BKSF and Comcare (Compensation)

[2019] AATA 4893

BKSF and Comcare (Compensation) [2019] AATA 4893 (14 November 2019)

Division:                  GENERAL DIVISION

File Numbers:         2016/6633, 2018/0139, 2018/0315

Re:BKSF

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:R CAMERON SENIOR MEMBER

Date:14 November 2019

Place:Melbourne

The Tribunal affirms the decision in relation to application 2016/6633 that denies liability under section 14 of the Safety, Rehabilitation and Compensation Act 1988 for the conditions of anxiety and depression.

The Tribunal affirms the decision in relation to application 2018/0139 that denies liability for medical expenses under section 16 and incapacity payments under section 19 of the Safety, Rehabilitation and Compensation Act 1988 in respect of disorder of bursae and tendons shoulder region (right) and syndromes affecting the cervical region.

The Tribunal affirms the decision in relation to application 2018/0315 that denies liability for medical expenses under section 16 and incapacity payments under section 19 of the Safety, Rehabilitation and Compensation Act 1988 in respect of lumbar sprain (right, sprain of unspecified site of hip and thigh (right) and other specified sites of knee and leg (right) (hamstring and knee).

....[sgd]....................................................................
R CAMERON SENIOR MEMBER

Catchwords

WORKERS COMPENSATION – Comcare – anxiety and depression – whether significantly contributed to by employment – somatic symptoms disorder – incapacity payments and medical expenses – applicant completely recovered from injuries – chronic pain diagnosis – conflicting diagnoses – Comcare not liable –  decisions under review affirmed

Legislation

Safety, Rehabilitation and Compensation Act 1988 (Cth)
Administrative Appeals Tribunal Act 1975 (Cth)
Corporations Act 2001 (Cth)

REASONS FOR DECISION

R CAMERON SENIOR MEMBER

14 November 2019

INTRODUCTION

1. There are three applications for review before the Tribunal.

2. The first application[1] seeks review of a decision made by Comcare (“the Respondent”) on 19 October 2016 denying liability for a claim made by BKSF (“the Applicant”) under section 14 of the Safety, Rehabilitation and Compensation Act1988 (“SRC Act”) for anxiety and depression (“the first reviewable decision”).[2]

   [1] No 2016/6633.

   [2] The first reviewable decision is document T 114 in the T documents.

3. The second application[3] seeks a review of a decision made by the Respondent on 9 January 2018 denying liability for a claim made by the Applicant for medical expenses under section 16 and incapacity payments under section 19 of the SRC Act in respect of her disorder of bursae and tendons shoulder region and syndromes affecting the cervical region (“the second reviewable decision”).[4]

   [3] No 2018/0139.

   [4] The second reviewable decision is document T 51 of the T documents.

4. The third application[5] seeks review of a decision made by the Respondent on 19 January 2018 denying liability for a claim made by the Applicant for medical expenses under section 16 and incapacity payments under section 19 of the SRC Act. This claim was in respect of right lumbar sprain, sprain of unspecified site of the hip and right thigh together with other specified sites of the knee and leg (right) (hamstring and knee) (“the third reviewable decision”).

   [5] No 2018/0315.

5. The Applicant alleges that each of these claims arose out of, or in the course of, her employment with the Australian Securities and Investments Commission (“ASIC”). At the time of the incidents she was employed as a Senior Investigator (Executive Level 1) by ASIC.[6] She left ASIC on 11 July 2011 when she was made redundant and has not engaged in full-time work since.

   [6] The Applicant had initially since 1989 been employed by the then Victorian Corporate Affairs Office until approximately February 1991. She was then permanently employed by a predecessor Commonwealth regulator to ASIC. She remained there until she was made redundant. It should be observed that she had been employed and promoted to various positions including as an investigator with what was known as the "Investigations/Enforcement/Deterrence Directorate”. She gave evidence which the Tribunal accepts, that she had been a case and/or project manager of serious, complex and significant (predominantly criminal) investigations, litigation and prosecutions. (Paragraph 3 of her witness statement. Also, she gave evidence to this effect while in the witness box.) She is no stranger to litigation and court processes including the burden of proof and the conduct of a case.

6. The Applicant alleges that each of the claims arose from incidents that occurred on two separate dates in the course of her employment with ASIC.

7. The first of these incidents occurred on 8 May 2002 at the Supreme Court of Victoria (“Supreme Court”). More detail will be given later in these reasons. However, by way of introduction, it can be summarised as resulting from her lifting and carrying a number of cardboard boxes containing court books comprised of lever arch folders, up the stairs to the first floor of the court where her employer was conducting a proceeding. The Applicant asserts that it was during the course of lifting and carrying these boxes up the stairs that the injuries which she suffered, and that are the subject of the second and third reviewable decisions, were predominantly incurred.

8. Later on the same day of 8 May 2002, whilst unloading all of the cardboard boxes at the office of her employer, her hand was crushed between the hand rail in a lift and a trolley containing boxes that had been wheeled into the lift.

9. Finally, although it did not occupy anywhere near as much time throughout the course of the hearing, there was an incident on 28 April 2010 where the Applicant slipped over in a car park in the basement of the building housing the ASIC offices where she worked. As a result of this slip, she alleges that she suffered injuries to her neck, right upper body, and shoulder together with her lower back, right hip, thigh, knee, lower leg and foot.

   THE EVIDENCE AND OTHER MATERIAL BEFORE THE TRIBUNAL

10. There was both documentary and oral evidence before the Tribunal. The documentary evidence will not be identified in full in these reasons.

11. The Applicant gave evidence by way of several witness statements and from the witness box. Additionally, the Applicant lodged an extensive Statement of Facts, Issues and Contentions that was divided into four parts with an index and attached documents.[7]    She also filed an “In-Draft and Incomplete Affidavit” dated 22 May 2019, signed on          27 May 2019, sworn to and adopted at the hearing of this proceeding on 29 May 2019.[8]

    [7] This bundle of documents formed exhibit "AT6".

    [8] Exhibit "AT7".

12. A report from Carmen Steger (the Applicant’s treating psychologist between 2002         and 2004) to her treating general practitioner Dr Gallichio was in evidence. A report from Dr Gallichio dated 24 May 2019[9] and his clinical notes from 18 July 2002 and                    1 February 2005[10] were also in evidence.

    [9] Exhibit “AT8”.

    [10] Exhibit “AT5”.

13. The Applicant also tendered three bound volumes of documents.[11]

    [11] Exhibit “AT5”.

14. Dr Reiter gave evidence by telephone. She was the only medical witness to give oral evidence. Additionally, two reports by her dated 16 May 2018 and 5 July 2018 were in evidence.[12]

    [12] Exhibits "AT2" and "AT3”.

15. The sets of documents that Comcare lodged for each application pursuant to its obligations under section 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (“the T documents”) were in evidence.

16. Statements of Facts, Issues and Contentions (“SFIC”) together with final submissions were lodged by both parties. The Tribunal read all the material tendered and has considered the evidence and submissions made by both parties.

    ISSUES BEFORE THE TRIBUNAL

17. The Tribunal considers that the following issues arise from the material before it for determination.

    Application number 2016/6633

18. Has the Applicant suffered anxiety and depression which is compensable vide the application of sections 5B and 5A of the SRC Act?

19. The Applicant in her document entitled “Applicant’s In-draft Statement of Facts, Issues and Contentions” formulated two discrete issues concerning this application, with one of those issues broken into five separate sub-issues.[13]

    [13] Paragraphs 52 and 53 of that document (exhibit “AT6”) are referred to.

20. The key to the Applicant’s drafting of the issues is that she confines them to largely arising from, or being causally related to, the 8 May 2002 incident.

21. The Tribunal considers that, subject to the temporal limitation included by the Applicant of reference to the 8 May 2002 incident, the drafting of the issues in this application by the Respondent in their submissions, which incorporates references to the relevant sections of the SRC Act, is the more appropriate format to adopt in these reasons. Naturally, the Tribunal has taken into account the drafting and formulation of the issues as prepared by the Applicant.

    Application number 2018/0139

22. Is the Applicant entitled to incapacity payments and medical expenses in accordance with sections 19 and 20 and/or section 16 of the SRC Act in respect of:

    (a)disorders of bursae and tendons shoulder region; and

    (b)syndromes affecting the cervical region (including myofascial pain syndrome and/or fibromyalgia)?

23. The Applicant in her document entitled “Applicant’s in-draft Statement of Facts, Issues and Contentions” also formulated three discrete issues concerning this application, with one of those issues broken into three separate sub- issues.[14] An additional issue identified by the Applicant which the Tribunal will consider, was whether the Applicant continues to suffer from the accepted conditions of chronic myofascial pain syndrome and fibromyalgia in her neck, upper back and right upper quarter of her body which was significantly contributed to and caused by her employment with ASIC on 8 May 2002.[15]

    [14] Paragraphs 54 to 56 of that document (exhibit “AT6”) are referred to. They need not be reproduced for the purpose of these reasons.

