit A7). Dr Fraser treated Mr Smith for depression both in therapeutic sessions over a period of some months and by providing a set of audio tapes for use at home. He concluded that the assaults taken with changes in his relationship with his partner "made for severe stress and trauma". It was only in January 2000 (the time of Dr Fraser's report) that Mr Smith was "starting to move forward and to deal with the results of these occurrences".

Consideration of Issues and Findings

"Cease liability/effects" decisions

58. In many "cease liability" or "cease effects" decisions made under the Act there appears to be a misunderstanding of the nature and effect of the determination that is made and of the statutory provisions relied upon. The matters before the Tribunal include examples of this.

59. In Re Carson and Telstra Corporation (2001) 33 AAR 351 Deputy President Estcourt stated

"49. It would only be a rare case where a reconsideration of the substantive determination under s.14 that Comcare was liable to pay compensation in accordance with the Act would be warranted. Such a case might arise, for example, if it was subsequently discovered that the injury had never in fact occurred or that the person claiming was never in fact an employee.

50. In such a case a reconsideration of the s.14 determination under s.62 resulting in a revocation would surely carry with it the result that no future claims in respect of that incident could properly be made, but in other cases, the revocation of a determination under relevant sections would not have the effect of preventing altogether further or other claims for compensation.

...

55. Telstra by its determination of 21 February 1995 was not, properly understood, denying those findings implicit in the original determination, it was merely determining that, on the available medical evidence, it was no longer liable for payment of medical expenses or incapacity payments.

56. That is to say the effect of the determination that "liability in respect of this injury ceased on and from 5 February 1995" was not a decision to "cease liability" altogether or to "cease liability" under s.14, but rather a purported determination to cease the payment of compensation under s.16 and s.19 of the Act.

...

58. The conclusion I have reached, namely, that at its highest, Telstra's determination only ceased payment of compensation under s.16 and s.19 of the Act and did not effectively revoke the early determination to accept liability under s.14, thereby preventing further claims of compensation being made at a later time, is also consistent with the reasoning of the Full Court in Plumb v Comcare (1992) 39 FCR 236."

60. Implicit support for this approach is found in Lees v Comcare (1999) 29 AAR 350; 56 ALD 84, especially at [34], upon which Deputy President Estcourt relies. I agree with and adopt the views of Deputy President Estcourt.

Ceasing liability - the burden of persuasion

61. It is not particularly apt or appropriate to refer to a common law concept of a burden or onus of proof placed on a particular party in administrative proceedings in the Tribunal. However there has been a line of authority in both the courts and the Tribunal on what has been described as "the burden of persuasion" where the decision under review has concerned a "cease liability" or "cease effects" determination.

62. In Re Quinn and Australian Postal Corporation (1992) 15 AAR 519 at 525 Justice O'Connor and Mr Barbour spoke of an obligation to produce material supporting a change in circumstances

"In our view, as it is clear from the statutory intention that the respondent can only reconsider a determination when there has been a change in circumstances, it seems justifiable to expect the respondent to be able to produce material in these proceedings supporting its assertion that the applicant is no longer entitled to compensation. There is no strict burden of proof as such but there must be additional evidence to indicate that there has been such a change in circumstances."

63. Justice Jenkinson in Commonwealth v Borg (1991) 20 AAR 299n at 307 put it in these terms

"I think that the Act required on its proper construction that the delegate should not make the determination he did make unless he was persuaded that one of the entitling circumstances had on or before 28 July 1988 ceased to exist."

64. In Comcare v Nichols [1999] FCA 209 Justice Heerey said

"22. In the present case, Mrs Nichols was receiving compensation in respect of an injury (RSI) which had been found in 1985 to result in incapacity for work. Comcare contended in 1996 that she no longer suffered from RSI. Comcare therefore had to establish this fact. Perhaps more accurately, it was the Tribunal, as an administrative decision-maker, which had to satisfy itself that this was the case. It was so satisfied."

