Burton and Commonwealth Bank of Australia (Compensation)
[2018] AATA 3464
•14 September 2018
Burton and Commonwealth Bank of Australia (Compensation) [2018] AATA 3464 (14 September 2018)
Division:GENERAL DIVISION
File Number(s): 2016/1851 & 2016/1852
Re:Gillian Burton
APPLICANT
AndCommonwealth Bank of Australia
RESPONDENT
DECISION
Tribunal:A G Melick AO SC, Deputy President
Date:14 September 2018
Place:Hobart
The Tribunal:
(i)affirms the determination in application 2016/1851 that the respondent had no present liability to pay compensation in respect of the applicant’s physical injury; and
(ii)sets aside the determination in application 2016/1852 and in substitution determines that the applicant suffered an injury for the purposes of s 5A(1)(a) of the Safety, Rehabilitation and Compensation Act 1988, being an adjustment disorder with mixed anxiety and depressed mood, and that the respondent is liable for that injury under s 14 of that Act.
...........................[sgd]............................
A G Melick AO SC, Deputy President
CATCHWORDS
COMPENSATION – minor wrist injury – secondary psychiatric symptoms or disorder - questions of liability and compensation – wilful and false misrepresentation – exclusionary provision – whether s 7(7) of SRC Act applies – physical injury decision affirmed – psychological injury decision set aside.
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 5A, 7(7), 14
CASES
Comcare v Porter [1996] FCA 562; (1996) 70 FCR 139
Comcare v Mooi (1996) 69 FCR 439National Australia Bank v Georgoulas [2013] FCA 1412; (2013) FCR 382
REASONS FOR DECISION
A G Melick AO SC, Deputy President
14 September 2018
BACKGROUND
These proceedings arise from two claims for compensation pursuant to s 14 of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) lodged by the applicant in 2014.
The applicant commenced employment with the Commonwealth Bank of Australia (the respondent) in March 2010. The respondent is a corporation licensed under Part VIII of the SRC Act. As such, it is authorised to accept liability for and manage payments in respect of injury, loss or damage suffered by, or the death of, some or all of its employees. For the purposes of her applications to this Tribunal, she was an employee of the respondent.
At the time of the relevant incident the applicant was employed as a relieving officer. This role required her to relieve other staff at various branches of the Commonwealth Bank across North-West Tasmania as directed. The applicant was relieving at the Burnie branch on 9 January 2014 when she experienced a sharp, sudden pain in her right hand and wrist as she attempted to lift a coin bag weighing approximately 1kg out of a coin machine.
Application 2016/1851
Application 2016/1851 relates to a claim for a physical injury to the applicant’s right hand/wrist on 9 January 2014. It was not in dispute that the injury allegedly occurred when she was ‘lifting a bag of coin whilst in coin machine’. The respondent accepted liability under s 14 of the SRC Act for ‘Chronic repetitive strain (R hand / wrist)’ on 17 February 2014.
On 4 January 2016, the respondent wrote to the applicant putting her on notice that the diagnosis of the accepted condition was being reviewed and that it no longer considered that any present liability to pay weekly compensation or medical expenses existed in respect of that injury. On 12 February 2016, the respondent sent the applicant two letters in relation to her physical injury. One letter varied the respondent’s initial determination in relation to the accepted condition, changing the diagnosis of the accepted condition to ‘Tear (unconfirmed) of the right triangular fibrocartilage of right wrist’ and ‘early palmar fibromatosis in the right hand’ (Exhibit 1, pp 346-349). The other letter determined that the respondent, as at 12 February 2016, had no present liability to pay medical expenses or weekly benefits under ss 16 & 19 of the SRC Act in respect of tear (unconfirmed) of the right triangular fibrocartilage of right wrist and early palmar fibromatosis in the right hand (Exhibit 1, pp 350-353).
Application 2016/1852
The applicant also lodged a claim for compensation for ‘Major depression. Secondary to the original injury’ that was received by the respondent on 1 December 2014. This claim is the subject of application 2016/1852.