    [15] Ibid paragraph 54.

24. Save as aforesaid, the only real difference between the formulation posed by the Applicant and that of the Respondent is that the Respondent has, with greater economy of expression and clarity of language, distilled the issues into a form that adopts the relevant sections of the SRC Act. The essential difference in substance between the two formulations, other than the reference to myofascial pain syndrome and fibromyalgia,        is that the Applicant confines the drafting of her issues to specific events arising on            8 May 2002. The Tribunal has considered the issues formulated by the Respondent the more appropriate ones, and they have been reproduced above.

    Application number 2018/0315

25. Is the Applicant entitled to incapacity payments and medical expenses in accordance with sections 19 and 20 and/or section 16 of the SRC Act in respect of:

    (a)lumbar sprain (right);

    (b)sprain of unspecified site of hip and thigh (right); and

    (c)sprain of other unspecified sites of knee and leg (right) (hamstring and knee)?

26. The Applicant in her document entitled “Applicant’s in-draft Statement of Facts, Issues and Contentions” also formulated three discrete issues concerning this application with one of those issues broken into four separate sub-issues.[16] An additional issue identified by the Applicant, which the Tribunal will consider, was whether the Applicant continues to suffer from the reported conditions of chronic myofascial pain syndrome and fibromyalgia in her lower back and right lower quarter of her body which was significantly contributed to and caused by her employment with ASIC on 28 April 2010.

    [16] Paragraphs 57 to 59 of that document (exhibit “AT6”) are referred to.

27. In the issues identified by the Applicant, she confines the matters for determination by the Tribunal specifically to her employment with ASIC on 28 April 2010.[17] Save for the issue concerning conditions of chronic myofascial pain syndrome and fibromyalgia, for similar reasons as outlined above concerning the two previous considerations of the issues for determination, the Tribunal prefers the approach adopted by the Respondent because it captures the relevant sections of the SRC Act.

    [17] Ibid.

    OBSERVATIONS CONCERNING THE APPLICANT’S EVIDENCE

28. It is appropriate to make some observations on the Applicant as a witness. It must be observed that the Applicant acted for herself. This does place her in a position of some disadvantage when compared with a party represented by competent solicitors and counsel, as the Respondent was in this matter. Allowance must also be made for the fact that the preponderance of the medical evidence demonstrates (as was apparent to the Tribunal during the course of the hearing) that she does suffer from several depressive and anxiety disorders, about which more will be said later in these reasons.

29. The Applicant by the same token was an intelligent and articulate woman. She had extensive experience in litigation and prosecutions. This was apparent by observing her both making submissions from the bar table, and during the course of the evidence in the witness box. Additionally, she has obtained three degrees, including in education, law, finance and accounting. The law degree was obtained from Victoria University after she had been terminated in her employment with ASIC. This was a significant achievement during much of the time frame that was under consideration by the Tribunal in the course of this hearing.

30. The Tribunal observed several disappointing features of the Applicant’s evidence in the witness box. Frequently, and unfortunately to her detriment, she would not, or could not, answer a question that was properly put to her in cross examination. One disappointing feature of the attitude she frequently adopted whilst in the witness box was that often the question was a simple straightforward one which called for a short answer (the question was not one that was particularly controversial, or confrontational, or as a layman might consider it laced with some “trick”). Often rather than give the short answer required, she would embark upon a lengthy excursion into a different subject that was irrelevant. Sometimes she would attempt to debate or argue with counsel for the Respondent when it was uncalled for and the questions were fairly and properly put to her by him. On other occasions, and also frequently, the lengthy answer or the attempt at a lengthy answer was simply in the form of a statement which did not assist either the Tribunal or her case.

31. On other occasions, her evidence was given in a loquacious manner which was unhelpful. The discursive nature of her evidence, which was frequently irrelevant, often descended into a dissertation about: working conditions at her former employer ASIC, the treatment by her from fellow employees in that organisation, staffing levels, gender inequality issues, approval of leave and various other issues that it must be repeated were completely irrelevant to the matters for determination by the Tribunal.[18]

    [18] It should also be noted that this was a feature of the Applicant’s witness statement or as it was referred to "Affidavit". It was bristling with inadmissible material mostly on the grounds that it was irrelevant, and in the nature of a submission and/or conclusory. Counsel for the Respondent quite properly objected to these portions of the statement. Rather than the Tribunal's time being significantly diverted dealing with applications concerning the admissibility of each of the offending parts of the statement the Tribunal ruled that it would only take into account those portions of it that were admissible and disregard the remainder. This should be apparent from the content of these reasons.

32. This manner of giving evidence by the Applicant continued, notwithstanding the fact that on several occasions she was warned by the Tribunal to listen to the question concerned and provide a direct answer, particularly where the question called for a short and simple response. Regrettably, these warnings were not heeded by the Applicant.

33. Another feature of her evidence that was disappointing, were tendencies to embellish and/or reconstruct. The reconstruction was often very obvious and did not reflect well upon her. By way of example, there were several occasions where doctors who had either treated and/or examined her, recorded the Applicant’s patient history. This history must have been provided by the Applicant. On those several occasions, more frequently than an occasion where there may have been an error on the part of the doctor concerned, she vociferously tackled what the doctor recorded in a way that was implausible. From time to time she boldly asserted the doctor concerned was plainly wrong. It does not appear to the Tribunal that so many doctors could have been so wrong, on so many occasions, as she asserted on oath in the witness box.

34. An example of the implausibility of the Applicant’s evidence concerning a doctor’s clinical notes emerged in cross examination concerning the claim for the injury to her hand, which was crushed in a lift at her place of employment at ASIC. Portions of Dr Gallichio’s notes and clinical records were put to her. She specifically stated a number of matters in his notes were incorrect. When probed by counsel for the respondent as to what was incorrect in the clinical records she responded: “All of them”.[19] Dr Gallichio had concluded that the bruising to the affected hand of the Applicant had dissipated. He was then only concerned with treating the Applicant’s shoulder.

    [19] Transcript 29 May 2019 P-56 is referred to. She also gave evidence the report of Dr Muirden, a Consultant Rheumatologist made on 16 September 2009 (document T 8 of the T documents in application No 2018/0139) was in part factually incorrect when he described her return to work duties as being “pre-injury”. Indeed when it was put to her that Dr Muirden had got it “badly wrong”; she replied: “Yes…” (Transcript 29 May 2019 P-82.)

35. Another example of this tendency was when the Applicant disagreed with the contents of a report dated 7 June 2007 of Senior Rehabilitation Physician Dr De Graaff from Epworth Rehabilitation. Some 12 years later she was able to say in the witness box that he was wrong and that she did not use the words ascribed to her in that report.[20] She conceded that Dr De Graaff took notes when he interviewed her during the course of a consultation. It seems implausible to suggest that again the doctor could have been so mistaken in the way that the Applicant alleges.

    [20] Transcript 29 May P-74. Dr De Graaff’s report is document T 77 of the T documents.

36. Allied with this approach on the part of the Applicant was a tendency to recall in direct speech, or almost direct speech, the content of conversations she had with several medical practitioners more than 16 years ago. Similarly, this evidence smacked of reconstruction.

37. In Consultant Orthopaedic Surgeon Mr Jackson’s report of 8 November 2003, he recorded the description of the incident at the court on 8 May 2002 given to him by the Applicant. He stated: “She could not recall specifically how many boxes she carried up the stairs.”[21] This observation is in stark contrast to the evidence that the Applicant gave in her witness statement, and orally to the Tribunal. Apart from the fact that her evidence did shift (which will be canvassed later in these reasons), she sought to describe accurately the number of boxes that she had to carry up the stairs on that day. If she was unable to recall specifically how many boxes she carried up the stairs in 2003, relatively soon after the incident in question, it seems implausible to suggest she could be so certain of the numbers in 2019.

    [21] The report of Mr Jackson is document T 36 (page 74) of the T documents in Application No 2016/6633.

1. There are other features of the Applicant’s evidence that impugn her credibility. In a “Claim for Rehabilitation and Compensation” (“the claim form”) signed by the Applicant on 11 July 2002, she states in response to question 23 of that document that there were two witnesses to her injury on 8 May 2002. Those witnesses are identified as Genevieve Philogene (“Philogene”) and Elizabeth Forde (“Forde”).[22] Later in the claim form which she admitted she signed she declared that:

   (a)the information she supplied and any attachment was true and accurate; and

   (b)that she was aware that the making of a false or misleading claim or false and misleading statement in support of that claim is punishable by law.[23]

   [22] Question 23 is on page 13 (document T 4) of the T documents.

   [23] These declarations are contained in paragraph 40 of the claim form signed by the Applicant.

