Binno and Comcare (Compensation)
[2022] AATA 19
•12 January 2022
Binno and Comcare (Compensation) [2022] AATA 19 (12 January 2022)
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL ) ) No: 2020/3337 GENERAL DIVISION ) Re: Ninos Binno
Applicant
And: Comcare
RespondentDIRECTION
TRIBUNAL: Chris Puplick AM, Senior Member
DATE OF CORRIGENDUM: 28 January 2022
PLACE: Sydney
The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975 (Cth), to alter the text of the decision such that:
1.in the first sentence at paragraph 25, the first name that appears is replaced with ‘RC’ in that and every subsequent reference to that name;
2.in the first sentence at paragraph 25, the second name that appears is replaced with ‘RA’ in that and every subsequent reference to that name;
3.in the first sentence at paragraph 26, the first name that appears is replaced with ‘DC’ in that and every subsequent reference to that name;
4.in the first sentence at paragraph 27, the second name that appears is replaced with ‘NG’ in that and every subsequent reference to that name; and
5.in the quote at paragraph 29, the name that appears at paragraph (b) of that quote is replaced with ‘CA’ in that and every subsequent reference to that name.
.............................[sgd]......................................
Chris Puplick AM, Senior Member
Division:GENERAL DIVISION
File Number(s): 2020/3337
Re:Ninos Binno
APPLICANT
AndComcare
RESPONDENT
DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:12 January 2022
Place:Sydney
The decision under review is affirmed.
.................................[sgd].......................................
Chris Puplick AM, Senior Member
CATCHWORDS
WORKERS’ COMPENSATION – whether there are any ailments or aggravations of ailments affecting the applicant’s psychological or physical condition – whether any such ailments or aggravations of ailments have been significantly contributed to by the applicant’s employment – whether any psychological condition arose as a result of reasonable administrative action – whether injury arose out of, or in course of employment – decision affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s 29
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 5A and 14
CASES
Adelaide Stevedoring Co Ltd v Forst (1940) 64 CLR 538
Australian Postal Corporation v Lucas (1991) 33 FCR 1010
Binno and Comcare (Compensation) [2019] AATA 237
Comcare v Mooi (1996) 42 ALD 495
Hunter Valley Developments Pty Ltd and Ors v Minister for Home Affairs and Environment (1984) 3 FCR 344
Kelson v Forward (1995) 39 ALD 303
Lim v Comcare [2016] FCA 709
Lynch and Comcare [2010] AATA 38
Military Rehabilitation and Compensation Commission v May [2016] HCA 19
SECONDARY MATERIALS
Australian Human Rights Commission, Set the Standard: Report on the Independent Review into Commonwealth Parliamentary Workplaces (Summary Report, November 2021)
Australian Public Service Commission, APS Values and Code of Conduct in practice: and Statistical Manual of Mental Disorders, Fifth Edition (American Psychiatric Association, 2013)
Gordon de Brouwer, ‘Bullying and Harassment in the Public Sector in Australia: Practical Ways to lift Respect in Public Service Workplaces’, (Paper presented to Institute of Public Affairs):
REASONS FOR DECISION
Chris Puplick AM, Senior Member
10 January 2022
Mr Ninos Binno (the Applicant) was an employee of the (then) Commonwealth Department of Human Services (now Services Australia) who, on 2 November 2019 submitted a workers’ compensation claim under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act). The claim was lodged against Comcare (the Respondent).[1]
[1] Tribunal documents (T-documents) at [73].
THE CLAIM
The Applicant’s workers’ compensation claim related to claimed:
“overuse injuries upper limbs forearms wrists + hands, lumbar vertebra dysfunction, bilateral aggravation of knee degeneration, Major depressive disorder + anxiety disorder.”[2]
[2] Respondent’s Statement of Facts, Issues and Contentions dated 26 July 2021 (SFIC) at [1].
In his application, the Applicant completed a claim form as follows:[3]
[3] Ibid.
What is the condition you are claiming for?
repetitive strain injury/writters [sic] cramp and permanent hand wrist joint and tendon damage
Are you claiming for a psychological injury?
Yes – I am claiming for a psychological injury
If claiming for a physical injury or disease, which parts of your body are affected?
hands wrists and forarm [sic] tendons
What tasks were you doing when you were injured?
duties involve mainly data entry manual cash handling using a manual cash draw [sic]. using a photocopier
What happened and how were you injured?
over time I felt numbness started on the ulnar side and I had a burning all over my wrists right around the entire ligament band. I noticed a grey discoloration where my hands were in contact with the desk and keyboard bellow [sic] the base of my palms on the ulnar side. it was caused by bad workstation setup and the shear [sic] repetitive and strenuous nature of the job which mainly consisted of data entry all day. this gradually got worst [sic] and didn’t go away. initially workstation adjustments were made via HR
When did you first notice your symptoms/injury?
01/01/2009 9:00 AM
On 8 January 2020 Comcare rejected the Applicant’s claim, determining that the requirements of section 14 of the Act had not been met.[4]
[4] T-documents at 408.
On 2 April 2020 Comcare’s decision was reconsidered and affirmed.[5]
[5] T-documents at 548.
On 1 June 2020 the Applicant appealed to this Tribunal for a review of that decision and the matter was heard over four days on 29 and 30 November and 6 and 7 December 2021 using the Microsoft Teams platform, in accordance with the Tribunal’s COVID-19 protocols.
ISSUES
The claim in question involves four claimed matters (injuries):
(a)psychological condition;
(b)upper limb condition (elbow/forearm/wrist);
(c)lower limb conditions (knee/leg/ankle/foot); and
(d)lumbar spine condition.
The Respondent rightly identifies the issues which must be determined by this Tribunal under section 14 of the Act as being:
“(a) Does the applicant suffer from any ailments or aggravations of ailments affecting his mental health, knees/legs/ankles/feet, elbows/wrists/hands, and lumbar spine?
(b) Were any such ailments contributed to, to a significant degree, by the applicant’s employment with Services Australia?
(c) Did the applicant suffer any psychological condition as a result of reasonable administrative action, taken in a reasonable manner?
(d) Did the applicant suffer an injury to any of the above bodily parts which
arose out of, or in the course of, his employment with Services Australia?”[6]
[6] Respondent’s SFIC at [196].