65. Nichols is consistent with the earlier authorities and is the approach I will adopt in considering the "cease liability" matters under consideration.

Cessation of liability arising from the first incident

66. It is not disputed that on 20 April 1998 Mr Smith suffered injuries arising from the first incident, namely "fracture nasal bones, partial tear (L) biceps femoris and strain to cervical spine". Comcare accepted liability for these injuries but later ceased "any ongoing liability" from 16 August 1999. The first question for the Tribunal is whether Mr Smith had ceased to suffer from these injuries by 16 August 1999 or some later date.

67. The most significant points from the evidence were

* Mr Smith had about five weeks off work as a result of the first incident, returning towards the end of May 1998 to standard custodial contact duties

* during June 1998 he commenced at Quamby where he eventually became a full-time employee until December 1998

* in July 1998 he completed a health questionnaire essentially attesting to his fitness for work

* Mr Smith appears to have missed only one game of football as a result of the incident

* his last appointment with his general practitioner about his injuries was around July 1998 and the last with his physiotherapist was in August 1998

* although he was referred by Dr Foo to Dr Speldewinde on 23 July 1998 he did not have that consultation until October 1998, and this may have been primarily for medico-legal purposes

* Drs Foo, Fuller and Eaton were still of the view that Mr Smith continued to experience the effects of the first incident during 2001

* in August 1999 Dr Kitchin expressed the opinion that the symptoms that Mr Smith was then suffering were a consequence of the first incident, although he noted that there had been a recurrence of symptoms as a result of the second incident and earlier while playing rugby league

* in December 1999 Dr Dowda considered that Mr Smith had ongoing symptoms of facet joint irritation which were probably the result of the two workplace incidents in 1998 and exacerbations through playing contact sports in the winter of 1998

* Dr Hopkins found that the effects of the injuries sustained in the first incident had long ceased by May 1999 and by September 1999 Mr Schaeffer was unable to find any objective evidence of continuing disability or incapacity

* Dr Saboisky gave evidence based on his report in August 2000 that the psychological effects of the first incident did not appear to have had a lasting effect as Mr Smith had been treated and returned to playing rugby league within six weeks.

68. On the basis of this evidence, in particular that concerning Mr Smith's own actions, I am satisfied that sometime during the second half of 1998 Mr Smith no longer suffered from injuries arising out of the first incident. In my view this was certainly the case by the time Comcare ceased liability on 16 August 1999. Consequently Mr Smith was no longer incapacitated for work as a result of those injuries. It follows that Comcare was no longer liable for medical expenses under section 16 and incapacity payments under section 19 of the Act in respect of those injuries.

Cessation of liability for incapacity payments arising

from the second incident

69. Again it is conceded by Comcare that Mr Smith suffered work-related injuries as a result of the second incident on 6 October 1998. Liability was accepted by Comcare for "neck sprain" and "closed fracture of one or more phalanges of foot (Right)". The latter condition is no longer in issue but liability for ongoing incapacity payments flowing from the former condition was refused beyond 8 March 1999.

(a) Is Mr Smith still injured?

70. At the hearing of this matter Mr Smith gave evidence that in January 1999 he was suffering frequent headaches, occasional dizzy spells, stiffness of the neck and was having difficulty raising his arms above head height. By October 2001 the pain was more constant, his neck felt unstable and considerably weaker and more painful. He was experiencing difficulties with his posture, and his psychological fitness and mental well-being had been affected. Mr Smith said that his condition at the time of the hearing was significantly worse than in January 1999.