2. One is of course minded to repeat that the Applicant was no stranger to litigation by this stage, and fully understood the importance of accurately completing the claim form. She conceded this. When cross-examined on this point she readily conceded that the response to question 23 was incorrect. Philogene and Forde only witnessed her hand being crushed in the lift at the ASIC offices at the end of the day when the boxes of documents were being returned there.[24] They did not observe the incident which caused her shoulder injury in the morning.[25] The response to paragraph 23 was misleading. It is also of concern to the Tribunal that in her witness statement she did not seek to correct the misleading response in paragraph 23 of the claim form.[26] Indeed, she did not even say in that statement that Philogene and Forde had witnessed anything. Someone of her experience in the realms of litigation and prosecutions would have been expected to do so. When tackled on this question in cross examination, her response was to state that the documents should not be taken in isolation, and that there was no intention or recklessness in the light of the way the form is structured, to mislead anybody.[27] The Tribunal cannot accept this explanation from someone as experienced as her in court processes and litigation, let alone anyone of her background and intelligence. It reflects again very poorly on her credibility.

   [24] Neither Philogene nor Forde gave evidence at the hearing of this application.

   [25] She acknowledged in response to questions put to her that neither Philogene nor Forde saw her unload the boxes of documents from the van in William Street and take them up to the court room (Transcript 29 May 2019 P-53. Similar questions and answers were given by the Applicant at page 68 of day one of the transcript). The Applicant's answer to question 23 conveys the impression that they did. To that extent the response was not true and accurate and at the very least was misleading.

   [26] The Applicant swore on oath that the witness statement was true and correct in every particular. (See for instance page 38 of the transcript for day four of the hearing.)

   [27] This evidence was given by the Applicant at line 47 on page 55 and lines 1 & 2 of page 56 of the transcript of day four of the hearing.

3. This did not reflect well upon her. Overall, the Applicant was not a particularly satisfactory witness. The Tribunal therefore considers that her evidence must be viewed with considerable caution.

4. For these reasons, if there is a conflict between the evidence of the Applicant, however it may have been given, and any clinical notes or a report of a medical practitioner or other healthcare professional, in the absence of some other independent corroboration supporting the Applicant’s version of events, the Tribunal prefers the entries recorded in those clinical notes or reports.

   CONSIDERATION OF THE FACTS

5. The Applicant was employed by ASIC from approximately February 1991. She continued to be an employee of ASIC until she accepted a voluntary redundancy in approximately 2011. In the later years of her employment with ASIC, as noted above, she had positions with that organisation involving investigations, subsequent litigation and prosecutions.

   The 8 May 2002 Incident

6. As noted earlier in these reasons, the Applicant was the senior investigator in a matter that had been listed for a civil trial in the Supreme Court, commencing on 8 May 2002. She described the matter as a significantly serious, complex, and particularly litigious international investigation which was vigorously contested. The trial was fixed for hearing in a large courtroom situated on the first floor of the Supreme Court building at the corner of William and Little Bourke Streets in Melbourne. Access to this court room can be obtained in one of two ways. There are a set of stairs from the ground floor of the building. Alternatively, nearby the stairwell there is a small lift.

7. The litigation in the Supreme Court that the Applicant was managing was a significant trial. As she recalled it, the case involved allegations concerning breaches of the relevant parts of the Corporations Act 2001 (Cth), concerning fundraising including a false or misleading prospectus under managed investment schemes. As a consequence of this, as is customary in litigation of that magnitude, a court book was prepared on behalf of the applicant ASIC. In this case, as in most examples of commercial litigation, the court book was assembled using lever arch folders. On this topic the Applicant’s evidence shifted from time to time. In an initial draft statement the Applicant stated that the court book comprised “just over 100” lever arch folders.[28] In a subsequent statement which was adopted by the Applicant in the witness box as true and correct in every particular, she stated that the brief of evidence, by then referred to as the court book, comprised 80 lever arch folders.

   [28] Exhibit "AT7 " at paragraph 32.

8. The Applicant’s evidence was that two copies of the court book, approximately 160 lever arch folders, were prepared for the trial listed to commence on 8 May 2002.

9. The Applicant gave evidence that in order to carry these lever arch folders to court on      8 May 2002, a variety of cardboard boxes were used. She described these cardboard boxes in various ways, and once again her evidence did shift somewhat on this topic. In one part of her statement she stated that the only storage and movable boxes available were “jumbo boxes” that had been left over by various moving contractors including “Chess”. They were said to have been recycled. On other occasions in her evidence, both in the statement and from the witness box, she stated that some of these boxes had been recycled from the rubbish of retailers and food stores nearby ASIC’s offices. Indeed, she did bring to the hearing on one day a sample of the “jumbo box” and gave a practical demonstration of how she carried the box, including upstairs, to the first floor of the Supreme Court on 8 May 2002. This included a simulation of her navigating the staircase at the Supreme Court by resting one corner of the box on the banister of the stairwell and effectively pushing it, or negotiating it up those stairs with her body guided by her arms and hands.

10. The lever arch folders concerned, including two copies of the court book, were packed into the jumbo boxes. As to whether they were packed into any other boxes it is not clear from the evidence of the Applicant. Once again her evidence on this topic shifted.

11. In paragraph 39 of her “Applicant’s In-draft and Incomplete Affidavit” which was adopted by her as true and correct in every particular, she stated that the documents were packed into 15 jumbo storage and moving boxes, whilst what she called “the working brief and additional investigator’s affidavit” comprised some 10 jumbo storage and moving boxes.    It was difficult to determine how many of the boxes were the jumbo boxes or of some other size.

12. There was also a variation in her evidence as to the weight of these documents. In the claim form she stated without qualification that they weighed between 20 and 24 kg. Also in paragraph 39 of the “Applicant’s In-draft and Incomplete Affidavit” she stated that the weights varied from approximately 17, 22 or 25 kg. She then sought to qualify that statement by saying that the majority of them were 25 kg. On the question of weight she also stated that each box contained seven to eight full ring binders.

13. On the morning of 8 May 2002, the boxes of lever arch folders were packed into a rental van that had been hired to carry the boxes to the Supreme Court. The van was driven to the Supreme Court by another male employee of ASIC. The Applicant stated that she informed the proposed driver and two other male employees that she would walk to court and meet them there. Her evidence was that the van was to travel by arrangement to the rear laneway of the court building and that the male employees would carry the boxes of documents to the courtroom concerned situated on the first floor of the William and Little Bourke Street corner of the building.

14. On her arrival at the Supreme Court, the Applicant observed that the van was not present in the laneway but had in fact been parked on William Street, between the main entrance and Little Bourke Street. She observed the two male ASIC employees unloading the boxes from the van onto the footpath. One of the male ASIC employees carried some      of the boxes up the steps of the entrance of the court and into the foyer. She stated the majority of the boxes were unloaded and left on the footpath. Upon completion of unloading with the boxes from the van the driver left to return the van to the office. She stated that the two remaining male ASIC employees disappeared without informing her. She assumed that they returned to the office. She gave evidence that at this stage she had no mobile phone or other means of communication to enable her to contact the ASIC offices to locate the male ASIC employees or obtain other assistance for the purposes of carrying the boxes to the first floor courtroom.

15. The Applicant gave evidence that she then began to pick up, by bending down, forward and lifting, each of the remaining jumbo boxes left on the footpath at the William Street frontage of the court. She then carried them into the foyer. From there she further carried them down the hallway to the area near the ground floor lift and staircase to the first floor. Some of the boxes were placed on a long seat in that hallway adjacent to the lift and staircase to the first floor. Her evidence was that at this stage she had assembled the      25 jumbo boxes in the foyer area near both the lift and stairs. She then carried four of the jumbo boxes into the lift and then placed another four on top of them. Due to the fact that the lift could only accommodate the space taken up by four of the boxes at a time, she placed two layers of four boxes in and a further box on top of the two layers, making nine boxes in all in the lift. She stated at this stage she was in great pain physically, and emotionally and mentally exhausted. She gave evidence both in her statement and from the witness box of feeling pains, strains and sprains. This pain she stated built-up and accumulated over her whole body, but especially her neck, trunk, upper arms, lower arms, elbows wrists and hands.

16. Having loaded the lift as just mentioned, the Applicant then pushed the button to the first floor. Her evidence was, that to her surprise and distress, the lift did not move. This occurred even if she was not present in the lift and pushed the button from outside.

17. Notwithstanding the pain she was in, she physically carried seven of the jumbo boxes one by one up the flight of stairs to the first floor. She gave a physical demonstration of how she undertook this task from the witness box. Her evidence was that it was a struggle because it was difficult to keep a grip with her hands on the box, and there were occasions when the box slipped from her grip. When this happened, she would rest the bottom of the box on or near her hip or else position it on the banister. She stated that she did this a few steps at a time sliding the box along the banister. She stated that throughout the process all the weight was on her right hand and shoulder. Her left hand was holding the corner of the box and she navigated her way up the staircase. It was during this process she stated that she felt her muscles “just went, they weren’t working and all I had was my bones to carry the weight of the boxes”.[29] She gave evidence that all of a sudden the lift started operating, and arrived at the first floor with the boxes inside it. She then physically, emotionally and mentally pushed herself further to, and then did, unload the boxes from the lift.