On 4 January 2016 the respondent wrote to the applicant notifying her that it had formally determined there was no liability to pay compensation in respect of ‘Pain Disorder with Mixed Anxiety and Depression’. The respondent denied liability on the basis of the exclusionary provision contained in s 7(7) of the SRC Act. The respondent affirmed its initial determination on 12 February 2016 (Exhibit 1, pp 338-345).
For the purposes of my decision it is necessary to briefly summarise the applicant’s medical history prior to the incident on 9 January 2014 that gives rise to the claims that are the subject of applications 2016/1851 and 2016/1852.
Motor Vehicle Accident in 2000
The applicant was involved in a motor vehicle accident in September 2000. On a claim form she described her injury as ‘whiplash’, ‘neck pain’, ‘back pain’ and ‘numbness in right arm’ (Exhibit 3, p 35). After the accident the applicant’s general practitioner Dr Emmett referred her to Dr Graham, a consultant rheumatologist, and Dr Siejka, a consultant neurologist. In both referral letters, Dr Emmett wrote that the applicant ‘now has some weakness of the right hand. I feel that she has suffered some neurological insult, either in the neck rather than peripherally (sic)’ (Exhibit 3, pp 42 & 44).
In October 2000 Dr Graham wrote that the applicant had described her symptoms as including ‘a hand that won’t work’ and that she had said she ‘neglects to use the arm completely and holds it rigidly in place’ (Exhibit 3, p 45). Nerve conduction studies performed later in 2000 returned normal results. Dr Siejka noted that the applicant had described tingling down the fingers of her right hand which, though persistent, was lessening over time (Exhibit 3, p 47).
The applicant was referred to Dr Siejka again in October 2002 because of symptoms of ‘pain in the right arm on walking, pins and needles in the right hand, dropping things easily with the right hand and some pain in the right shoulder and a cold right hand with a decrease in colour’ (Exhibit 3, p 49). Dr Emmett noted that there had been no problems with the applicant’s right hand since she last saw Dr Siejka in 2000. Dr Siejka attributed her symptoms to thoracic outlet syndrome, secondary to the injuries sustained in the 2000 motor vehicle accident (Exhibit 3, p 50). In March 2003, Dr Siejka described ongoing problems with pain in the applicant’s right shoulder and associated symptoms of paraesthesia in the right arm, and sweating and coldness in the right hand.
The applicant was referred to Dr Francis, a consultant rheumatologist, in 2003. Dr Francis described symptoms of ‘excessive sweating in her right hand’ and ‘autonomic overactivity’ but noted she was ‘returning to a better level of function’ after receiving nerve block treatment in August 2003 (Exhibit 3, pp 56 & 61).
The applicant was referred to a psychologist, Mr Gourlay, who described her as a ‘very psychologically robust individual who appeared to be coping with her circumstances reasonably well’ but also reported some assessment results indicating mild depression (Exhibit 3, p 62). In September 2003 Dr Gourlay reported ongoing temperature problems, cold sweats and blotchy appearance in respect of her right hand, as well as stating (Exhibit 3, pp 64-5):
She is not catastrophizing about the condition of her arm but is genuinely concerned that she has no clear idea of what her final diagnosis is and why the arm feels the way it does. She feels strongly that it’s not in her head as Dr Marquis had indicated.
In December 2003, Dr Francis similarly reported that, while some symptoms had subsided (headaches, pain in the right shoulder), the applicant continued to experience autonomic symptoms in her right hand (excessive sweating, background ache and clumsiness) and he diagnosed her with complex regional pain syndrome (CRPS) (Exhibit 3, p 66). Reports of similar autonomic symptoms – including decreased sensation, numbness, swelling and pins and needles, and ongoing tingling and weakness (Exhibit 3, pp 67, 79 & 85) – continued throughout 2004.
The applicant received further nerve block treatment in October 2004 but experienced a poor reaction to the final block. Previous diagnoses of depression were amended to PTSD in early 2005, the cause of which was suggested to be her negative experience with the nerve block treatment (Exhibit 3, p 209). In June 2005 Dr Jacobs, a clinical psychologist, wrote that the applicant presented with an ‘Adjustment Disorder with depressed mood’ and noted that she had some symptoms of PTSD following the incident with the nerve block treatment (Exhibit 3, p 222).