71. The medical evidence tends to support the view that both at March 1999 and at the time of the hearing Mr Smith continued to suffer from injuries sustained as a result of the second incident. Most of the medical practitioners accepted that at least some of Mr Smith's conditions were related to that incident

* Dr Foo, Mr Smith's general practitioner, said that he continued to suffer from the effects of injuries from both incidents. He suffered from cervical dysfunction, anxiety and depression

* treating specialists Drs Speldewinde and Eaton noted that Mr Smith continued to suffer ongoing neck and shoulder pain, headaches, associated neck stiffness, psychological problems and loss of general quality of life

* Dr Dowda did not consider that Mr Smith's ongoing work-related condition of facet joint irritation had ceased when he saw him in December 1999

* in April 2001 Dr Fuller diagnosed mild cervical spondylosis which he believed was a direct result of the two incidents

* on the other hand Dr Kitchin attributed Mr Smith's symptoms in August 1999 to the first incident while a month later Mr Schaeffer could find no objective evidence of continuing disability.

72. Having regard to all the relevant evidence, especially that of Mr Smith and of his treating practitioners, both his general practitioner and specialists, I am not satisfied that at 8 March 1999 Mr Smith no longer exhibited "neck sprain" and its compensable sequelae (the question whether these sequelae were psychological as well as physical is considered further at paragraphs 101 to 111 below). Furthermore, neither am I able to conclude that these conditions had ceased at October 2001, the time of the hearing.

(b) Is Mr Smith still incapacitated?

73. For Mr Smith to receive incapacity payments after 8 March 1999 he must not only continue to be injured but he must be incapacitated for work as a result of the injury (section 19 of the Act).

74. Mr Smith gave evidence that at the time of the hearing his condition was significantly worse than it was January 1999. He was experiencing constant pain, weakness and instability in the neck, difficulties with his posture and psychological problems. He was thus much more restricted in the range of activities he could undertake.

75. The medical evidence on incapacity can be summarised as follows

* Dr Foo stated Mr Smith was fit for work involving no heavy lifting, regular bending or frequent work above shoulder level. He should not work in situations where he could be attacked

* Dr Speldewinde said that Mr Smith should avoid high impact situations such as rugby league or violent confrontations

* Dr Eaton stated Mr Smith could not be involved in heavy physical activity such as heavy lifting, extreme bending, prolonged sitting or standing without frequent breaks, frequent raising of the arms above shoulder level or where he might be exposed to violent physical activity. He could undertake administrative and clerical work and other sedentary office type duties

* Dr Dowda's opinion was that Mr Smith could undertake many occupations due to his experience, education and training, and which would be within his physical capabilities, but not those likely to cause severe jarring or jolting of his cervical spine

* Dr Kitchin said Mr Smith could return to "his usual custodial work" but it would be reasonable to avoid a job where there might be violent incidents

* Dr Hopkins reported that at 24 May 1999 Mr Smith could undertake lighter duties which did not involve "hands on" conflict with prisoners. If his neck remained asymptomatic after approximately six months he would be able to return to normal duties

* Dr Fuller stated that occupations involving heavy lifting or repetitive bending should be avoided

* Mr Schaeffers' opinion was that Mr Smith was fit to return to his normal pre-injury duties including work which involved the restraining of juveniles

* Dr Saboisky's said that at 3 August 2000 Mr Smith was fit for a whole range of duties which did not involve combative situations.

76. Section 4(9) of the Act provides

"A reference in this Act to an incapacity for work is a reference to an incapacity suffered by an employee as a result of an injury, being:

(a) an incapacity to engage in any work; or

(b) an incapacity to engage in work at the same level at which he or she was engaged by the Commonwealth or a licensed corporation in that work or any other work immediately before the injury happened." (emphasis added)

77. It is clear that Mr Smith is not incapacitated to engage in any work. But is he incapacitated for work "at the same level" as that in which he was previously occupied? The meaning of this phrase is somewhat unclear.

78. Mr Crowe for Mr Smith submitted

* the word "level" should not be construed in some narrow and simplistic sense such as an equivalent pay rate or a job which would produce an equivalent pay rate

* it ought to be construed in a beneficial way consonant with the purpose of the Act

* it required an examination of the nature and quality of work in question

* although there was an element of ranking involved, it would render the provisions futile if the only consideration was one of rank.