    [29] Transcript 29 May 2019 P-29 at 40.

18. As noted earlier, the Tribunal finds the Applicant’s account of this incident very difficult to accept in its entirety. There were several inconsistencies which have been noted earlier.[30] Those inconsistencies concern the number of lever arch folders and their weight. There is also the inconsistency and uncertainty about the actual boxes themselves. The Tribunal accepts that many of them were indeed the jumbo boxes. However, on her own evidence, several of them must have been boxes of a different size. These boxes were the fruit or food boxes that had been recycled from various retailers in the precincts of the ASIC offices. The Applicant was prone to embellishment or exaggeration in her evidence concerning this incident.

    [30] See, for example, paragraphs [47] to [49] of these reasons.

19. Overall, the Tribunal concludes that the weight of the boxes was not as heavy as stated by the Applicant. The Tribunal accepts the contention of the Respondent’s counsel that the number of folders and the weight of the boxes that the Applicant required to be transported do not tally.[31] If there were seven or eight full ring binders per box the weight would be substantially more than 24 kg. The contention of the Respondent is at least 35 to 40 kg. This is at odds with the contents of the claim form signed by the Applicant. Also having observed the Applicant (particularly in the course of her practical demonstration of what she said she did on the day in question) it seems more probable than not that it would be physically beyond her capacity to lift a box containing seven or eight lever arch folders which on her evidence were each filled to capacity (she described most of the folders as being “overstuffed”[32]). Also, it would be physically beyond her capacity to have lifted 25 boxes carrying seven or eight lever arch folders each in the way that she described (seven up the stairs and the remainder in various ways as described, from the footpath on William Street, through the entrance of the Court building, down the corridor onto the long bench or the floor, some into the lift and some up the stairs). It should also be noted that the Applicant gave evidence that at the time of the 8 May 2002 incident she only weighed 54 kg,[33] and to use her words was “vertically challenged”.[34] Even if the boxes were between 17 and 25 kg, they are close to half of her weight. This would seemingly be a physical impossibility for her. Counsel for the Respondent developed this argument in terms of the weight of a box containing 48 reams of standard weight paper being approximately 2.4 kg. If it were indeed seven or eight full ring binders the weight range per box would be, as contended by Counsel, between 35 to 40 kg. This contention is extremely persuasive. Certainly, whichever approach is adopted, it makes the Applicant’s account of the weight seemingly improbable. Also it does not accord with the description in the claim form.

    [31] Respondent’s submissions dated 8 July 2019 page 10.

    [32] Transcript 29 May 2019 P-45 at 40.

    [33] Insofar as it is relevant, it should be noted that Dr Reiter in her report of 16 May 2018 (exhibit "AT2") recorded that as at the date of her examination of the Applicant she weighed 67 kg.

    [34] See paragraph 111 page 33 of exhibit “AT6” "Factual Background", which document was adopted by the Applicant in the witness box and said to be true and correct in every particular.

20. Another issue of variance between the contents of the claim form and the Applicant’s evidence that arises from her description of the contents of the boxes, is the number of lever arch folders that were in fact taken to court on 8 May 2002. In describing the sequence of events in the claim form, she stated that she was required to carry a brief of evidence and a working copy each comprised of 80 lever arch folders. This is a total of 160 lever arch folders.

21. In the Applicant’s evidence from the witness box and in her statements, there was a variation from this in several respects. If each box contained seven or eight lever arch folders (even on this point evidence shifted at one stage saying there were seven or eight folders per box and then stating that there were definitely eight) and there were 25 boxes it is more probable than not that there were more than 180 lever arch folders. She also said that by the time of the hearing there was also an additional 20 lever arch folders just added to the brief. She described it as a “working brief, my copy of the brief.”[35] If this is the case it would seem there were approximately in excess of 200 lever arch folders that had to be taken to court on that day. This is in addition to the variation in her evidence about whether there were 25 or 20 jumbo boxes, and/or whether other smaller boxes recycled from local retailers had been used.

    [35] Transcript 29 May 2019 P-44 at 20.

22. As noted earlier in these reasons, the Applicant informed the Consultant Orthopaedic Surgeon Mr Jackson (which was recorded in his report of 8 November 2003) that she could not recall specifically how many boxes she carried up the stairs.[36]

    [36] Exhibit BT1, T45 page 146.

23. None of the male witnesses who accompanied the Applicant to court on 8 May 2002 made statements or gave evidence. They are witnesses who could have considerably assisted the Tribunal in determining some of these essential facts.

24. In this setting, the Tribunal cannot be confident as to the number of boxes carried by the Applicant up the stairs nor their weight. The only finding it is prepared to make is that she did carry some boxes up of an uncertain number and size, certainly not as heavy as she gave evidence of. In doing so, she did suffer some injuries as identified in her general practitioner’s (Dr Gallichio) certificate, which was in evidence before the Tribunal, which stated that she was suffering from right rotator cuff inflammation.[37]

    [37] The Certificate is document T 5 of the T documents in proceeding number 2016/6633.

25. At the conclusion of the day’s hearing at the Supreme Court, the Applicant stated that she managed to pack a handful of briefs and volumes of the lever arch folders back into several boxes using her left hand and arm. Her evidence was at this stage she was in great pain and suffering from injury and damage. She stated that her right arm and hand did not work or function and could not lift anything or take any weight. She was able to move a few jumbo boxes by leveraging them with the use of her legs outside the doors of the court room on the first floor to an area adjacent to the lift. Fortunately, she did receive assistance from male employees who were able to move the remaining boxes from the court room, take them downstairs, and then load them into the van for the return journey to the ASIC offices.

26. The second incident that is relevant to this application then occurred once the van had returned to the ASIC offices. The boxes were stacked on a trolley. The Applicant’s right hand was resting on the trolley’s rear handle. The trolley was pushed or guided from the front into the lift. It would appear it was a tight fit, and the male employee pushed the trolley from the front and the Applicant’s right hand was crushed between and underneath the lift’s hand rail and the top of the trolley’s rear handle. This incident was not canvassed a great deal in the course of evidence or in cross examination.

1. As noted earlier following these events, the Applicant’s general practitioner stated that she was unfit to work because she was suffering from right rotator cuff inflammation.           The claim form stated that she had suffered right front shoulder muscle straining and surrounding muscles including neck, back and arms. She also stated her hand muscles were bruised and strained.

2. The divergence between the medical certificate from her general practitioner and the claim form cannot be reconciled by the Tribunal. One would have expected if the Applicant had suffered from the conditions referred to in the claim form, it would have been raised with a general practitioner. The Applicant presented as someone who was always at pains to protect her position and ensure that her interests were advanced. Had she been suffering from such conditions, it seems inconceivable she would not have reported this to the doctor and ensured that it was recorded in the certificate which she knew was being furnished to her employer.

3. On 11 October 2002 the Respondent admitted that it was liable to pay compensation to the Applicant in respect of “disorders of bursae and tendons shoulder region (right) and syndromes affecting the cervical region”.[38]

   [38] Document T 11 in application number 2016/6633 in the T documents.

4. The Applicant did not work for approximately 14 months whilst further investigation, treatment, predominantly physiotherapy and a rehabilitation program was undertaken. There are many documents and evidence before the Tribunal concerning the treatment that took place whilst she was not working following the incidents on 8 May 2002. They have been considered by the Tribunal and need not be referred to further for the purposes of these reasons.

5. The Applicant returned to work in May 2004, and whilst some symptoms persisted, she was able to work full-time after a graduated return to work program was implemented.

6. Following a referral from Dr Gallichio in February 2005, the Applicant consulted a clinical psychologist Ms Steger to investigate the possibility that the Applicant may have been suffering from depression. In a report to Dr Gallichio dated 18 February 2005, Ms Steger concluded that the Applicant’s symptoms did not warrant a diagnosis of clinical depression. The grounds relied upon by her for reaching this conclusion included that the Applicant was working 24 hours per week and also attempting to complete a university degree.[39]

   [39] Exhibit “AT4”. Ms Steger had also previously assessed the Applicant is suitable for a firearms licence and produced a letter to the Firearms Licensing branch on 4 September 2003 to this effect (document T 33 in the T documents in application number 2016/6633).

7. Dr Gallichio subsequently referred the Applicant to Dr De Graaff who prepared a report dated 8 September 2005 that was in evidence. He diagnosed the applicant as having       “a fulminant myofascial pain syndrome”.[40] Interestingly, there is no reference to the cause of this syndrome being connected with the incident on  8 May 2002. Dr De Graaff prepared several other reports which were in evidence before the Tribunal and they were prepared over several years.

   [40] Document T 58 of the T documents in proceeding number 2016/6633 at page 197.