Nursing Injury in 2008
Before her employment with the respondent, the applicant worked as an enrolled nurse at an aged care facility for approximately eight months between 2007 and 2008. In January 2008 the applicant sustained an injury to her back when a resident fell on top of her. After some time off work, the applicant planned to return for two hours per day, three days per week on administrative duties, in accordance with a return to work plan. In April 2008 an MRI confirmed a ruptured disc at L4/L5, a bulging disc at L3/L4 and impingement of the sciatic nerve. The applicant underwent a microdiscectomy on the ruptured disc at L4/L5 in May 2008.
The applicant first saw Mr de Jong, a psychologist, in June 2008. In September 2008 he wrote that the applicant had presented with severe depression and opined that this arose ‘directly from her medical condition and associated physical incapacity’ (Exhibit 3, p 231). In a later report, Mr de Jong stated that the applicant’s primary difficulty continued to be chronic pain and that she ‘accepts that her condition may never resolve entirely’ (Exhibit 3, p 233). He described her prognosis in respect of her psychological wellbeing as cautiously optimistic and a later report confirmed that she had improved psychologically (Exhibit 3, p 244).
HEARING BEFORE THE TRIBUNAL
Both the applicant and respondent were represented by counsel at the hearing. In addition to the applicant, the following witnesses appeared and gave oral evidence:
·Mr Robert Burton, the applicant’s husband;
·Ms Christine Smith, a friend of the applicant;
·Ms Judith Baird, a friend of the applicant;
·Ms Samantha Andrews, Branch Manager at the Commonwealth Bank;
·Mr John de Jong, a psychologist;
·Dr Stanley (Ian) Emmett, the applicant’s general practitioner;
·Dr Norman Rose, a psychiatrist; and
·Mr Andrew Hanusiewicz, an occupational physician.
Dr Rose, Mr Hanusiewicz and Ms Andrews gave evidence by telephone. All other witnesses appeared in person.
A considerable amount of documentary evidence was tendered during the hearing. This included the T documents (Exhibit 1), a large binder of medical evidence relating to the applicant between 2000 and 2017 (Exhibit 3), statements from relevant lay and medical witnesses, extracts of relevant medical documents obtained under summons, and surveillance footage. The respondent also tendered correspondence exchanged by the parties regarding a request for further particulars from the applicant (Exhibit 14) and some issues relating to particulars generally are dealt with below in these reasons at paragraph 69.
ISSUES
The issues for the Tribunal were set out in the applicant’s Statement of Facts, Issues and Contentions as:
1.1 The Applicant contends that the issues for the Tribunal to determine are as follows:
(a)did the Applicant suffer from an injury in the course of her employment with the Respondent on or about 9 January 2014;
(b)if yes to (a), what was the nature of the injury sustained;
(c)has any injury sustained by the Applicant on or about 9 January 2014 resulted in the Applicant developing a depressive disorder/pain condition;
(d)if yes to (c), what was the nature of the resultant condition;
(e)to what extent has the Applicant been incapacitated for work since 9 January 2014;
(f)to what extent are any expenses incurred by the Applicant a result of the Applicant’s work condition;
(g)to what extent can the Respondent rely upon Section 7(7) of the Safety Rehabilitation and Compensation Act 1988.
The respondent’s Statement of Facts, Issues and Contentions described the issues as:
(a)Whether the Bank is liable pursuant to s 14 for the claim for injury to the applicant’s right wrist and hand
(b)Whether the Bank is liable pursuant to s 14 for the claim made for a psychological injury developed as a secondary consequence of any compensable physical injury
I consider the issues to be determined to be as follows:
(i)the nature of the physical injury sustained by the applicant in January 2014;
(ii)whether the respondent has a present liability to compensate the applicant for the physical injury;
(iii)the nature of the psychological condition the applicant developed;
(iv)whether the respondent is liable for the psychological condition on the basis that it developed as a consequence of a compensable physical injury or was contributed to a significant degree by her employment with the respondent; and
(v)the extent to which the respondent can rely upon s 7(7) of the SRC Act to deny liability for the applicant’s psychological condition.