PRELIMINARY OBSERVATION
The extraordinary complexity of matters raised in this application may best be illustrated by referring to the fact that there are reports, of one sort of another, from more than 50 separate medical or health practitioners who have been involved with this Applicant’s treatment between 2003 and 2020. There are reports from at least 17 general practitioners; 10 neurologists or neurosurgeons; six psychologists or psychiatrists; six occupational therapists; three physiotherapists; two chiropractors, four radiologists; reports from a rheumatologist, a urologist, an orthopaedic (hand) surgeon and a sports therapist.[7]
[7] The COVID-19 Special Measures Bundle of documents (COVID-19 Bundle) supplied by Comcare includes a table of over 100 separate consultation details for the Applicant at 463-465. The Tribunal acknowledges that not all these consultations necessarily pertain to matters in issue before this Tribunal.
To this must be added the reports from various clinics, medical, diagnostic and genetic centres, together with details of prescribed medications.
The Tribunal was presented with approximately 2,000 pages of documents, many being multiple copies of the same material, and the parties failed to agree to a Tribunal request for these to be reduced to an intelligible number of key documents for discussion.
The Tribunal expresses its concern that the Respondent felt it appropriate to engulf and all but overwhelm the Tribunal with the amount of material supplied, in a variety of bundles paginated and otherwise, and then, in submissions to the Tribunal make reference to significantly less than 20% of it. A little judicious editing at an early stage would have assisted the Tribunal.
The Applicant was self-represented while Comcare was represented by Counsel and three solicitors, supervisors or instructors. The hearing was conducted over four days in order to accommodate witnesses.
IMPACT OF PREVIOUS TRIBUNAL DECISION
Sometime in 2016 or 2017 the Applicant lodged a claim under the Act for compensation relating to injuries involving “lumbar spondylosis” and “mixed anxiety and depression.” These claims were rejected in an initial Comcare decision of 31 August 2017 which was subsequently affirmed by a further reconsidered decision on 11 December 2017.
The Applicant then had until 9 February 2018 to lodge an appeal in this Tribunal against that decision[8]. He failed to do so. Rather, he delayed until 10 January 2019 before making such an application and an accompanying application under subsection 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) for an extension of time to do so. The application for an extension of time was heard by me on 21 February 2019 and refused on 27 February 2019.
[8] Administrative Appeals Tribunal Act 1975 (Cth) s 29(2).
In doing so I had regard to the principles laid down in Hunter Valley Developments Pty Ltd and Others v Minister for Home Affairs and Environment[9] and held that the Applicant had provided no reasonable explanation for the delay in lodging his appeal and that, in any event, the appeal had little prospect of success.[10]
[9] (1984) 3 FCR 344.
[10] Binno and Comcare (Compensation) [2019] AATA 237 at [29]-[30].
The refusal of the extension of time had the effect of providing a final affirmation of Comcare’s decision to refuse the application as it related to that specific condition/claim.
The claim now before this Tribunal, insofar as it relates to issues concerning the Applicant’s “lumbar spine” condition appears to be exactly the same claim as was determined by Comcare in 2017. That matter is now finalised and the Comcare decision to reject liability stands.
The Applicant cannot relitigate that matter now, especially in the absence of any evidence (there being none forthcoming)[11] which differs from that under consideration in 2017. Section 33 of the AAT Act empowers the Tribunal to manage its own affairs and frees it from being bound strictly by the formal rules of evidence. Paragraph 42B(1)(c) of the Act also allows for the dismissal of an application which the Tribunal considers to be an “abuse of process” of the Tribunal. The Tribunal does not deem it appropriate to exercise such power in this instance as only the claimed lumbar spine condition would constitute such an “abuse of process” if it were re-litigated.
[11] T-documents at 136 and 524.
Therefore, the Tribunal considers it appropriate to exercise its discretionary powers under section 33 of the AAT Act to exclude from consideration in these proceedings any further reference to the lumbar spine condition on the basis that this matter has otherwise been finalised through all available appeal processes.
Although the matter of “mixed anxiety and depression” was also raised in this 2017 application the Tribunal felt it appropriate not to exclude further reference to this claimed condition in these proceedings as the claims advanced now are in many ways substantially different (or at least framed differently) from those advanced in 2019.
APPLICANT’S EMPLOYMENT HISTORY
The Applicant commenced working on a part-time basis with the then Department of Human Services (now Services Australia) in June 2006 and transferred to full-time employment in September 2009. His work entailed processing social services and Medicare claims both through direct contact with members of the public and via data entry activities. He worked in a number of different office locations for the Department, including those at Town Hall (Sydney), Chatswood, Mosman (Spit Junction) and Brookvale.
In due course there arose a number of incidents involving alleged breaches of the APS Code of Conduct by the Applicant as well as a variety of complaints on his behalf of ergonomically unsatisfactory workplace conditions and of bullying and harassment by his supervisors or colleagues.
In one instance, in 2010 the Applicant lodged a sexual harassment complaint against a colleague which was investigated and dismissed, although the colleague was found to have made inappropriate comments. The record states:
“The colleague was formally counselled and provided a letter of apology. There is no evidence that Mr Binno suffered from a psychological injury as a result of this event.”[12]
[12] Ibid at 425.
On 18 December 2018 there was an email exchange between Ms RC, the Applicant’s immediate supervisor and Ms RA, the Department’s Regional Manager (Sydney). Ms RC expressed her concerns about a telephone conversation which she had had with the Applicant early that morning.[13] The following day (19 December 2018) the Applicant provided a medical certificate of some sort which does not appear to be included in the documentation before the Tribunal.
[13] Section 71 documents at 449.
That same day Ms DC (Senior Rehabilitation Case Manager) wrote to Ms RC:
“We agree that, based on the medical information Ninos has provided and his behaviour the day before, it was a reasonable action to ask him to leave the office. You have a duty of care to him, and until we get further medical evidence/information that he is fit to be at work and able to undertake certain tasks, it is recommended that he remain off work.”[14]
[14] Ibid at 448.
It is not entirely clear when the Applicant returned to work but on 15 February 2019 the Applicant met with Ms RC and Ms NG (his previous supervisor and Ms RC’s superior) where they discussed issues of the Applicant’s work performance and his current medical condition. It appears that immediately after that meeting the Applicant left the office and did not return subsequently.[15]
[15] COVID-19 Bundle at 116, Ms NG’s Statement dated 18 November 2021 at [37] and [41].
Throughout the course of 2019[16] the Applicant was engaged in numerous counselling and performance management sessions with his immediate supervisors. The year was also marked by the Applicant making a bullying complaint against a work colleague which was investigated and dismissed[17] and himself being the subject of a complaint involving harassment and stalking for which he was issued a formal warning.[18]
[16] Respondent’s SFIC at [120]-[139].