8. On 8 November 2007, the Applicant sat a five hour written examination for her university studies. During the course of such examination, she claimed an aggravation of right upper limb symptoms leading to numbness of the right hand. Between 9 November 2007 to     16 October 2008, she either worked reduced hours or no hours at all. The Applicant complained of bouts of pain in her right shoulder which were diagnosed as “acromioclavicular bursitis”. Treatment for this condition was injection with a local anaesthetic and steroids as a result of which her symptoms were completely alleviated in 2008, and later only partial improvement in 2009.

9. Dr Gallichio, in a medical certificate dated 30 September 2008, identified the Applicant’s compensable condition as “myofascial pain syndrome”. The current condition was described as “ongoing issues of the symptoms” and she was also identified as suffering from three disc protrusions. It was noted that the Applicant had already returned to work full-time and had done so for over 18 months, and was “largely self-managing” her condition. Further treatment was recommended by way of physiotherapy and other therapies including tissue, manipulation and pain control.[41]

   [41] Exhibit “AT9” page 435.

10. Dr Kenneth Muirden, a consultant rheumatologist, prepared a report on   16 September 2009 after conducting an examination of the Applicant. When asked specifically what the diagnosis of the condition from which the Applicant suffered, he identified what he said is best described as a non-specific upper limb disorder which is sometimes referred to as regional fibro myalgia.[42]

    [42] Dr Muirden's report is document T 8 in application number 2018/0139.

11. Subsequently, the Applicant lodged two further workers compensation claims for chronic pain syndrome. The claimed causes of this condition were said to be aggravation suffered while sitting the university exam and excessive computer use between April and May 2009. The Respondent denied liability for these claims. This decision was affirmed by the Administrative Appeals Tribunal on 11 November 2010. The finding of the Tribunal in that application was that the Applicant did not suffer new injuries during 2007 and 2009 as she alleged, but that her increased pain and other symptoms were exacerbations of an underlying myofascial pain syndrome resulting from the 2002 incident.

12. It should be noted that the Applicant has not claimed any medical treatment for the claimed conditions of anxiety and depression prior to this claim (which is the subject of application number 2016/6633) since 2011.

    The 28 April 2010 Incident

13. The third incident of relevance to these applications occurred on 28 April 2010. The facts are relatively uncontroversial. The Applicant, in company with another officer of ASIC, drove to the home of a witness for the purpose of procuring the signature to a witness statement to be used in an ongoing trial in the County Court of Victoria. They travelled from the ASIC offices in Melbourne, took the statement from the witness, and returned to the ASIC car park at 120 Collins Street Melbourne. Upon their return to the car park, they alighted from the car. The Applicant retrieved her handbag, a portable printer, a lever arch folder which contained the witness statement, and sundry material from the car.            The Applicant described carrying these items over her left shoulder. Just short of the entrance doors to the lift foyer area in the car park, the Applicant slipped on her right foot whilst walking through an adjacent car bay. She described her whole body flying into the air and her feet flying higher than her upper body and head. She managed to, as she described it, twist to her right side during the course of her fall backwards so as to use her upper right limb to break the fall and protect her head from striking the pavement of the car park. She stated this had the effect of breaking the impact of the fall on her upper body and head and provided the protection anticipated.

14. Her evidence was that her right upper body and limbs struck the surface pavement first, and then immediately after her lower body followed, then her legs. The lever arch folder she had been holding in her left hand finished up between her legs.

15. Subsequently, the Respondent accepted liability for “lumbar sprain (right), sprain of unspecified site of hip and thigh (right) and sprain of other specified sites of knee and leg (right) (hamstring and knee)”.

16. Mr Haig, Consultant Orthopaedic Surgeon, prepared a report on 13 December 2010, following an examination he conducted of the Applicant as a result of the 28 April 2010 incident. He concluded that it was difficult to offer a prognosis in the absence of a diagnosis. An examination of the Applicant’s right shoulder demonstrated a full range of movement. Additionally, she demonstrated a good range of back motion. He judged her lower limb capacity overall as normal. He recorded that she had been diagnosed with myofascial pain syndrome. He expressed reservations about such diagnosis for her shoulder complaint.[43]

    [43] Mr Haig’s report is document T 14 in application number 2018/0139.

17. In approximately 2012, Dr Gallichio referred the Applicant to an orthopaedic surgeon,      Mr Tran. On 8 May 2012, Mr Tran performed a right hip arthroscopy which included repair of a labral tear and excision of her right trochanteric bursa. This surgery was successful in settling the pain from the Applicant’s trochanteric bursitis and the labral tear in her right hip.[44]

    CONSIDERATION

    [44] Mr Tran’s report is document T 27 in application number 2018/0139.

    Application number 2016/6633

18. No medical practitioner gave evidence at the hearing concerning the Applicant’s claim for anxiety and depression. The evidence is solely confined to the medical reports in evidence.

19. This claim for anxiety and depression is years after the 8 May 2002 incident, and if it is an issue in this application, the 28 April 2010 incident.

20. Resolution of this question primarily depends upon a consideration of the reports of two psychiatrists. The first report is that of consultant psychiatrist Dr Tanja Mrdja-Getlinger dated 30 August 2016 (“Getlinger report”). The second report is that of Dr Jennifer Majoor dated 11 July 2017 who is also a consultant psychiatrist (“Majoor report”).[45]

    [45] Hereinafter, the report of Dr Mrdja-Getlinger will be referred to as the "Getlinger report" found at T 32 in application number 2018/0139, and the report of Dr Majoor will be referred to as the "Majoor report" found at T 35 in application number 2018/1039.

21. Prior to producing her report in August 2016, Dr Getlinger had seen the Applicant for a period of approximately three months, sometimes as frequently as once per week. Unfortunately, the Tribunal was not given any information to determine what, if any, material was provided to Dr Getlinger when she was first retained, (unlike Dr Majoor, who was provided with an extensive array of material including several other medical reports and referrals) presumably on a referral from the Applicant’s general practitioner. This would have assisted the Tribunal in that it may have enabled it to more accurately identify what Dr Getlinger had to consider when: firstly, taking a patient history from the Applicant; and secondly, considering what conditions she has suffered from and what their cause may be, particularly within the meaning of sections 5A and 5B of the SRC Act. Not having the benefit of this knowledge, and of course the capacity to have Dr Getlinger give evidence, does not assist the Tribunal.

22. Dr Getlinger identified the Applicant as having a Major Depressive and Anxiety Disorder and also Somatic Symptoms Disorder (previous Somatiform Disorder), with an abnormally exaggerated psychological (and somatic) response to the physical trauma/injury she sustained, leaving her with the limited use and reduced functioning of her neck and right arm.[46]

    [46] T 32 in application number 2018/0139.

23. The Getlinger report was obviously not prepared for the purposes of this proceeding. It is addressed to the Applicant’s general practitioner Dr Gallichio. The references to workplace incidents triggering the conditions that she has diagnosed are limited and can be found in her report under the heading “PSYCHIATRIC”. There is a brief reference to the 8 May 2002 incident which has obviously been taken from the Applicant. Dr Getlinger describes the Applicant’s account of a long journey of limited recovery, with ongoing residual pain and reduced functions of her right arm. The 28 April 2010 incident is briefly recorded as worsening the Applicant’s predicament and making her more “stressed” (anxious), leading eventually to the loss of her job. The Tribunal notes that this last observation recorded by Dr Getlinger cannot be correct as the uncontradicted evidence which the Tribunal accepts, is that the Applicant lost her job when she was made redundant. This fact, although not strictly relevant to the issues for determination by the Tribunal, does pose the question of whether the factual assumptions relied upon by         Dr Getlinger in reaching her conclusions, are necessarily correct. Without casting any professional aspersion on Dr Getlinger, it does affect the Tribunal’s view on whether or not to prefer her report over that of Dr Majoor.

24. At the time of preparing her report, Dr Majoor was provided with an extensive array of other medical reports and sundry materials. They included no less than five reports from Ms Steger, two reports from Dr Getlinger, and reports and referrals from Dr Gallichio.    This material covered the period from October 2002 until 23 October 2016.[47]

    [47] T 35 in application number 2018/1039.

25. Dr Majoor diagnosed the Applicant as suffering from a somatic symptoms disorder with predominant pain. This condition, she opined, has caused a range of somatic symptoms that are distressing, and which result in a disruption of the Applicant’s daily life. She also observed that:[48]

    [the Applicant] appears to suffer from excessive thoughts, feelings and behaviours related to her somatic symptoms, and health concerns that appear to be beyond that expected for her documented physical conditions, as shown by a persistently high level of anxiety about her health, and symptoms and excessive time and energy devoted to her symptoms and health concerns.

    [48] Ibid at page 111.