Issue One: Nature of the Applicant’s Physical Injury
Entitlement to compensation under the SRC Act requires, as a starting point, that an employee has suffered an ‘injury’ for the purposes of the Act. The terms ‘injury’ and ‘disease’ are defined as follows:
5A Definition of injury
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.
…
5B Definition of disease
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.
Several medicolegal reports were tended at the hearing, these being reports of Mr Hanusiewicz, Dr Rose and Mr de Jong. In view of the wide divergence of opinions, some aspects of those reports are set out in detail below. Before I discuss those reports, I will briefly summarise the relevant medical treatment received by the applicant following the incident at the Commonwealth Bank.
Medical Treatment Following the Injury in January 2014
Following the incident the applicant visited Dr Emmett, who referred her to several specialists. In a letter from Dr Emmett dated the day of the incident, he writes that ‘I feel it is a CRPS. There is no recorded past medical history of relevance in regards [sic] this particular problem’ (Exhibit 3, p 254). The same letter also notes that the applicant ‘noted some warning signs minor pain for some weeks before before [sic] sudden pain tenderness temperature changes and swelling.’ Dr Emmett certified the applicant as unfit for work and recorded a provisional diagnosis of CRPS (Exhibit 1, pp 32-34).
Dr Emmett referred the applicant to Dr Graeme Jones, a rheumatologist. In a letter dated 28 January 2014 Dr Jones opined it was more likely the applicant had ‘hyperacute carpal tunnel syndrome’ than CRPS, though noted ‘CRPS is still possible and certainly some of her movements seem consistent with this’ (Exhibit 3, p 256). He referred the applicant for an MRI of her right wrist on 14 February 2014 and for a follow up MRI on 18 February 2014.
Dr Emmett certified the applicant as fit to resume suitable duties on 4 February 2014. A primary determination was made by the respondent on 17 February 2014 accepting liability pursuant to s 14 of the SRC Act for chronic repetitive strain for right hand/wrist. The applicant was performing full time restricted duties by March 2014.
In a letter to Dr Emmett dated 28 April 2014, Dr Sharma, a plastic surgeon, wrote that the follow up MRI suggested the applicant may have a central perforation of her triangular fibrocartilage complex (TFCC) and that she had ‘sprained her wrist with partial injury to the TFCC, which is now developing into a maladaptive pattern suggestive of complex regional pain syndrome’ (Exhibit 3, p 259).
The applicant was then referred to Dr Orlikowski, a specialist anaesthetist and pain medicine physician at the Persistent Pain Clinic at the Royal Hobart Hospital. In May 2014 Dr Orlikowski provided a medical certificate with a diagnosis of CRPS and recommended the applicant work a maximum of five hours per day (Exhibit 1, p 83).
In June 2014 Dr Robinson, a consultant psychiatrist, wrote that the applicant ‘has developed a Major Depressive Disorder in the context of a workplace injury and subsequent ongoing pain. I have no doubt that her depression has emerged as a consequence of her injury’ (Exhibit 3, p 265). I note that another psychologist, Mr Marriott in a letter dated 25 July 2014 (Exhibit 1, p 139) also opined that the applicant suffered depression.
The applicant accepted a position as a full-time customer service representative at a different branch of the Commonwealth Bank in September 2014 and reported a reduction in stress levels as well as improvements in pain symptoms (Exhibit 1, p 155). She ceased psychological counselling in November 2014 due to significant improvement in her symptoms (Exhibit 1, p 177). At this time the applicant was working 36 hours per week and she returned to full time work (40 hours per week with approved time off to attend physiotherapy) by March 2015.
In November 2014, the respondent wrote to the applicant advising her that the secondary psychological condition that appeared on her medical certificates had not been formally determined as part of her claim (Exhibit 1, p 191). She was advised that the respondent was in the process of obtaining further medical information to assist in its determination. A claim for ‘Major Depression – secondary to original injury’ was received by the respondent on 1 December 2014 (T53, p199).