[17] Section 71 documents at 239.
[18] Ibid at 436-437.
On 30 January 2020 the Applicant was advised by letter as follows: [19]
“Dear Mr Binno,
I am writing to you in relation to your ongoing absence from the workplace on unpaid personal leave, as well as your failures to comply with directions of the department, specifically:
(a) your communication with [Ms A] on 6 December 2019, contrary to the direction of Ms [RA] dated 15 February 2019 (Non-Communication Direction); and
(b) your further complaints of 4 and 12 December 2019, which were made contrary to the direction of Ms [CA] dated 29 November 2019 (Complaints Direction).
Your failure to abide by the Non-Communication Direction and Complaints Direction may amount to breaches of the APS Code of Conduct, which the department is currently considering whether to refer for investigation.”
[19] Supplementary T-documents (Part 3). Note that this document is unpaginated
The letter also directed the Applicant to provide advice as to his consultations with Dr Panetta and whether or not he had undertaken the treatments and further investigations in the Fitness for Duty Report which had been prepared in respect of himself on 3 October 2019.
Instead, on 19 February 2020 the Applicant forwarded a medical certificate from Dr Panetta which stated:
“Mr Ninos Binno suffers medical conditions comprising widespread and multiple musculoskeletal and resultant psychological injuries as result of repetitive misuse, overuse and alleged bullying/abuse during the conduct of his work duties 3 Centrelink officer. He is extremely unlikely to be able to ever return to any paid position for which he currently suitably trained, qualified or experienced.”[20]
[20] T-documents at 475.
The Tribunal interposes to note that Dr Panetta did not respond to a summons to provide relevant medical information to the Tribunal. It also notes that in the same letter he infers that his assessment is supported by Dr Delaney, a claim which is not sustainable.[21]
[21] Hearing Transcript dated 7 December 2021 at 30 lines 13-19.
On 3 June 2020 a further letter[22] was sent to the Applicant advising that the Department was considering termination of his employment:
“in accordance with section 29(1) of the Public Service Act 1999 (PS Act), on the grounds of non-performance of duties.”
[22] Supplementary T-documents (Part 3). Note that this document is unpaginated.
He was invited to make representations in response to this notification and, when he failed to do so, his employment was terminated by letter dated 11 June 2020, effective from that date.[23]
[23] Ibid.
THE SRC ACT
Claims for compensation are brought under the provisions of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act). Subsection 14(1) provides:
(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.
Section 5A provides:
Definition of injury
(1) In this Act:
"injury" means:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, that is 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), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee's employment.
(2) For the purposes of subsection (1) and without limiting that subsection, reasonable administrative action is taken to include the following:
(a) a reasonable appraisal of the employee's performance;
(b) a reasonable counselling action (whether formal or informal) taken in respect of the employee's employment;
(c) a reasonable suspension action in respect of the employee's employment;
(d) a reasonable disciplinary action (whether formal or informal) taken in respect of the employee's employment;
(e) anything reasonable done in connection with an action mentioned in paragraph (a), (b), (c) or (d);
(f) anything reasonable done in connection with the employee's failure to obtain a promotion, reclassification, transfer or benefit, or to retain a benefit, in connection with his or her employment.
It is also important to note that under section 5B of the Act
Definition of disease
(1) In this Act:
"disease" means:
(a) an ailment suffered by an employee; or
(b) an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee's employment by the Commonwealth or a licensee.
(2) In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee's employment by the Commonwealth or a licensee, the following matters may be taken into account:
(a) the duration of the employment;
(b) the nature of, and particular tasks involved in, the employment;
(c) any predisposition of the employee to the ailment or aggravation;
(d) any activities of the employee not related to the employment;
(e) any other matters affecting the employee's health.
This subsection does not limit the matters that may be taken into account.
(3) In this Act:
"significant degree" means a degree that is substantially more than material.
Harking back to the question of what constitutes “reasonable” practice in such circumstances, in Lynch and Comcare,[24] the Tribunal stated:
[24] [2010] AATA 38. Footnotes and citations omitted.
[104] What is “reasonable disciplinary action” must be assessed in light of the rules of conduct or behaviour which apply to and are enforceable against an employee by virtue of their employment by the Commonwealth…
…
[106] Whatever disciplinary action is to be taken must be “reasonable”. Reasonableness is a chameleon-like concept, tailored to the circumstances. As a minimum, to be reasonable the action must be lawful. What is reasonable is assessed objectively and relates to the specific conduct involved. Dr Campbell explored the concept of reasonableness in Re Georges and Telstra Corporation Ltd:
I observe that the Concise Oxford Dictionary defines the word reasonable in terms of sound [sic] of judgment, sensible, moderate, not expecting too much, ready to listen to reason, within the limits of reason, not greatly less nor more than might be expected, tolerable, fair.
[107] In addition, for “administrative [or disciplinary] action” to be reasonable, it must be established that there was nothing “untoward” about the actions involved. The actions must also not be “irrational, absurd or ridiculous”.
…
[132] Since the fairness of action is also an element of its reasonableness, there is overlap between the requirements of natural justice and the requirement that “administrative action” must be “reasonable”. Nonetheless, at least one fairness issue will be discussed at this point.
…
[136] In circumstances where allegations are based on imprecise notions such as “bullying” and “harassment” particularity may be especially important…
…
[138] Not only do the definitions of harassment differ, making it difficult for an employee to know which to apply, but they are expressed at a level of generality that requires elaboration if an employee accused of either harassment or workplace bullying is expected to comply.
Terms like “bullying and harassment” are tossed about randomly in much of the material and records before the Tribunal, which takes note of the comments of Finn J in Kelson v Forward to the effect that:
Words that have a pejorative connotation need to be used with particular care. Used inappropriately they can damage unfairly… [25]
[25] Kelson v Forward (1995) 39 ALD 303 at 314.
CONSIDERATION OF CLAIM FOR PSYCHOLOGICAL CONDITION
The medical evidence before the Tribunal establishes clearly that the Applicant exhibits and self-reports various forms of anxiety and depression, but no psychiatric condition has been diagnosed formally. The question of whether or not the manifestation of anxiety and depression goes beyond that experienced as part of the warp and weft of everyday life and spills over into a genuine psychiatric condition as recognised with DSM-5 terms, is always an open question.