26. Unlike Dr Getlinger, Dr Majoor expressed an opinion that the Applicant does not suffer from any additional disorders, including anxiety or post-traumatic stress disorder (“PTSD”). She rationalises that the Applicant’s reported mood and anxiety symptoms are accounted for in her diagnosis of a somatic symptoms disorder. She provides reasons for reaching this conclusion, including that she does not believe that the 8 May 2002 incident satisfies Criterion A of PTSD. She further observes that under DSM-IV and 5, Criterion A stipulates the traumatic experience involves exposure to actual or threatened, death serious injury or sexual violence. As she puts it, an extreme traumatic stressor is required where there is a threat to physical integrity to self or others with an associated response of intense fear, helplessness and horror. She gave examples of when this may occur.      The Tribunal finds that none of this analysis or the examples can be applied to the experiences of the Applicant in both the 8 May 2002 incident and the 28 April 2010 incident.

27. Another reason emphasised by Dr Majoor in reaching the conclusion that the Applicant does not suffer from clinically significant major depressive, or anxiety disorders, was that the Applicant had been able to complete higher education studies with the attainment of a law degree, studying up to three subjects per semester, with results including distinctions, credits and passes. This higher level of cognitive ability, she opined, suggests that over the period of her studies, she was not experiencing significant pervasive difficulties with concentration, memory, interest, energy or motivation. An additional fact that supported this conclusion also referred to by Dr Majoor, was that in the material produced by the Applicant’s psychologist, Ms Steger, she was assessed in September 2003 as suitable to hold a gun licence.[49] This assessment suggests that there were no significant mood and anxiety issues evident during the period of her psychological therapy in the years 2002-2005.

    [49] A letter from Ms Steger to the Firearms Licensing Branch of 4 September 2003 is document number T 33 in the T documents in application number 2016/6633.

28. In the letter of instruction to Dr Majoor, a specific question was asked about whether the Applicant’s current condition was caused by one or more incidents at work by reference to the history obtained from her. Dr Majoor opined:[50]

    … it is possible that [the Applicant’s] reported workplace accidents … contributed to the development of a somatic symptoms disorder by precipitating increased attention to bodily processes and somatic symptoms and catastrophic interpretations of physical symptoms and reported injuries.

    [50] T 35 in application number 2018/1039 page 112.

29. The Tribunal prefers the conclusions and opinions expressed by Dr Majoor in her           11 July 2017 report. There are several reasons for this.

30. The starting point is, as noted above, that Dr Majoor concludes that the Applicant does not suffer from anxiety, depression or PTSD. She articulated her reasons which have been outlined above. There is a rational basis for reaching this conclusion. Those reasons included the application of relevant professional diagnostic tools and her observations about the Applicant’s capacity to undertake higher studies when she did.

31. Another reason why the Tribunal prefers the report of Dr Majoor over Dr Getlinger is that she was specifically asked to express an opinion on the Applicant’s current psychiatric condition and its causes, after having been furnished with a detailed letter of instruction together with an array of medical reports and sundry material. This was not the case, or there was no evidence that it was the case, when Dr Getlinger was retained. In this context it is not clear from Dr Getlinger’s report whether she was specifically asked to state what psychiatric conditions were presently suffered by the Applicant and whether they were caused by one or more workplace incidents as described. It appears that she was not retained to do this; rather as noted earlier,[51] her report was prepared following     a course of treatment that she undertook of the Applicant during a three month period in 2016 following a referral from the Applicant’s general practitioner.

    [51] Paragraph [86] of this Reasons for Decision.

32. Dr Majoor also considered the effect of workplace accidents on the development of the Applicant’s condition (being a somatic symptoms disorder) as she diagnosed it.            The highest she was prepared to go in expressing an opinion was that it is possible that the Applicant’s workplace accidents could have contributed to the development of the disorder the Applicant suffers from.

33. Dr Getlinger in her report does not go so far as to conclude, or express a professional opinion with appropriately formulated reasons, whether the Applicant’s condition as she diagnosed it was caused or contributed to by any of the workplace incidents concerned.   It appears more likely than not that, as noted earlier, she simply was not requested to do so.

34. There are other reasons which should also be observed to demonstrate that the Applicant does not suffer anxiety and depression which is compensable under the provisions of sections 5B and 5A of the SRC Act. It will be recalled as observed earlier, that the Applicant’s treating clinical psychologist Ms Steger concluded in February 2005[52] that the Applicant’s symptoms did not warrant a diagnosis of clinical depression. A professional assessment such as this, having been made in 2005, makes it difficult for the Tribunal to accept that in 2019 any anxiety and depression, if it is suffered by the Applicant, was caused by of the workplace incident on 8 May 2002.

    [52] Ms Steger’s report is dated 18 February 2005 and forms part of exhibit “AT4”.

35. Additionally, the Applicant has not claimed any medical treatment for the claimed conditions of anxiety and depression, prior to this claim, since 2011. This is a gap of approximately five years. If it is established that the Applicant is suffering from anxiety and depression (which the Tribunal considers she is not for the reasons articulated above) these facts alone do not establish a causal link between such conditions and either the     8 May 2002 incident or the 28 April 2010 incident.

    Application number 2018/0139 and application number 2018/0315

1. It will be recalled that these applications relate to:

   a)Firstly, disorders of the bursae and tendons shoulder region; and

   b)Syndromes affecting the cervical region (including myofascial pain syndrome and/or fibromyalgia)

   c)Secondly, lumbar sprain (right);

   d)Sprain of unspecified site of hip and thigh (right); and

   e)Sprain of other unspecified sides of knee and leg (right) (hamstring and knee).

2. These two applications will be considered together as most of the medical reports relied upon by both parties have been produced by doctors who have considered the issues arising in both of them. The two main doctors’ reports the parties relied on, and which the Tribunal will mostly consider below, are those of the Applicant’s treating general practitioner Dr Gallichio and Dr Loretta Reiter, a consultant rheumatologist (Dr De Graaff, a pain management physician who has as noted earlier treated the Applicant over many years has prepared several reports that will be referred to also).

   Dr De Graaff’s reports.

3. Dr De Graaff has treated the Applicant for many years. Indeed, it appears since approximately 2005. Several of his reports are in evidence before the Tribunal and have been considered. They need not be all specifically identified in these reasons. The most recent report from Dr De Graaff which was received in evidence is dated 26 April 2018.[53] There was also a report from Dr De Graaff dated 22 July 2010 following the 28 April 2010 incident. In his 26 April 2018 report, Dr De Graaff observes that the Applicant had significant right hip pain, which is unremitting and compounded by her mechanical back pain. He states that this pain remains at a moderate to severe level, graded at seven out of ten on a visual analogue scale. He observed that before she had her fall at work, this pain was not evident. Dr De Graaff also observed that the Applicant had ongoing neck and shoulder pain which he stated was compounded by cervicogenic headaches. Once again, he stated that this was not evident prior to her work injury (although he does not identify which work injury).

   [53] This report of Dr De Graaff forms part of the tender bundle comprising exhibit "AT6".

4. Several matters should be the subject of comment concerning Dr De Graaff’s reports and in particular his most recent one of 26 April 2018.

5. Whilst he certainly identifies the pain suffered by the Applicant, and the regions in which she experiences that pain, not to mention the level of the pain, he only says that prior to the relevant incidents at work, such pain was not evident; or as he put it in another report, she has “widespread musculoskeletal pain associated with a work related injury”.[54]        He does not go so far as to say that the incidents at work are the cause of the pain currently experienced by the Applicant.

   [54] T 33 in application number 2018/0139.

6. Dr De Graaff’s reports do not address the issues that Dr Reiter does. It is apparent that his reports were prepared as a response to the Applicant’s treating general practitioner,  Dr Gallichio, presumably following a referral. They were not prepared for the purposes     of these proceedings, and they were not prepared in response to specific letters               of instruction, asking specific questions, as was the case with the reports prepared by         Dr Reiter.

7. Additionally, Dr De Graaff rarely expressed any opinion about fibromyalgia and its characteristics as Dr Reiter does. In those reports where he does, there is some inconsistency between them. In a report to Dr Gallichio of 8 September 2005 he states that the Applicant clinically has “a fulminant myofascial pain syndrome.”[55] At best he states in one later report of 8 September 2016 that he does not consider the Applicant has fibromyalgia. He says this is because, as noted earlier, she has widespread musculoskeletal pain associated with a work-related injury in 2002, and subsequent to that a hip injury in 2010.[56] His report of 26 April 2018 does not address the question.     This inconsistency between his reports is difficult for the Tribunal to reconcile. It must be stressed this is not a criticism of Dr De Graaff. His reports and those of Dr Reiter were prepared for different purposes. Also, of course, he did not give oral evidence to the Tribunal in the course of the hearing to enable these matters to be more carefully,           or perhaps more accurately, explored in more detail.

   [55] The report of Dr De Graaff of 8 September 2005 is document T 47 in T documents in application number 2018/0139.

   [56] The report of Dr De Graaff of 8 September 2016 is document number T 33 in the T documents in application number 2018/0139.