79. Ms Gabriel for Comcare pressed a narrower construction

* "level" has connotations of strata, rating and status

* to accept Mr Smith's contention would mean that a person able to undertake other work for which they had been trained would still be regarded as incapacitated.

80. However Mr Crowe disputed this second point and referred to the provisions in section 19 requiring allowance to be made for what the employee was able to earn in suitable employment.

81. In considering the concept of "incapacity for work" in the equivalent New South Wales legislation Justices Mason, Wilson, Deane and Dawson in Arnotts Snack Products Pty Ltd v Yacob (1985) 155 CLR 171 at 178 observed

"It follows that the concept of partial incapacity for work is that of reduced physical capacity, by reason of physical disability, for actually doing work in the labour market in which the employee was working or might reasonably be expected to work. Under s. 11(1), an applicant's entitlement to compensation will depend on his loss of earning power. This flows, not from the concept of partial incapacity for work, but from the nature of the express limitation which the subsection places on the amount of compensation payable." (emphasis added)

82. In Re Sabioni and Comcare (1999) 30 AAR 153 at 157; 61 ALD 305 at 307 Senior Member Dwyer accepted that the combined effect of sections 14 and 19 of the Act was similar to the NSW Legislation. There is no entitlement to compensation for incapacity for work under section 19 of the Act if there is no loss of earnings due to incapacity resulting from a compensable injury.

83. A Full Tribunal in Re Metcalf and Comcare (1998) 53 ALD 624 at 630 - 631, after referring to Arnotts, pointed out that in circumstances where an applicant is not incapacitated from engaging in any work (that is, where section 4(9)(a) does not apply), incapacity for work is to be examined against the work being undertaken immediately before the injury happened.

84. I have only discovered one case in which the phrase "at the same level" in paragraph (b) has been considered by a court or this Tribunal. In Re Prica and Comcare (1996) 44 ALD 46 at 51 a Full Tribunal said

"The reference to "level" could be construed as a reference to a grade or salary level or could be a reference to the nature of the work in the sense of its characteristics, which will include its degree of difficulty. If the former construction were adopted it would produce the apparently anomalous result that a person with severe (or moderate) disabilities would be found to lack any incapacity for work as long as they continued to occupy the same grading or earn the same salary as at the date of the injury. The anomaly would not arise under the latter construction. A finding of an incapacity itself does not necessarily result in any entitlement to periodic or lump sum compensation under the Act. There are additional requirements in ss 19, 24 and 27 concerning those issues. Hence a construction of s 4(9)(b) which permits a finding of an incapacity for work in circumstances where the applicant subsequent to an injury is engaged in light duties at their former salary does not produce any anomaly within the Act and recognises that incapacity for work is a relative concept and a matter of degree."

85. Bearing in mind the High Court's consideration in Arnotts of the concept of incapacity for work as well as the other authorities to which I have referred, I reject Ms Gabriel's narrow construction equating the word "level" with connotations of strata, rating and status. In my view it refers to the nature and quality of the work "in the sense of its characteristics", including its degree of difficulty (see Re Prica).

86. I am satisfied on the evidence that following the second incident Mr Smith was unable to undertake and was not engaged in work "at the same level" as that immediately before the incident happened. This was custodial and related duties. Since 8 March 1999 Mr Smith has tried a range of work activities as well as making various applications for employment. He gave evidence that he was restricted in the work activities he could undertake. This was supported to varying degrees by most of the medical experts.

87. In my view although Mr Smith can undertake administrative, clerical, and other similar activities, he is not fit for contact duties which might involve confrontations, violent incidents or severe jolting or jarring. He should also avoid heavy physical activity such as heavy lifting, frequent bending or frequent work above shoulder level. I am satisfied and therefore find that from 8 March 1999 Mr Smith was incapacitated for work in terms of sections 4(9) and 19 of the Act. That incapacity continued in October 2001, the time of the hearing.