Dr Lam, who appears to have been the Applicant’s principal treating General Practitioner referred him to Ms Raquel Hara, a Registered Psychologist as part of a prepared GP Mental Health Care Plan for “treatment of anxiety”. He attended Ms Hara’s clinic on 21 July 2017, but it seems that he did not connect with Ms Hara and after an initial session did not reschedule any further appointments.[26] Nevertheless Ms Hara recorded that the Applicant reported having wrist and lower back pain allegedly associated with being bullied at work. She administered a Depression, Anxiety and Stress Scales test and diagnosed that the Applicant’s results “indicated Extremely Severe Depression, Normal Anxiety and Moderate Stress.”[27] The Applicant did not return to see Ms Hara and later informed Dr Potter that:
“He has seen the most recent psychologist approximately twice in the last six months. He added the detail that the psychologist prior to the current one, ‘I didn’t like the way she was going’; ‘then requested to see a man.’”[28]
[26] COVID-19 Bundle at 153.
[27] Ibid at 152.
[28] T-documents at 281.
Dr D’Silva (Clinical Psychologist) suggested that:
“Mr Binno continues to report and display symptoms that point to the diagnosis of Mixed Anxiety and Depression (DSM V Diagnosis).[29]
…
During consultations, it has become increasing clear that Mr Binno continues to experience severe symptoms of long-term psychological illness that is considered to be of a severe nature.”[30]
[29] Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (American Psychiatric Association, 2013) (DSM-5) at 222-226.
[30] T-documents at 35-36.
Among the symptoms Dr D’Silva recorded were:
“symptoms of low mood, feelings of inadequacy, feelings of hopelessness, lack of motivation, lack of confidence, low self-esteem, extreme feelings of disappointment, disrupted and insufficient sleep (insomnia), constant emotional fatigue, drowsiness throughout the day, social avoidance, social anxiety, social isolation, lack of interest in pleasurable activities, low tolerance to stressors, excessive worry and anxiety, deterioration in memory, concentration difficulties, financial distress, physical limitations to daily household tasks such as cooking, cleaning, washing dishes, doing the laundry, vacuuming, grocery shopping etc.”[31]
[31] Ibid.
He further stated:
“Mr Binno’s psychological symptoms continue to be exacerbated and aggravated as a result [of] continual psychological impact being caused by the work-place injury that took place in 2015.”[32]
[32] Ibid.
It does not appear that Dr D’Silva conducted any psychometric or psychological tests of the Applicant and that his diagnosis is based primarily upon the self-reported symptoms of his patient. It is also unclear as to what he is referring by reference to “the work-place injury” that took place in 2015.
His diagnosis is explicitly rejected by Dr Kar (see below) in both the latter’s written statement[33] and oral evidence given to the Tribunal.
[33] T-documents at 349.
On 2 June 2021 the Applicant saw Mr Anthony (Psychologist) who issued a report to Dr Costa in which he recorded that his:
“[i]mpressions [of the Applicant’s presentation] are of Generalised Anxiety Disorder with Depression arising from employment, together with Adjustment Disorder due to ongoing pain and physical limitations from work injuries.”[34]
[34] COVID-19 Bundle at 1.
With all due respect to Mr Anthony, a report of this nature which contains neither a patient history, nor any test-based assessments and is based clearly on nothing more than the self-reported, self-analysis by a patient, is frankly of very little value or utility.
Dr Barrett (Consultant Psychiatrist) interviewed and examined the Applicant and reviewed extensive documentation. In her report of 8 April 2019, she concluded:
“Without collateral history from friends and family and treating doctors, as well as first excluding any organic causes, it is not possible to make a definitive diagnosis of Mr Binno’s condition.
…
I agree with the treating doctor that Mr Binno feels particularly stressed and anxious about his work but in my view this in part relates to his paranoid ideation about work, interacting with the likely interpersonal difficulties that arise as a consequence of his personality vulnerabilities.”[35]
[35] T-documents at 306-307.
Dr Barrett recommended that the Applicant undergo neurological assessment and, once she had considered the results from this assessment, she wrote in a subsequent report (3 October 2019):
“I note the opinion of Dr Krishnan, Neurologist, expressed in his report of 8 April 2019. However the neurologist did not have access to my report at the time of his assessment. I would still consider Mr Binno should be referred to a neurologist in regard to whether his beliefs represent some form of neuropsychiatric symptomatology and could relate to neuropsychiatric presentation of his underlying organic condition causing paranoid beliefs or increased anxiety. Further it does not seem that he has had any screening tests for genetic or congenital syndromes such as Marfan’s syndrome or the possibility of a chromosome disorder, given his appearance, or a full organic screen.
If organic issues were excluded, I consider the most likely diagnosis is either of a paranoid personality style exacerbated by stress, or a chronic delusional disorder.”[36]
[36] Ibid at 338.
Dr Potter (Psychiatrist) provided a report on 19 March 2018 in which he states:
“Mr Binno gave a poverty of at times unreliable history from a self-absorbed perspective with a focus on his debilitation, his height and pain, and the inappropriate and bullying way he has been treated by management at work.
Allowing for the above he did not give a history with the features of a clear or definitive psychiatric diagnosis.”[37]
[37] Ibid at 284.
Dr Potter’s comments reflect those of Dr Barrett when he opines that:
“The manner in which he gave his history and way of relating was consistent with a vulnerable emotional functioning with narcissistic and/or schizoid way of relating.”[38]
[38] Ibid.
Dr Kar (Consultant Psychiatrist) provided two written reports and gave oral evidence subject to cross-examination by the Applicant. In his report of 6 December 2019, based upon a review of the Applicant’s various records and a one-hour telehealth-based interview he wrote:
“Mr Binno does not have any current or active psychiatric condition. I have not found him to have any psychiatric condition as a result of his work. However, it is my opinion that he has significant issues with his personality. I have read the various reports on file. I note that his general practitioner has diagnosed him with a Major Depressive Disorder and an anxiety disorder caused by workplace bullying.[39]
…
Mr Binno has no psychiatric condition. In my opinion there has been no contribution from his employment to the causation of his diagnosis because at this time he has no diagnosis. He has certain personality attributes. Everyone has unique personality attributes. Each personality is different. Mr Binno’s personality and attitude have affected his work performance and his interpersonal relationships in the workplace. It has shaped his view towards his workplace and how he feels they have treated him. He feels bullied, however, he has no psychiatric condition at this time. At this time, he has no diagnosis.”[40]
[39] Ibid at 348.
[40] Ibid at 353.
In his subsequent report of 31 May 2021, based upon more detailed documentation supplied to him by the Respondent, he opined:
“Speaking within my speciality, after review of the information, it appears that Mr Binno has felt unhappy, angry, frustrated and stressed at different times. He has felt suspicious and paranoid about the intentions of others including management and leadership because he felt he was being treated unfairly. However, there was no evidence of a pervasive or persistent psychiatric condition.