Following referral from Dr Emmett, the applicant was seen by an orthopaedic surgeon, Dr Furzer, who reported the development of a cyst in the applicant’s palm that was consistent with ‘a very minor Dupuytren’s nodule’ (Exhibit 3, p 266). Dr Furzer noted that, at this stage, the nodule showed no need for surgery and therefore there didn’t appear to be anything further he could offer.
Report of Mr Hanusiewicz
At the request of the respondent, the applicant attended a consultation with Mr Hanusiewicz, an orthopaedic surgeon, on 21 August 2015. Mr Hanusiewicz provided a report of the same date that included the following (Exhibit 1, pp 270 & 273):
Mrs Burton did not volunteer any further details from her past medical history. However, on inspection of the notes from her GP, Dr Emmett, it was noted that … … in 2000 she was in a motor vehicle accident and sustained seat belt injuries, from which she recovered. In 2008 she developed low back pain and underwent a microdiscectomy. In 2014 she was diagnosed with depression.
…
Her movements were natural and not exaggerated until physical examination of the musculoskeletal system commenced, when she became extremely protective when an attempt to examine her affected upper extremity was made. While examining the range of movement, it was the examiner’s impression that Mrs Burton did not make her best effort and indeed, there was a discrepancy when Mrs Burton was observed while attending to her clothing, and during the time she was formally examined, when range of movement was significantly less than when observed whilst not being examined. The most obvious discrepancy was when examination of the right shoulder was taking place and it had been noted in observation, that she was able to abduct her right shoulder at least twice as much as when she was formally examined, when she claimed abduction was only possible to approximately 80°.
Mrs Burton was also requested to write her email address, which she did with her right hand with no difficulty. However, during examination she could hardly move her fingers.
Mr Hanusiewicz further reported that (Exhibit 1, pp 277-279):
According to the provided documentation, an impression is created that Mrs Burton has the accepted conditions of the following two pathologies:
Chronic regional pain syndrome (CRPS 1)
Rupture of the triangular fibrocartilage in the right wrist.
According to the documentation provided, she has actually received treatment for these conditions. …
To diagnose CRPS 1 there are clearly indicated signs when the diagnostic criteria needs to be met. In classical CRPS 1, pain is associated with specific clinical findings including signs of vasomotor and sudomotor dysfunction, and tropic changes of all tissues from skin to the bone. In order to make the diagnosis of CRPS1, at least eight of the following clinical and radiological signs need to be present:
Vasomotor changes:
·Changes of skin colour when the skin is mottled or cyanotic;
·Skin temperature is cool;
·Oedema (swelling);
Sudumotor changes:
·The skin being dry or overly moist;
Trophic changes;
·Change of skin texture, the skin becomes smooth and non-elastic;
·Soft tissue atrophy-especially in the fingertips;
·Joint stiffness and decreased passive motion;
·Nail changes - blemished, curved, talon like;
·Hair growth changes – falls out, grows longer and finer;
Radiographic changes:
·Radiographic trophic bone changes, osteoporosis;
·Bone scan findings are consistent with CRPS1.
It needs to be stated that the individual's claims of symptoms do not fall in to the category of scientific evidence. In Mrs Burton's case she does not meet even a few of the required criteria. She therefore cannot be diagnosed with CRPS1, even considering that she has been on treatment for some time. Her claimed symptoms have lasted for over a year during which time she would have developed classical, clinical signs consistent with CRPS1.
…
With regard to the injury to the triangular fibrocartilage, I also question this diagnosis. Mrs Burton has had two MRIs and an ultrasound. None of these investigations – which are very specific for this pathology – could diagnose it without reasonable doubt. The first MRI did not show any pathology. The second, with enhanced contrast, showed some effusion of the wrist joint with basically normal synovial membrane. The only possible site of injury was the central part of the fibrocartilage which by no means can produce the symptoms claimed by Mrs Burton.
From an orthopaedic point of view, her diagnosis is as follows.