(c) What constitutes suitable employment for Mr Smith?

88. As noted above a finding of incapacity in itself does not necessarily result in any entitlement to incapacity payments under the Act. This is to be assessed in accordance with the provisions of section 19, which in turn require a determination of what constitutes "suitable employment" for Mr Smith.

89. "Suitable employment" is defined in section 4(1) to mean

"(a) in the case of an employee who, on the day on which he or she was injured was a permanent employee of the Commonwealth or a licensed corporation and who did not subsequently terminate that employment - employment by the Commonwealth or the licensed corporation, as the case may be in work for which the employee is suited having regard to:

(i) the employee's age, experience, training, language and other skills;

(ii) the employee's suitability for rehabilitation or vocational retraining;

(iii) where employment is available in a place that would require the employee to change his or her place of residence - whether it is reasonable to expect the employee to change his or her place of residence; and

(iv) any other relevant matter; and

(b) in any other case - any employment (including self-employment), having regard to the matters specified in subparagraphs (a) (i), (ii), (iii) and (iv)."

90. Paragraph (b) applies to Mr Smith as he was not a permanent employee of the ACT. In other words "suitable employment" is not limited to employment by the ACT but to any employment for which he is suited having regard to the various matters set out in these subparagraphs.

91. Evidence on these factors included

* Mr Smith's relatively young age, his education to year 10 level, his previous work experience mainly in physical work with some business management

* medical opinion, particularly from Drs Speldewinde and Eaton, of appropriate rehabilitation measures for Mr Smith

* Mr Smith's unsuccessful attempts to gain long-term employment on the Gold Coast

* my finding at paragraph 87 above relying principally on medical evidence that Mr Smith is not fit for contact duties which might involve confrontations or violence, nor for heavy physical activity, but that he could engage in administrative, clerical and other similar activities.

92. On the basis of the evidence before the Tribunal I believe that in broad terms "suitable employment" for Mr Smith would be administrative, clerical and similar work without contact duties, as recommended by the various medical practitioners. Such employment should be found in the ACT and surrounding regions.

(d) What is Mr Smith able to earn in suitable employment?

93. Mr Crowe suggested that having made a finding on suitable employment, I should then determine that Mr Smith's ability to earn in such employment having regard to the factors set out in section 19(4) amounted to what he had actually earned since 18 February 1999. Ms Gabriel however submitted that I did not have evidence before me that would allow detailed findings on the ability to earn. Although I accept Ms Gabriel's submission that the evidence does not allow me to go as far as Mr Crowe would like, it does permit me to make the following findings of relevance to factors in section 19(4)

* Mr Smith did not receive an offer of suitable employment after becoming incapacitated for work

* he therefore never failed to accept any such offer nor to engage or to continue to engage in that employment

* there is no evidence that after becoming incapacitated for work he received an offer of suitable employment on condition that he completed a rehabilitation or vocational retraining program

* Mr Smith did not fail to seek suitable employment after becoming incapacitated for work. Indeed the evidence indicates that he made many such attempts.

94. These findings will be binding on Comcare when it calculates the amount per week that Mr Smith is able to earn in suitable employment and assesses the level of incapacity payment for the purposes of section 19.

Liability for medical treatment and psychological counselling

95. Under section 16 of the Act where an employee suffers an injury, Comcare is liable to pay for medical treatment obtained in relation to the injury provided that it is reasonable to obtain that treatment in the circumstances. "Medical treatment" is defined in section 4(1). Justice Gray in Re Jorgensen and Commonwealth (1990) 23 ALD 321 at 325; 11 AAR 543 at 547 observed on the issue of reasonableness

"In my view, the question of reasonableness in the circumstances is intended to raise issues as to whether some kind of medical treatment other than that undertaken, or in some cases no medical treatment all, would have been better for a person suffering from the particular injury. The idea of reasonableness involves objectivity. A reference to the circumstances raises subjective factors, but they are intended to be subjective factors related to the nature of the injury, and not to details of the personal life of an applicant for compensation."