From review of the objective file information I did not find Mr Binno to have any mental health condition contributed to, to a significant degree, by his employment with Services Australia. Mr Binno has been found by different psychiatrists to not have a pervasive or persistent psychiatric condition. He has been found to have issues with his attitude and his personality and stress from several work-related factors. His attitude is affected by his personality characteristics which had affected his interpersonal relationships at work. He has felt suspicious and felt unfairly treated.
Mr Binno has felt stressed as a result of management actions such as being counselled and given feedback about his performance or his behaviour but I found no evidence that he has suffered a depressive or anxiety condition. Mr Binno was angered when he was given feedback on his performance or conduct as he felt he was being picked up on. He was suspicious that management wanted to get rid of him and that they were trying to manage him out of the workplace. He felt he was treated unfairly by numerous persons, peers and leadership. He felt his complaints were not being heard and that the behaviours of others were excused, whereas similar behaviours when demonstrated by him were raised as concerns. He felt he was treated unfairly and discriminated against. He has repeatedly complained of feeling bullied and harassed.
Based on information that I have, I found no reason to change my opinion as expressed in my previous report. I did not find evidence that Mr Binno has had any psychological condition as a result of administrative actions.”[41]
[41] COVID-19 Bundle at 76.
As noted, Dr Kar disagreed with the assessment of Dr D’Silva and further disagreed with the assessment of Dr Barrett to the extent that he did not believe that the Applicant suffered from any diagnosed delusional disorder as per the DSM-5 criteria.[42]
[42] DSM-5 at 90-93.
To satisfy the requirements of the Act, the Applicant must show that any condition arose in the course of, or (in the case of a pre-existing condition) was aggravated by, events which took place within his general working environment and as a consequence of his employment. However, any such aggravations which might emerge in the course of reasonable administrative action (including counselling or management) and conducted in a reasonable fashion, are excluded from aetiological consideration.
However, in the first instance there must be a psychological injury.
In 1991, Burchett J made the point that, in reference to an injury:
The mere fact that the diagnosis of its medical nature may not be able to be made precisely, though obviously a factor which might militate against a finding of a causal link with employment, will not necessarily present an insuperable obstacle to such a finding. It must depend on the evidence.[43]
[43] Australian Postal Corporation v Lucas [1991] 33 FCR 1010 at [23].
It has since been established, based on the decision of the High Court in Military Rehabilitation and Compensation Commission v May[44] (May) that finding the presence of an injury does not require a specific diagnosis to that effect. In setting aside a decision of the Full Federal Court, the High Court stated:
[44] [2016] HCA 19.
[58] That is because, first, it overlooks that the Act provided that the appellant was liable to compensate in respect of “an injury” and that the focus of the Act is on “an injury”.
[59] Second, it overlooks that the Act draws an important distinction between "disease" and “injury (other than a disease)” and that “disease” and “injury (other than a disease)” are part of different limbs of the definition of “injury” in s 4(1). Each limb deals with a separate basis for something being an “injury”. That is the reason for separate questions.
[60] Third, as seen earlier, the word “injury” in “injury (other than a disease)” has a different meaning from the defined term “injury” in s 4(1) – it means “injury” in its primary sense. That necessarily requires consideration of the “precise evidence, on a fact by fact basis, concerning the nature and incidents of the physiological change”.
[61] Put another way, the proper construction of the Act recognises that an employee may genuinely complain of being unwell, but, in the context of the “injury (other than a disease)” limb of the definition of “injury”, unless that employee can satisfy the tribunal of fact that he or she has suffered an “injury” (in the primary sense of the word), s 14 of the Act will not be engaged.
[62] The “nature and incidents of the physiological [or psychiatric] change” will determine whether there was an “injury (other than a disease)”. The evidence to be adduced, of course, will vary from case to case and, where appropriate, may take into account common-sense inferences drawn from a sequence of events. To take an extreme example, the dismemberment of a limb involves a physiological change as a matter of common sense. But there must be more than an assertion by an employee that he or she feels unwell.
…
[66] The Tribunal was not satisfied on the evidence (lay and medical) that Mr May had suffered an “injury”. Some of the findings of the Tribunal are worth restating. There was no medical explanation for Mr May's “illness”, which had been described as a “subjective description of a collection of symptoms”. There was no objective evidence of Mr May suffering “vertigo” in the period following his vaccinations, nor was there any substantial pathology to explain Mr May's symptoms. For example, there was no objective evidence of Mr May's swollen tongue or dizziness, or pathology to support his account of those symptoms, apart from diarrhoea and upper respiratory tract infections, which were treated and subsequently resolved. The medical evidence indicated a lack of any pathology consistent with Mr May's symptoms, which meant that no diagnosis could be made. Mr May did not suffer from a diagnosable psychiatric disorder and no psychiatric disturbance could better account for his symptoms.
[67] Mr May asserted that he felt unwell. The Tribunal accepted that he felt unwell. But the “nature and incidents of the physiological [or psychiatric] change” suffered by Mr May were not established. There was no "injury" in the primary sense of that word.
[68] It followed that it was not established that Mr May suffered an “injury (other than a disease)”. As he suffered neither from a “disease” nor from an “injury (other than a disease)”, neither of the two separate bases of liability for which the Act provided was made out.[45]
[45] Ibid per French CJ, Kiefel, Nettle and Gordon JJ.
Gageler J, while constituting part of the majority, wrote separately that:
The Full Court was right to point out in the decision under appeal that the Act and the case law do not “preclude an injury being established on the basis of an account by a claimant of the disturbances to her or his body or mind, without the necessity for a diagnosis of a recognised medical condition, or corroborating pathology or medical opinion” and to observe that “[w]hether or not the evidence of a claimant will be sufficient, if it is not supported, corroborated or confirmed by independent medical opinion or pathology, will be a matter for the Tribunal’s satisfaction on the evidence in each particular case”.[46]
[46] Ibid at [80].
In summarising the High Court’s position, Flick J in Lim stated:
Notwithstanding the complexity of the legal and factual issues involved in the May litigation, it is respectfully considered that the following conclusions may be drawn for the purposes of the present case, namely:
·medical evidence or opinion is relevant to a finding of whether an “injury” has been suffered but is not determinative; and
·an “injury” may thus be found to have been suffered even in the absence of a clinical diagnosis of an “injury”, and in advance of any clinical diagnosis having been made. The observations of French CJ, Kiefel, Nettle and Gordon JJ (at paras [57] and [66] in particular) are not to be understood as requiring a clinical diagnosis before an “injury” can be made out);
but that:
·more is needed than a mere assertion that a claimant “feels unwell”. The fact of “injury” must be made out.