1unconfirmed tear of the right triangle fibrocartilage (TFCC) of the right wrist.
2early palmar fibromatosis in the right-hand.
3psychosomatic condition related to injury at work.
… if Mrs Burton does have a triangular tear it is minor and certainly can not be symptomatic to the extent that it produces the disabilities claim by Mrs Burton.
In relation to the early palmar fibromatosis Mr Hanusiewicz noted that it was small, did not require any treatment and furthermore, that it was ‘not a painful condition and can not explain any of the symptoms which Mrs Burton complains of.’
In a later report dated 25 January 2017, Mr Hanusiewicz noted that ‘after reviewing around 500 pages of documentation which were provided since my initial examination and report, I realise that Mrs Burton was not truthful with regard to answering questions she was asked with regard to her past medical history’ (Exhibit 3, p 9). However, he then went on to state that such information would not have changed the conclusions he expressed in his report of August 2015.
At this stage it is appropriate to note my impression of the reliability of the applicant’s evidence. I found her to be a witness who would initially only volunteer evidence she felt assisted her case but that, when pressed, would provide fuller details regardless of the perceived benefit or detriment to her case. She was an unreliable historian in relation to earlier injuries and their legal sequelae and so I have treated her evidence with some caution. However, most of the matters relevant to her claim were supported by detailed contemporaneous medical notes and, where appropriate, I have set out extracts of these, especially in relation to the claim for the psychiatric/psychological condition(s).
Conclusion on Issue One
There much conjecture medically as to the precise nature of the physical injury sustained by the applicant at the Commonwealth Bank in January 2014, including the following diagnoses:
(a)CRPS – Dr Orlikowski and Dr Emmett;
(b)Carpal Tunnel Syndrome – Dr Jones;
(c)Sprained wrist – Dr Kapur; and
(d)Triangular tear of the wrist fibrocartilage – Mr Hanusiewicz.
After considering all of the evidence in relation to the nature of the injury, I prefer the diagnosis of Mr Hanusiewicz and find that the applicant originally suffered a tear of the TFCC of the right wrist and early palmar fibromatosis in the right hand, though the latter is unrelated to the work incident. I note that Mr Hanusiewicz described the tear as unconfirmed but, in view of the significant amount of contemporaneous medical notes indicating pain consistent with such a diagnosis (even though other alternative diagnoses were also offered), I am satisfied that, at least initially, the applicant suffered such an injury.
Accordingly, for the reasons advanced by Mr Hanusiewicz set out in paragraph 35 of these reasons, I do not accept that the applicant has had CRPS as a result of the incident at the Commonwealth Bank in January 2014.
In view of the lack of objective evidence since August 2015 of the above-mentioned tear having not resolved, I find that by at least that date whatever physical injury the applicant had suffered as a result of the work incident had resolved. However, as discussed below, the question of any psychiatric/psychological sequelae is a different matter.
Issue Two: Respondent’s Present Liability for the Applicant’s Physical Injury
Section 14(1) of the SRC Act provides the circumstances in which employees of the Commonwealth, Commonwealth authorities or licensed corporations will be entitled to compensation for injuries:
14 Compensation for injuries
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. …
The respondent contended it was not liable under s 14 for a tear of the applicant’s TFCC or any other physical injury to her right wrist and hand because such an injury had not been proved to exist. Instead, the respondent submitted that the applicant suffered from palmar fibromatosis and denied liability on the basis that this condition had not been significantly contributed to by her employment with the respondent, nor was it clinically significant or relevant to her physical presentation. In regards to the claim for CRPS, the respondent denied liability on the basis that the applicant did not suffer from this condition. In the event the Tribunal found that she did suffer from CRPS, it contended that s 7(7) disentitled her from compensation in respect of that condition.
Conclusion on Issue Two
As noted previously above at paragraph 41, I find that any physical injury arising from the work incident had resolved by August 2015.
Issue Three: Nature of the Applicant’s Psychological Condition
The applicant saw several medical professionals following the incident at the Commonwealth Bank in relation to her psychological condition. Additionally, there were various documents contained within Exhibit 3 relating to her past experience of, and treatment for, psychological conditions. Both Dr Rose and Mr de Jong gave evidence at the hearing as to the nature of the applicant’s condition.