8. Therefore, whilst the Tribunal readily accepts the content of Dr De Graaff’s several reports that are in evidence before the Tribunal as to the particular pain symptoms suffered by the Applicant from time to time, and the pain levels in various parts of her body, it cannot accept those reports as expressing an opinion as to the current cause of such pain, which is the subject of these two applications. For this reason, save and except for the matters noted earlier in this paragraph concerning the Applicant’s pain diagnosis, it otherwise will prefer the reports of Dr Reiter over those of Dr De Graaff.

9. Apart from the reports of Dr De Graaff in a consideration of the issues raised in the remaining applications, there is the evidence given by way of a more recent report dated 24 May 2019 from Dr Gallichio,[57] and two reports from Dr Reiter of 16 May 2018 and 5 June 2018. Dr Reiter was the only doctor who gave oral evidence to the Tribunal.

   [57] The report of Dr Gallichio of 24 May 2019 is exhibit “AT8”.

10. Whilst the report of Dr Gallichio of 24 May 2019 is later in time than the reports of           Dr Reiter, it will be considered first as Dr Gallichio did not give evidence whereas            Dr Reiter did give oral evidence, and was relatively extensively cross-examined by the Applicant. In the course of her evidence, she was able to express an opinion concerning the contents of Dr Gallichio’s May 2019 report.

    Dr Gallichio’s Report

11. Dr Gallichio, in his report of 24 May 2019, expresses an opinion that the symptoms suffered by the Applicant in his opinion fit mostly into Complex Regional Pain Syndrome Type 1 (“CRPS”).[58] He also opines in very definite terms that the Applicant does not have fibromyalgia. In support of this contention, he observes that this is so because there are unknown factors apart from the initial injury and other, what he defines as “modulating”, factors that include changes in work and social situation together with an obvious significant anxiety and depression issue. He did reiterate that emotional factors have always been a factor in the Applicant’s presentation, which the Applicant has found hard to accept, and management along those lines had not been welcomed. This then led to an opinion by Dr Gallichio that how much of the Applicant’s symptoms are due to the original injury (which is not specifically defined), and how much are due to her reaction,                 is unknown and impossible to quantify. He states that any clinician would attest to both factors. Further, he reports that imaging of the Applicant’s right shoulder and neck have not contributed to an outcome in diagnosis or management. It should be observed that this last conclusion is consistent with the contents of the Supplementary report prepared by Dr Reiter, in which she had the benefit of examining three MRI’s of the Applicant’s right knee (dated 13 November 2012), lumbar spine (dated 7 December 2012) and cervical spine (dated 28 October 2002).[59]

    [58] Hereinafter, Complex Regional Pain Syndrome will be referred to as "CRPS".

    [59] The Supplementary report of Dr Reiter is exhibit “AT3”.

12. Dr Gallichio observed that with respect to the pain experienced by the Applicant, how much relates to what he describes as the “original injuries” (without defining them) and how much relates to what she holds to be true about them, “is for others to determine”. The Tribunal is left to infer from this last comment that in fact Dr Gallichio is to some extent conceding that it is a matter that he is not either sufficiently expert in or it is a matter for the Tribunal to otherwise determine.

13. Further, Dr Gallichio opined that the Applicant did not always appreciate the relationship between the pain she experienced and her emotional state. Nonetheless, he considered it a major factor as he considered that the “original injury” (although he does not specify which injury or when it occurred) appeared to have caused significant anxiety and depression which has affected every aspect of her life.

14. Importantly, in the chart attached to Dr Gallichio’s report of 24 May 2019, there was the observation that CRPS most often affects one limb. Usually, this occurs after an initiating noxious event such as an injury. As will be noted later, this contention was agreed with by Dr Reiter.

    Dr Reiter’s Evidence

15. Prior to preparing both her reports, Dr Reiter was also furnished with an array of previous medical records, reports and file data.

16. Dr Reiter noted that the Applicant currently suffers from “pain that is constant and fluctuates in intensity, affecting the whole right side of her body.” She noted that the Applicant rated it as 9-10/10.[60]

    [60] The Supplementary report of Dr Reiter is exhibit “AT2”.

17. Dr Reiter concluded that the Applicant has a condition of fibromyalgia. She also noted that another of the Applicant’s treating pain specialists, Dr Lim, had diagnosed her as suffering from myofascial pain syndrome. According to Dr Reiter, myofascial pain syndrome is a subset of fibromyalgia. She reached this conclusion from having conducted a physical examination of the Applicant and applying the relevant Fibromyalgia Diagnostic Criteria.

18. Examination of her upper limbs revealed no swelling of the small joints of her hands, her wrists, elbows or shoulders. She had a full range of motion of both shoulders,[61] with reduced range of motion in all directions of her cervical spine. There was a reduced range of motion of her lumbar spine in all directions.

    [61] This finding is consistent with the findings of Consultant Orthopaedic Surgeon Mr Wearne in his report of 28 June 2011 document T 48 in the T documents in application number 2018/0315. Mr Wearne also reported that the Applicant could manage a full range of neck movement. In that report he advised that she informed him that she continues to experience pain in the region of the right buttock and groin as well as the right side of her lower abdomen.

19. Dr Reiter concluded that the Applicant had completely recovered from her right shoulder condition of bursitis. She observed that the Applicant had a full range of motion in her right shoulder on examination.

20. Additionally, Dr Reiter concluded that the Applicant had completely recovered from the injury that she sustained when she fell in the car park on 28 April 2010. The surgery to repair her right hip labrum and a bursectomy to settle her trochanteric bursitis had settled that condition. She was observed to have a good range of motion of her right hip with no tenderness of her right trochanteric bursa.

21. Therefore, Dr Reiter concluded that the Applicant’s condition of fibromyalgia, or myofascial pain syndrome, was not in her opinion due to her employment or any physical injury she sustained whilst working with ASIC. Her conclusion was that the Applicant does not continue to suffer with any work-related injuries on or from 19 April 2011.

22. In reaching her conclusions, Dr Reiter referred to several learned textbooks on rheumatology, as well as published articles. This material considered the nature of fibromyalgia and myofascial pain syndrome. In one of the limited articles she relied upon, it opined that 90% of the time, myofascial or fibromyalgia associated complaints are present prior to any injury.

23. In her oral evidence to the Tribunal she was asked several questions concerning the content of Dr Gallichio’s report of 24 May 2019. Specific contents of that report were put to her, and she was given an opportunity to express her opinion by way of response.

24. Concerning the conclusion of Dr Gallichio that the Applicant suffers from CRPS, Dr Reiter readily acknowledged that it is an accepted condition. Critically, she agreed with             Dr Gallichio that the condition relates to one limb. Usually that limb has to have suffered specific trauma. To diagnose the condition, various criteria have to be applied. When examining the Applicant, she sought responses from the Applicant in accordance with the criteria specified by the American College of Rheumatology 2010 diagnostic criteria for fibromyalgia. According to Dr Reiter, the Applicant met those criteria because she has a widespread pain index score that is greater than 7, being at 13. Further, she has a symptom severity score greater than 5, being at 8. Dr Reiter observed other symptoms consistent with that diagnosis. Therefore, she could not see how Dr Gallichio came to the conclusion that the Applicant had CRPS. She stated she could not see how he reached the conclusion he did without providing any description in his report of what he observed of the Applicant when examining her, such that it allowed him to make the diagnosis that he did.

25. Another observation made by Dr Reiter in her oral evidence to support her contention that the Applicant suffers from fibromyalgia, was that over the years the Applicant had seen several pain specialists and a rheumatologist. None of those specialists had ever suggested a diagnosis of CRPS. Concerning this, the Tribunal observes that Dr De Graaff at no time ever suggested that the Applicant was suffering from CRPS. He has treated her for well over 10 years. If it were a realistic diagnosis, one would have expected a specialist physician such as Dr De Graaff to have made that diagnosis.

26. Dr Reiter also stated that an accepted medical view if not a “gold standard by physicians” to be applied when diagnosing CRPS is what are known as the “Budapest Criteria”.[62]    She stated that the Budapest Criteria are not referred to, or applied in, Dr Gallichio’s report of 24 May 2019 in a way that was sufficient to enable a diagnosis of CRPS. There was no identification of which symptoms suffered by the Applicant satisfied the Budapest Criteria enabling a diagnosis of CRPS.

    [62] Transcript 31 May 2019 P-127 at 20-30.

27. Another matter that Dr Reiter referred to in support of her diagnosis, in the course of her oral evidence to the Tribunal, was that she has seen many patients with fibromyalgia during the course of her practice (which was over some 22 years). What she was able to say from that experience with those patients, was that they did not have any history of trauma that preceded their onset of fibromyalgia.[63] This experience is consistent with the observations made in some of the learned literature she referred to in her report, particularly that of Frederick Wolfe in a recent article in the “Journal of Rheumatology” which denied the causal association between trauma and fibromyalgia, and provided reasons for reaching that conclusion.[64]

    [63] Ibid P-128 at 5.

    [64] Exhibit “AT2”.