The ultimate conclusion in the May case, it is respectfully considered, largely depended upon the conclusions to be drawn from the findings of the Administrative Appeals Tribunal.[47]
[47] Lim v Comcare [2016] FCA 709 at [41].
Although decided well in advance of May, the decision of Drummond J in Mooi is still apposite in stating that:
In short, I consider that Dr Tym, in drawing a distinction between clinically significant, ie, abnormal behaviour in the circumstances of the particular patient, and behaviour which, even though unusual, can be said to fall within the range of behaviour that persons unaffected by mental disease or illness could be expected to exhibit in those same circumstances, showed a correct appreciation of what must be established before an employee could show that he was suffering from a mental condition that is compensible under s 14(1).[48]
[48] Comcare v Mooi (1996) 42 ALD 495 at [499].
While a sequence of events may sometimes be preferred to an expert medical diagnosis to establish an aliment or injury, some specific identification of a physiological (or psychological) change that can be classified as an injury (in the ordinary sense of the term) is required.[49] Something real within the body must have happened and it has to be understood sufficiently to class it either as an injury or an ailment. The Tribunal has to be persuaded that a physiological or psychological process has occurred if it is to be persuaded that an injury has been sustained. Merely for an applicant to claim that they feel unwell, or in pain is not enough. The subjective assertion that physiological or psychological change (constituting an injury) has been experienced cannot be accepted without some evidence of actual change.
[49] Adelaide Stevedoring Co Ltd v Forst (1940) 64 CLR 538. Rich ACJ (in the majority): “I do not see why a court should not begin its investigation, ie, before hearing any medical testimony, from the standpoint of the presumptive inference which this sequence of events would naturally inspire in the mind of any common-sense person uninstructed in pathology.” Dixon J (in dissent): “Tempting as it always is, particularly in matters of bodily health, to argue from a sequence of external events, such reasoning is justified only when positive knowledge or common experience supplies some adequate ground for believing that the events are naturally associated.”
As far as the Tribunal can ascertain from the evidence before it:
·the Applicant has made a number of claims and assertions about how he feels from a mental health/psychological perspective and has sought to link these conditions to issues and the environment related to his workplace;
·the Applicant has made various (sometimes contradictory) claims about suicidal ideation:
otelling Dr Khan he wanted to kill himself because of his wrist pain,[50] repeating this in his oral evidence,[51]
[50] T-documents at 237.
[51] Hearing Transcript dated 7 December 2021 at 6 lines 40-41.
odenying to Dr Barrett that he had any such intentions or plans of suicide attempts,[52] reporting “occasional suicidal thought” to Mr Anthony,[53] and
[52] T-documents at 305 and 336.
[53] COVID-19 Bundle at 1.
owriting in his own submission that his managers at work were trying “to force or even inducing a suicide attempt” on his behalf;[54]
[54] T-documents at 82.
·the Applicant has an entirely negative view of psychiatrists and psychologists, telling the Tribunal, “I don’t believe in psychologists”[55] and there is no evidence that he has ever entered into any programme of psychiatric treatment or support despite his General Practitioner’s preparation of a GP Mental Health Plan;[56]
·there are three reports purporting to provide a diagnosis which suggests that the Applicant suffers from a recognised psychological or psychiatric condition:
othat of Ms Hara is limited and contains multiple assessments some of which report “normal” conditions;
othat of Dr D’Silva offers a diagnosis is based upon self-reporting by the Applicant and is not accompanied by any independent testing or evaluation; and
othat of Mr Anthony cannot be accorded any significant weight;
·there is a report by Dr Barrett which attributes the Applicant’s condition to a matter of a paranoid personality style with perhaps delusional tendencies and further records that the Applicant “goes to the psychologist to record his side of the story”;[57]
·there is a report by Dr Potter which rejects the suggestion of any “clear or definitive psychiatric diagnosis”; and
·there are two detailed assessment reports by Dr Kar, supported by his oral testimony and tested in cross-examination that the Applicant does not suffer from any psychological or psychiatric condition suggesting that the finding of Dr D’Silva and the suggestion of Dr Barrett (delusional tendencies) are without merit.
[55] “I don't believe in psychologists because it's like every time, as I said to you guys, after the first two days of hearing all these testimonies of people with their funny little stories on their side, it made me very angry. If anything it got me depersonalised. I couldn't emotionally connect with my girlfriend for roughly two days after that.” Hearing Transcript dated 7 December 2021 at 44 lines 36-40.
[56] See subsequent discussion of Applicant’s responses to proposed treatment regimes.
[57] T-documents at 306.
Although the Applicant is not himself in any way qualified to deliver a psychiatric diagnosis, the Tribunal notes the 31 May 2021 report of Dr Kar that:
“It is most important to note that Mr Binno himself does not believe he has a psychiatric condition. He was quite clear on this at my assessment. He has similarly been clear on it to other psychiatrists. He believes he has been experiencing stress from the way he was treated by different persons at work, but he has not claimed that he has a mental health condition.”[58]
[58] COVID-19 Bundle at 77.
It may well be that the Tribunal does not need to establish that there is a formal or clinical diagnosis to the effect that the Applicant suffers from a psychological “injury”. It instead determines that what is actually before it is the positive finding, on that very point, that he does not. The mere assertion on the part of the Applicant that he suffers an injury as understood in common parlance or that his assertions should be taken to establish a potentially compensable condition are not sustainable.
Considering and weighing all the evidence before the Tribunal, the conclusion reached is that the Applicant displays certain personality traits and behavioural patterns, and that he has a profoundly negative view of and attitude towards his workplace, job and work colleagues, and to some of his treating practitioners, but these do not amount to any form of psychological injury as defined in the Act.
In this instance, the Tribunal finds that there is no psychological injury.
In light of this finding, it is not necessary, in this instance, to consider further any matters related to the Applicant’s experiences (claimed or otherwise) in the workplace nor any matters which might or might not be related to reasonable administrative action taken within that context.
However, in the event that the Tribunal is in error on this matter, it records that in the alternative, it would have found that the Applicant’s claims that he was bullied in the workplace were without merit and that the actions which he claimed constituted bullying were no more than instances of reasonable administrative actions as defined in section 5A of the Act.