In Jorgensen the Tribunal found that IVF treatment was reasonable in the circumstances.

96. Re Kentish and Telstra Corporation Ltd [1999] AATA 661 involved vitamin and meal supplements. The Tribunal in Kentish referred to an earlier decision (Re King and Comcare (AAT 13350, 5 October 1998) and quoted the following passage from it

"(24) In determining whether a particular form of treatment is objectively reasonable, applying the test enunciated by Gray J in Jorgensen, we think allowances should be made in appropriate cases for different schools of thought within the medical profession. If a particular form of treatment is advocated by a significant minority of the medical profession, and is regarded by the majority as controversial, we do not think obtaining that form of treatment would not ordinarily be regarded as unreasonable [sic]. If, on the other hand, a patient undertakes treatment on the advice of a doctor whose views are at odds with the rest of the medical profession, one would have to conclude that it was not reasonable to obtain such treatment in the circumstances. Whether a particular form of treatment in particular circumstances enjoys sufficient support within the medical profession to be regarded as reasonable is a question of degree."

97. On 24 September 1999 Comcare decided that Mr Smith was not entitled to any further medical treatment for the second incident on the basis of medical evidence then available. This was confirmed in the reviewable decision of 8 December 1999 which also emphasised that this did not cease ongoing liability for medical treatment and Mr Smith remained free to find additional medical evidence to support claims for further medical treatment.

(a) Physical treatment

98. I have found at paragraph 72 above that both at 8 March 1999 and at October 2001 Mr Smith continued to suffer from his compensable injury of "neck sprain" and its sequelae. In both his written and oral evidence Dr Speldewinde recommended further treatment for Mr Smith including

* a supervised progressive neck and upper body strengthening program

* further involvement with a clinical psychologist for pain management strategies and assessment (this is discussed separately below at paragraphs 101 to 114)

* diagnostic cervical zygapophyseal (facet) joint injections to determine whether a joint problem was the cause of the neck pain

* if the joint injections were positive, possible radiofrequency neurotomy.

Drs Foo, Eaton, Dowda and Fuller each supported one or more elements of this program.

99. Ms Gabriel suggested that the facet joint injections being principally diagnostic were not appropriate. Further Ms Gabriel argued that as Mr Smith had not made enquiries of doctors whether facet joint injections could be provided on Medicare he was not serious in his requirement for medical treatment. I reject these submissions. I note that Dr Dowda saw the facet joint injections as serving both diagnostic and therapeutic purposes. Even if they were only diagnostic they would still clearly fall within the province of medical treatment. Given the likely cost of the treatment program proposed (see Exhibit A11) and Mr Smith's current financial circumstances, it is hardly surprising that he had not done as suggested by Ms Gabriel.

100. The treatment recommended by Dr Speldewinde is medical treatment within the terms of the Act. It is directed at treating a compensable injury. In my opinion in view of the recommendations of Mr Smith's treating medical practitioners, it is reasonable in the circumstances for Mr Smith to undergo this treatment. I therefore find that from 24 September 1999 Mr Smith was entitled to payment of medical expenses for ongoing treatment including in particular that detailed above in paragraph 98 for his compensable injury of "neck sprain" and its sequelae.

(b) Does Mr Smith suffer from psychological sequelae?

101. In one of the decisions under review of 8 December 1999 Comcare had found that it could not be satisfied on the balance of probabilities that Mr Smith suffered a psychological condition which was either directly related or a sequelae to the neck sprain that he had suffered.