Evidence of Dr Rose
On 18 September 2015, the applicant’s workers’ compensation case manager was informed that the applicant had attempted suicide following receipt of Mr Hanusiewicz’ report and had been admitted to North West Regional Hospital. Shortly after her admission, the applicant saw Dr Rose, a psychiatrist on 23 September 2015. He provided a report of the same date (Exhibit 1, pp 305-313) in which he, inter alia, reported:
Mrs Burton said that she had seen a psychologist at Burnie maybe four or five times because she had anxiety attacks associated sweating, shaking and headaches. There was no mention of the depression that was described by either Dr Robinson or Mr Marriot. She told me that her anxiety levels were such that meeting somebody for the first time or being in a room with too many people would make her anxious. In other words, in giving a history to me Mrs Burton was focussing on her anxiety and panic attacks rather on her depression, although she did acknowledge having taken a recent, very serious overdose.
Mrs Burton said that six years ago after sustaining a back injury whilst working as an enrolled nurse, she suffered a mild attack of depression. She then had psychological treatment from Dr John De Jong. It is of interest that Mrs Burton failed to tell me about any problems she had with her son Sean.
Mrs Burton gave no history of other previous injuries or need for surgery except for having had a hysterectomy.
Mrs Burton, from a psychiatric perspective, is suffering from:
pain disorder and
secondary adjustment disorder with mixed anxiety and depressed mood.
Dr Rose provided a supplementary report dated 16 January 2017 (Exhibit 3, pp 22-27) in which he revised his diagnosis of the applicant’s condition and stated that, though he still thought she had a pain disorder, he now believed her symptoms to be ‘grossly exaggerated, and that they are only in a minor way related to the injury at the Commonwealth Bank’ (Exhibit 3, p 26).
At the hearing, Dr Rose stated that he thought it was fairly clear that the applicant’s psychiatric state and belief systems were contributing to her symptoms of pain. He stood by the comment in his 2017 report that the applicant’s symptoms were greatly exaggerated and may be feigned.
Evidence of Mr de Jong
Mr de Jong, a psychologist, first saw the applicant in 2008. In a letter dated 17 June 2015 Mr de Jong opined that (Exhibit 1, p 237):
Ms Burton's worsening anxiety and depression arise substantially from her chronic pain and unsuccessful physical and vocational rehabilitation. Her psycho-social stress cannot be effectively/sustainably treated independent of the underlying causes, and this means that there is little point in returning her to the same work situation. In my view, Ms Burton's anxiety and depression, and secondarily her regional pain syndrome, will worsen if she continues in her current role at the same setting.
Mr de Jong also provided a statement dated 13 October 2017 which was tendered in evidence at the hearing before the Tribunal (Exhibit 5). In this statement he opined that:
What has happened following the 2014 injury is that there has been a new condition which has arisen as a consequence of a new stressor and it is not an aggravation of the previous condition which existed in 2008 [the injury suffered whilst as an enrolled nurse].
Mr de Jong maintained the above opinions at the hearing. He noted that the applicant had experienced some depressive symptoms following a motor vehicle accident in 2000, that she had received workers’ compensation in June 2008 for, inter alia, claims for some depressive symptoms, and that in 2014 she had experienced depressive symptoms flowing from the injury at the Commonwealth Bank.
In his evidence, Mr de Jong stated that when he saw the applicant in 2008, she was not a person that appeared to have a predisposing vulnerability to any psychological condition. Rather, his overall formulation was of a resilient individual who had suffered two episodes of depression in response to clear causative factors.
Mr de Jong did not disagree with a statement that was put to him by the respondent, which had been extracted from the beginning of the DSM-IV, to the effect that ‘there is no assumption that each category of mental disorder is a completely discrete entity with absolute boundaries dividing it from other mental disorders’. He agreed that in 2008, his diagnosis of the applicant was ‘mood disorder due to a general medical condition’ and then that in 2014, his diagnosis was an ‘adjustment disorder’. Mr de Jong opined that the fact the applicant suffered essentially the same condition on two or three occasions did not mean that one was a continuation of the other.