As is often the case, key terms describing rights, duties and responsibilities of individuals, are spread throughout various pieces of legislation.
In terms of the Australian Public Service (APS), members are required to adhere to a Code of Practice which is set out in section 13 of the Public Service Act 1999 (Cth). Relevantly, this provides in subsection 13(3):
An APS employee, when acting in connection with APS employment, must treat everyone with respect and courtesy, and without harassment.
No further definition of the term “harassment” is provided there,[59] nor is it referenced in the section of the Act dealing with “APS Values” (section 10 of the Public Service Act).
[59] Neither the terms “bullying” or “harassment” are defined in the Interpretation section (section 7) of the Public Service Act.
In her recent report to the Federal Parliament, Set the Standard, the Sex Discrimination Commissioner adopted as her definition of bullying:
“repeated and unreasonable behaviour directed towards a worker that creates a risk to health and safety.”[60]
[60] Australian Human Rights Commission, Set the Standard: Report on the Independent Review into Commonwealth Parliamentary Workplaces (Summary Report, November 2021) at 5. There is no separate definition of harassment given, although sexual harassment is defined.
A recent paper by Dr Gordon de Brouwer,[61] a former Commonwealth Department Secretary has recently given some clear indication of how a decision-maker might approach consideration of such issues. He writes:[62]
“Workplace bullying is repeated and unreasonable behaviour directed towards a worker that creates a risk to health and safety. It does not include reasonable management action, like performance management carried out in a reasonable manner.”[63]
[61] Dr Gordon de Brouwer PSM FIPAA is National President of the Institute of Public Administration Australia and Professor of Economics at the Australian National University in the Crawford School of Public Policy and the College of Business and Economics. He was Secretary of the Commonwealth Department of Environment and Energy from 2016 to 2017.
[62] Gordon de Brouwer, ‘Bullying and Harassment in the Public Sector in Australia: Practical Ways to lift Respect in Public Service Workplaces’, (Paper presented to Institute of Public Affairs): As defined by section 789FD of the Fair Work Act 2009 (Cth).
Examples of what may constitute bullying and harassment are given on the APS website[64] and a more precise definition appears in section 789F of the Fair Work Act 2009 (Cth) which states:
[64] Australian Public Service Commission, APS Values and Code of Conduct in practice: A worker is bullied at work if:
(a) while the worker is at work in a constitutionally-covered business:
(i) an individual; or
(ii) a group of individuals;
repeatedly behaves unreasonably towards the worker, or a group of workers of which the worker is a member; and
(b) that behaviour creates a risk to health and safety.
(2) To avoid doubt, subsection (1) does not apply to reasonable management action carried out in a reasonable manner.
There is considerable evidence before the Tribunal to indicate that the Applicant had difficulties in meeting the various benchmarks for performance or productivity that were expected of an APS officer of his grade and experience and further, that he had engaged in certain behaviours towards other members of the Centrelink staff and customers which were deemed to be inappropriate.[65]
[65] Respondent’s SFIC at [61]-[139]; Statement of NG at [29], T-documents at 115.
The evidence of two of his immediate supervisors, each of whom lodged detailed written statements with the Tribunal and gave sworn evidence, tested under cross-examination substantiates, in the view of the Tribunal, their claim that the Applicant was dealt with on accordance with accepted APS policies and procedures and that the counselling which he was given was appropriate in all the circumstances.[66]
II CONSIDERATION OF CLAIMS FOR PHYSICAL CONDITIONS
[66] Statement of NG, COVID-19 Bundle at 111-116; Statement of RC, COVID-19 Bundle at 165-170; Hearing Transcript dated 30 November 2021 at 97 to 144.
Lumbar condition
The Tribunal cannot make a finding in respect of a claimed lumbar injury as it cannot consider the matter.[67]
[67] See [14]-[20] of this decision.
Having determined that the Applicant does not suffer from any psychological injury and having noted that his claim for physical injury related to his lumbar spine condition cannot be further considered, the Tribunal must turn to consideration of the two remaining claimed physical injuries related to the Applicant’s upper and lower limb conditions.
Knees, Hands and Wrists
Knees
In relation to his knees, the Applicant claims that he suffered pain and discomfort as a result of being required to get in and out of his chair on an excessive number of occasions (the Applicant claims “100-200 times a day”[68] or “at certain times every 2-5 minutes”[69]) during his work day and that (with reference to his height at 200cm) he was forced to bend to retrieve documents from various printers and fax machines.[70]
[68] Email from Applicant dated 1 March 2016, T-documents at 568.
[69] Applicant’s Statement filed 3 November 2021.
[70] Summary Report of Dr Lam, COVID-19 Bundle at 307. “[The Applicant] needs to squat his left knee to get his printer job of [sic] low printer/left knee painful”.
The Tribunal notes that the claim of “100 to 200 times a day” made in the Applicant’s written statement is not entirely consonant with his sworn evidence to the Tribunal hearing where he said “I was getting in and out of my seat, like, at least 50 times a day if not more”.[71]
[71] Hearing Transcript dated 29 November 2021 at 36 lines 41-42.
The Tribunal notes that there are numerous references to issues with either his left or right knee throughout many of the medical reports, especially those of Drs Lam and Vidalis who were his primary treating general practitioners. However, there are a number from more focussed examinations which are relevant for consideration.
The Tribunal notes that it is most unfortunate that despite a summons being issued to Dr Vidalis for production of relevant medical records, this was not responded to and no such records were forthcoming.
A report from Dr Paul (Consultant Occupational Therapist) who assessed the Applicant on 10 June 2014 states:
“He stated he has had many years of lower back pain. He stated that this started well before his time with the Department of Human Services and he stated that he has had left-sided knee pain or discomfort and when asked how long this has been present he stated it had been present ‘forever’.”[72]
[72] T-documents at 195.
The Applicant himself, when asked about his knees stated:
“My left knee, sometimes hurt when I turned to my left. I made complaints about my counters. My left knee was already injured but I wasn't using it extensively under Medicare.”[73]
[73] Hearing Transcript dated 29 November 2021 at 36 lines 37-39.
In response to a question by the Respondent, the Applicant acknowledged the existence of some left knee pain since childhood.[74] At one point he stated “[i]t was since I had the injury to my knee but - when I was a youngster.”[75]
[74] Ibid at 35 lines 25-26.
[75] Hearing Transcript dated 7 December 2021 at 44 line 44-45.