102. In evidence Mr Smith spoke of difficulties with his psychological fitness and mental well-being. However it was contended by Ms Gabriel for Comcare that any psychological or psychiatric condition that Mr Smith alleges he suffers was attributable to his feelings towards his previous employers and/or Comcare, or to his marital problems. In response Mr Crowe for Mr Smith submitted that Mr Smith's psychological condition was a consequence of a combination of a number of factors, including exposure to HIV and Hepatitis B and C, experience of chronic pain, the resulting incapacity for work and the breakup of his marriage.

103. While it is true that a number of the medical practitioners refer to the distinct negative attitude Mr Smith holds towards his previous employers and Comcare, it is also the case that many of them, Drs Foo, Speldewinde and Eaton in particular, reported psychological stress, anxiety and depression as sequelae of the "neck sprain". In Dr Eaton's view the psychological trauma was "every bit as important" as the physical trauma. At the same time he also accepted that non-medical factors were a very significant contributor to Mr Smith's condition.

104. Mr Smith was seen by Dr Fraser, a psychologist, on 19 occasions from October 1999 to January 2000. He treated him for severe depression and high levels of stress and concluded that the assaults taken with changes in his relationship with his partner "made for severe stress and trauma".

105. Dr Saboisky, the consultant psychiatrist who examined Mr Smith in August 2000 for Comcare, found him to have a mild secondary adjustment disorder to his pain. Dr Saboisky accepted that Mr Smith's major condition which he diagnosed as a significant adjustment reaction to the loss of his second marriage was the result of a number of factors including some related to his employment. Nevertheless he did not believe there was any underlying psychological condition nor any current psychiatric condition.

106. In Kirkpatrick v Commonwealth of Australia (1985) 9 FCR 36; 62 ALR 533 the Full Federal Court quoted with approval two passages from the dissenting judgment of Mason JA in Migge v Wormald Bros Industries [1972] 2 NSWLR 29, which was approved on appeal to the High Court ((1973) 47 ALJR 236)

"It has been emphasised repeatedly that questions of causation are to be resolved by the application to the facts of the case of commonsense, rather than scientific or logical theories of causation...

...

The question of causation is essentially one of fact."

107. In Ystradowen Colliery Company Ltd v Griffiths (1909) 2 KB 533 the Court, in considering the notion of incapacity which is claimed to result from an injury, said at 537

"The word 'results' there, of course does not mean 'succeeds in point of time'. It means 'succeeds as a consequence of the injury' and not I think as either the necessary, or the natural, or the probable consequence of the injury, but as the consequence in fact."

108. In Kirkpatrick the Court drew an important distinction between a psychological state causing incapacity which was the sequelae of a work caused injury, and the situation where the psychological state was merely a by-product of the compensation process, with no other connection to employment. The latter was not compensable (see also Re Rodriguez and Telstra Corporation Ltd (2001) 64 ALD 790).

109. Bearing in mind these principles I am satisfied that Mr Smith's psychological stress, anxiety and depression arose out of his employment as sequelae of the "neck sprain". His employment was operative in producing this condition. He suffered a work-related injury, which was followed by the onset of a psychological condition. He continued to suffer from this condition in October 2001 when this matter was heard.

110. In reaching this view, I again prefer the opinions of Mr Smith's treating medical practitioners and psychologist who saw Mr Smith frequently and whose evidence supports this conclusion. Comcare's psychiatrist Dr Saboisky, who examined Mr Smith on only one occasion, was not clear on this point. In his oral evidence in particular he seemed to accept that employment considerations may have played a part in Mr Smith's condition which he described as "multifactorial". I do not believe that he completely excluded the possibility of a work-related cause.

111. That non-work matters such as his marriage breakup and his resentment towards his employers may have contributed to Mr Smith's condition does not necessitate a different conclusion.

(c) Treatment for psychological sequelae

112. It follows from my finding at paragraph 109 that Comcare may be liable to pay the cost of medical treatment for Mr Smith's psychological condition under section 16 of the Act.