28. Dr Reiter’s later report of 5 June 2018 followed on examination of MRI’s for the Applicant’s right knee, lumbar spine and cervical spine. She observed that:[65]

    [the Applicant’s] normal lumbar spine MRI and, her right knee MRI only showing mild chondral wear of the medial femorotibial compartment (early changes of degenerative joint disease, which is age-related) was in keeping with the Applicant’s condition of fibromyalgia. The minimal changes seen on the MRI of her knee would not cause her any symptoms.

    [65] Exhibit “AT3”.

29. In regard to the findings of age-related degenerative disease affecting her cervical spine, she opined that this is in keeping with a finding of a reduced range of motion in all directions in her cervical spine when she conducted the examination in May 2018.

    Consideration of these applications

30. When considering all the material, the Tribunal prefers the report of Dr Reiter. She gave oral evidence to the Tribunal during the hearing, the other doctors did not. She was of much assistance to the Tribunal and recognised her obligation to do so. She was very credible. The comments concerning Dr De Graaff are referred to and repeated.

31. The very definite opinion in Dr Gallichio’s report of 24 May 2019 that the Applicant does not have fibromyalgia is at odds with much of the earlier documentation from him in evidence before the Tribunal concerning the condition suffered by the Applicant. For instance, in a Certificate of Capacity dated 16 September 2016, he stated the Applicant’s diagnosis as based on his examination of her and other available information as “Myofascial Pain Syndrome”[66] and on 4 September 2014, he provided a report in support of an application made by the Applicant for a disability support pension. In that report he acknowledged that he had been treating the Applicant for many years. He stated that he had diagnosed the Applicant as suffering from “Fibromyalgia Syndrome”. She had done so for “years.”[67] This diagnosis in such documents is inconsistent with the contents of his report of 24 May 2019 where he states that she is not suffering from that syndrome. There is no explanation offered in his report of 24 May 2019 as to why he has changed his opinion as to the condition suffered. This failure to explain is a factor which the Tribunal considers relevant in deciding to prefer the report of Dr Reiter over Dr Gallichio.

    [66] Document T 34 in the T documents in application number 2018/0139.

    [67] There were other reports in evidence before the Tribunal where Dr Gallichio consistently stated that the Applicant had the condition of myofascial pain syndrome. Such documents include, but are not limited to, a fax from him to Comcare of 5 October 2010 (document T 13 in the T documents in application number 2018/0315), Certificate of Capacity dated 22 November 2010 (in that Certificate he opines that the Applicant’s persistent right sided back pain may be due to myofascial pain syndrome which is yet to be confirmed by a specialist) (document T 13 in the T documents in application number 2018/0139), Certificate of Capacity dated 20 December 2010 (document T 15 in the T documents in application number 2018/0139) (in that certificate he repeats that there is possibly the condition of myofascial pain syndrome to be confirmed by Dr De Graaff), letter from him to Comcare of 18 July 2011 (document T 54 in the T documents in application number 2018/0315), letter from him to Mr. Tran of 28 July 2011 (document T 57 in the T documents in application number 2018/0315), letter from him to Mr Tran of 4 August 2011 (document T 58 in the T documents in application number 2018/0315), Certificate of Capacity dated 25 November 2015 (document T 31 in the T documents in application number 2018/0139).

32. Another matter which the Tribunal considers justifies preferring the opinion of Dr Reiter over Dr Gallichio is that both doctors agree that for a condition of CRPS to be diagnosed, it must affect one limb. As both doctors agree (as does indeed the Applicant herself) she does suffer from what Dr Reiter called generalised pain,[68] which is a symptom of fibromyalgia rather than pain confined to just one limb.

    [68] Even Dr De Graaff in several of his reports referred to earlier in these reasons identified the Applicant as having pain in a number of regions not just confined to one limb.

33. Dr Reiter’s reference to the Budapest Criteria and the necessity to satisfy them to justify a diagnosis of CRPS, which was referred to above, is also a matter not addressed in         Dr Gallichio’s report. The Tribunal finds no reason not to accept the evidence of Dr Reiter, who it will be recalled, is a consultant rheumatologist of over 20 years’ experience who has worked in both private practice and that of the hospital system. We do not know to what extent Dr Gallichio has expertise concerning these conditions beyond what one would normally expect to see in general practice. Diagnosis and treatment of such conditions fall within Dr Reiter’s specialty. It would appear she has consulted many more patients with these specific conditions over her years in practice.

1. The Tribunal prefers the reasoning process of Dr Reiter, which included reference to recognised published literature on the topic of fibromyalgia. To her credit, Dr Reiter as an expert witness did produce literature, and refer to its contents, which were contrary to her contentions. However, by her reasoning process she explained why she did not accept the contentions contained in that literature. This was explored in the course of cross-examination.

2. Another point of distinction between the reports of Dr Reiter and Dr Gallichio concerns the very definite observations made by Dr Reiter concerning the good range of movement that the Applicant had in her arms, shoulders and hip. These observations were, amongst other things, relied upon by Dr Reiter in reaching the conclusion in her report that the Applicant has recovered from her right shoulder condition of bursitis, and further recovered from the injuries that she sustained when she fell in the car park. In fairness to Dr Gallichio, who it will be recalled did not give evidence at this hearing, he has produced several reports not really intended for use in this application, where he does make observations about the range of movements that the Applicant has. However, one would have expected to have seen some observation about this range of movement in the report of 24 May 2019 as he clearly knew that this report was to be tendered in evidence during the course of the hearing.

3. It should also be observed that Dr Muirden, in his report in 2009, stated that the Applicant’s condition was best described as a non-specific upper limb disorder and is sometimes referred to as regional fibromyalgia.[69] This observation of Dr Muirden is consistent with the opinion of Dr Reiter. Mr Haig’s report of 13 December 2010 also recorded that she had been diagnosed with myofascial pain syndrome although expressed some doubts about this conclusion.[70] This is also additional support for the conclusion reached by Dr Reiter.

   [69] Document T 8 in the T documents in application number 2018/0139.

   [70] Document T 14 in the T documents in application number 2018/0139.

4. Finally, there is the opinion expressed in Dr Reiter’s report, having provided a reasoning process, that the Applicant’s condition of fibromyalgia is not due to her employment with ASIC. Dr Gallichio did not express an opinion that the condition he diagnosed was caused by or arose from the Applicant’s employment with ASIC.

5. For these reasons concerning these two applications, there is simply no, or insufficient, evidence to establish that the Applicant suffered an injury arising out of or in the course of her employment with ASIC within the meaning of section 5A of the SRC Act.

6. Similarly, by reason of the foregoing consideration concerning these two applications, there is simply no, or insufficient, evidence to establish that the Applicant suffered an ailment that was contributed to, to a significant degree, by the Applicant’s employment by ASIC within the meaning of section 5B of the SRC Act.

   DECISION

   Application number 2016/6633

7. For above reasons there is simply no, or insufficient, evidence to establish that the Applicant suffered anxiety and depression arising out of or in the course of her employment with ASIC within the meaning of section 5A of the SRC Act.

8. Similarly, by reason of the foregoing consideration there is simply no, or insufficient, evidence to establish that the Applicant suffered an ailment being anxiety and depression that was contributed to, to a significant degree, by the Applicant’s employment by ASIC within the meaning of section 5B of the SRC Act.

9. Therefore, the reviewable decision in application 2016/6633 is affirmed.

   Application number 2018/0139

10. For above reasons, the Tribunal finds that the Applicant is not entitled to incapacity payments and medical expenses in accordance with sections 19 and 20 and/or 16 of the of the SRC Act as claimed by her arising from the 8 May 2002 incident in respect of:

    (a)disorders of the bursae and tendons in the shoulder region;

    (b)syndromes affecting the cervical region (including myofascial pain syndrome and/or fibromyalgia); and

    (c)conditions of chronic myofascial pain syndrome and fibromyalgia in her neck, upper back and right upper quarter of her body.

11. Therefore, the reviewable decision in this application is affirmed.

    Application number 2018/0315

12. For above reasons, the Tribunal finds that the Applicant is not entitled to incapacity payments and medical expenses in accordance with sections 19 and 20 and/or 16 of the of the SRC Act as claimed by her arising from the 28 April 2010 incident in respect of:

    (a)lumbar strain (right);

    (b)sprain of unspecified site of hip and thigh (right);

    (c)sprain of other unspecified sites of knee and leg (right) (hamstring and knee); and

    (d)chronic myofascial pain syndrome and fibromyalgia in her lower back and the right lower quarter of her body.

13. Therefore, the reviewable decision in this application is affirmed.

I certify that the preceding 144 (one hundred and forty-four) paragraphs are a true copy of the reasons for the decision herein of R Cameron, Senior Member

..[sgd].....................................................................

Associate

Dated: 14 November 2019

Dates of hearing:	8 and 9 October 2019, 27, 29, 30 and 31 May 2019
Applicant:	In person
Advocate for the Respondent:	John Wallace
Solicitors for the Respondent	Moray and Agnew Lawyers