There is also evidence, in relation to lower limb functioning that the Applicant suffered problems with his left foot (paraesthesia) which stretched back over a period of at least ten years.[76]
[76] Report of Dr Yiannikas dated 23 September 2010, COVID-19 Bundle at 259.
Another Consultant Occupational Physician, Dr Khan made an assessment of the Applicant on 4 April 2017 and reported:
“Left Knee Pain:
·Mr Binno has intermittent left knee pain
·It is sharp in character
·Severity of left knee pain is 5/10, where 0/10 denotes no pain and 10/10 represents maximal pain
·Bending, squatting, standing make his left knee pain worse
·Rest helps with his left knee pain
·An episode of left knee pain can last a day
·He reported that his left knee has occasionally ‘locked up' in the past.
Past Medical History:
·Mr Binno reported that he had a history of intermittent lower back pain prior to starting work with the Australian Public Service
·He stated that previously, his lower back pain was ‘musculoskeletal’ in origin
·No prior history of forearm or wrist injury
·He acknowledged that he had a pre-existing history of left knee injury
·Diagnosed with a subdural hygroma in early 2003”.[77]
[77] T-documents at 238 and 239.
In February 2018 the Applicant was assessed by Dr Potter who reported:
“He also advised that he has problems with his left knee and left ankle as well as a numbness in his left leg and, ‘pain around the anus.’
Having giving [sic] this information he then added, ‘It’s not my main issue. I feel I can keep on going with not too much standing.’ He elaborated on this comment.”[78]
[78] Ibid at 280.
The report from Castlereagh Imaging of an MRI assessment carried out on 28 August 2020 details:
“MRI Left Knee: …Sub-acute impaction injury anterolateral aspect lateral tibial plateau
MRI Right Knee: There is no significant knee joint effusion.”[79]
[79] COVID-19 Bundle at 23.
Dr Anthony Delaney (Sports and Exercise Physician) saw the Applicant on 22 June 2021 and made a diagnosis as follows:
“KNEES Patellofemoral maltracking, chondral wear / fissures Medial and lateral knee compartments have good preservation of chondral surfaces.”[80]
[80] Ibid at 3.
The most comprehensive assessment of the Applicant in this regard is that of Dr Reza Sabetghadam (Occupational Physician) who conducted the assessment on 6 December 2019. In making his assessment Dr Sabetghadam spent at least an hour talking with the Applicant and administering a number of examinations and tests. Prior to the examination he was supplied by the Respondent with more than 60 other reports, documents or statements all of which related to the Applicant’s medical conditions and treatments.[81] He was asked to address the following questions:[82]
“2. The issue before the Tribunal is whether Comcare is liable to pay compensation under section 14 of the SRC Act in respect of ‘unspecified injury to elbow, forearm, & wrist (bilateral)’, intervertebral disc disorders’, ‘injury to knee, leg, ankle & foot (bilateral)(aggravation)’, major depressive disorder, recurrent episode’ and ‘anxiety state’ or aggravation thereof, in particular:
(a) Does the applicant suffer from any ailments or aggravations of ailments affecting his mental health, knees/legs/ankles/feet, elbows/wrists/hands, and lumbar spine?
(b) Were any such ailments contributed to, to a significant degree, by the applicant’s employment with Services Australia?
(c) Did the applicant suffer any psychological condition as a result of reasonable administrative action, taken in a reasonable manner?
(d) Did the applicant suffer an injury to any of the above bodily parts which arose out of, or in the course of, his employment with Services Australia?
3. We ask that you limit your report to the applicant’s physical ailments. We have engaged a Psychiatrist to provide an opinion with respect to any psychological/psychiatric conditions suffered.”
[81] Ibid at 106-110.
[82] Ibid at 106.
Dr Sabetghadam reported:
“Examination of cervical, thoracic and lumbar spine appeared to be unremarkable and symmetrical.
Examination of range of motion of shoulders, elbows, wrists, thumbs and fingers appeared to be unremarkable and symmetrical. The examination of both knees, hips and ankles appeared to be unremarkable and symmetrical.
The sensory, motor and reflexes examination in upper limbs and lower limbs appeared to be unremarkable and symmetrical.”[83]
[83] T-documents at 393.
The other relevant findings from Dr Sabetghadam’s report are, inter alia:[84]
[84] Ibid at 394-397.
“I noted the history provided by Mr Binno was quite inconsistent, scattered and generic. He did not report any specific accident or incident at the workplace that could cause his injuries. He was preoccupied with ergonomic assessment and occupational health and safety issues at his workplace.
…
Based on provided history, my examination and investigation results, I conclude that Mr Binno’s current condition is not an aggravation, acceleration or recurrence of pre-existing, degenerative or underlying condition. In my clinical opinion his scattered pain symptoms, widespread in upper limbs and lower back and knees, has developed in the background of underlying medical conditions and reinforced by psychosocial factors.
…
Based on evidence in medical literature, I cannot explain any causality for Mr Binno’s scattered pain symptoms in upper limbs, lower back and knees. It appeared to me, his pain symptoms has more psychosocial reinforcers and is better to be evaluated by a psychologist. I noted elements of secondary or primary gain.
Based on provided history, investigation results and my examination and AMA Guides to the Evaluation of Disease and Injury Causation, Mr Binno’s employment has not contributed to a significant degree to his causation of his symptoms. He ceased his employment on 15.02.2019 and he still suffers from the ongoing symptoms.
…
There is insufficient data in medical literature to support that the provided symptomatology describes any specific diagnosis based on ICD criteria. Based on AMA Guides to the Evaluation of Disease and Injury Causation and evidence in medical literature the office-based duties is not the cause of the symptoms.
Based on provided history, my examination, investigation results and provided reports, I conclude that Mr Binno’s employment is not contributed to a significant degree to causation of his medical condition.
…
Based on provided history, investigation results, reports of doctors, treating practitioners and rehabilitation providers and my examination and AMA Guides to the Evaluation of Disease and Injury Causation, I conclude the most significant contributing factors to Mr Binno’s non-specific scattered pain in the upper limbs, lower back and knees are psychosocial reinforcers.
…
Mr Binno’s condition would have occurred at or about this stage of his life irrespective of him being employed as a service officer with the Department of Human Services.”
The decision under review is affirmed.
I certify that the preceding 167 (one hundred and sixty -seven) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member
.................................[sgd].......................................
Associate
Dated: 12 January 2022
Date(s) of hearing: 29, 30 November 2021 and 6, 7 December 2021 Applicant: In person Counsel for the Respondent: Mr B Kelly Solicitors for the Respondent: Ms V Ginnane, Moray and Agnew Lawyers
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