113. Drs Foo, Speldewinde and Eaton believe that Mr Smith requires further involvement with a clinical psychologist for a pain management program. Dr Dowda recommended counselling and Dr Fuller agreed with Drs Eaton and Dowda.

114. In my view the psychological counselling sought by Mr Smith (see for example Exhibits S3T15 and A7) clearly amounts to medical treatment as defined in section 4(1), being "therapeutic treatment obtained at the direction of a legally qualified medical practitioner" (see Comcare v Watson (1997) 73 FCR 273; 24 AAR 516; 46 ALD 481). I find that in the circumstances it is reasonable for Mr Smith to obtain this treatment.

Conclusions

115. In these matters I have made findings that lead to the following conclusions

* During the second half of 1998 Mr Smith ceased suffering from injuries arising out of the first incident. This was certainly the case by 16 August 1999 when Comcare ceased liability. Mr Smith was therefore no longer incapacitated for work as a result of those injuries and Comcare was no longer liable for medical expenses under section 16 and incapacity payments under section 19 of the Act in respect of those injuries

* Mr Smith still suffered from injuries resulting from the second incident including psychological sequelae at 8 March 1999 and continued to do so at October 2001. He remained incapacitated for work at 8 March 1999 and was still incapacitated at October 2001

* Suitable employment for Mr Smith would be administrative, clerical and similar work without contact duties. Such employment should be found in the ACT and surrounding regions

* While on the evidence it is not possible to make detailed findings on Mr Smith's ability to earn in this suitable employment, I have been able to make the findings set out at paragraph 93 to assist Comcare in its determination of this issue

* From 24 September 1999 Mr Smith was entitled to payment of medical expenses for ongoing treatment including in particular that detailed at paragraph 98 for his compensable injury of "neck sprain" and its sequelae

* Mr Smith is entitled to compensation for the cost of treatment for the psychological condition he suffers as sequelae of his neck sprain.

Decisions

116. In accordance with section 43(1) of the Act the Tribunal decides that

(1) the reviewable decision of 8 December 1999 in matter A2000/10 is affirmed

(2) the reviewable decisions of 30 September 1999 in matter A1999/424 and of 8 December 1999 in matters A 1999/461 and A2000/11 are set aside and these matters are remitted to the Respondent for reconsideration in accordance with the following directions

(a) from 8 March 1999 the Applicant continued to be incapacitated for work for the purposes of section 19 of the Act

(b) the Applicant remained incapacitated for work for the purposes of section 19 of the Act at October 2001

(c) suitable employment for the Applicant for the purposes of section 19 of the Act would be administrative, clerical and similar work, without contact duties, within the ACT and surrounding regions

(d) the Applicant did not receive an offer of suitable employment after becoming incapacitated for work as a result of the second incident, nor did he fail to accept any such offer

(e) after becoming incapacitated for work the Applicant did not receive an offer of suitable employment on condition that he completed a rehabilitation or vocational retraining program

(f) the Applicant did not fail to seek suitable employment after becoming incapacitated for work

(g) the Applicant is entitled to payment of medical expenses from 24 September 1999 for ongoing treatment including in particular that detailed at paragraph 98 of the reasons for this decision

(h) the Applicant is entitled to compensation for the cost of treatment for the psychological condition he suffers as sequelae of his neck sprain.

117. The Tribunal orders the Respondent to pay the Applicant's costs in the proceedings for which the reviewable decisions are set aside in paragraph 116 (2), as agreed or taxed.

I certify that the 117 preceding paragraphs are a true copy of the reasons for the decision herein of Mr G A Mowbray

Signed: .....................................................................................

Associate

Date/s of Hearing 3-4, 18 October 2001

Date of Decision 15 April 2002

Counsel for the Applicant Mr R Crowe

Solicitor for the Applicant Porter Parkinson & Bradfield

Counsel for the Respondent Ms L Gabriel

Solicitor for the Respondent Phillips Fox