Conclusion on Issue Three
As is the case in many instances of psychiatric conditions it is difficult to put a precise label on the condition suffered by the applicant, but I am satisfied, as was Dr Rose in 2015, that she suffered from an adjustment disorder with mixed anxiety and depressed mood.
The categorisation of such mental conditions can sometimes be difficult to do with precision but I am satisfied that this condition was a disease and hence is an ‘injury’ as defined by s 5A(1)(a) of the SRC Act. I am assisted in reaching this conclusion by comments made by Perry J at [57]-[61] of his reasons in National Australia Bank v Georgoulas [2013] FCA 1412:
3.6.1. The decision in Mooi on ‘disease’ in the context of mental illness
The parties were agreed that the decision of Drummond J in Mooi op cit had correctly determined the question of what constitutes a ‘disease’ in the context of mental illness.
In that case, the Tribunal had initially found the respondent entitled to compensation on the basis that, while he was not suffering from any mental illness, mental disturbance or psychological disorder as a result of work related stress, the condition that those stresses contributed to produce in him had an effect on his capacity for work and was still sufficient to amount to an injury within s 14 of the Act.
The Court rejected that approach on the ground that it was contrary to the scheme of the Act. In particular, it would have been unnecessary for the Act to elaborately define “injury” as comprising diseases, physical or mental injuries (other than diseases) and aggravations of those conditions if s 14(1) made compensable any condition or circumstance in which the employee finds himself, so long as it arose in the course of his or her employment and interferes with his or her capacity for work: Mooi at 442-F. Rather, his Honour considered that to be entitled to compensation, the employee must show relevantly that he suffered something that can be regarded as an injury or as a disease: Mooi at 442-G. In this regard, Drummond J held at 442-443 that:
“The expression ‘ailment’ is used in s 4 of the Act as a synonym for the term ‘disease’. It is apparent, from the exhaustive meaning given by s 4 to the term ‘ailment’, and from the ordinary meaning of that word – ‘a morbid affection of the body or mind; indisposition; a slight ailment’ (The Macquarie Dictionary) – that that term is intended to cover the whole range or physical and mental illnesses from major to minor ones.”
His Honour recognised in this regard at 443-D that these concepts do not provide precise criteria and that, “[i]n the medico-legal context, the concept of mental illness is a notoriously difficult one to define or describe.” However, his Honour reached the view at 443G-444B that, while the expressions may bear different meanings in other contexts:
“...the expressions used in the Safety, Rehabilitation and Compensation Act to define the various forms of mental condition that can amount to ‘injuries’ compensable under s 14(1), do not appear to be used in any technical medical sense, but have the meanings they bear in ordinary usage. It follows, in my opinion, that, so far as events that do not result in any physical harm to a worker or in the development of any observable pathology in the worker’s body but which have only some form of psychological consequence are concerned, the worker will be able to show the existence of a mental ailment, disorder, defect or morbid condition even though his resultant condition cannot be identified with the label of a recognised medical condition. But it is, I think, essential for such a worker to be able to demonstrate that, having regard to his circumstances, he is in a condition that is outside the boundaries of normal mental functioning and behaviour. In short, I consider the 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 compensable under s 14(1).” (Emphasis in original)
Drummond J went on to reason that, in determining whether there has been a work-caused aggravation of a disease, the manifestations of the disease (i.e. symptoms) are relevant rather than the disease being considered separately from its various manifestations. His Honour made the basic point that without a disease there could be no aggravation and hence no compensable injury in circumstances where compensation is sought for aggravation of a disease: Mooi at 445G-446A. Conversely, his Honour explained, at 446-F that “...work-caused physical or mental fatigue that impairs an employee’s capacity to work is no more compensable than debilitating work-caused distress, unless that distress amounts to or results in a condition of disease or illness.” Thus, Drummond J found that that the Tribunal had erred in finding that the respondent had suffered an injury within s 14(1) of the Act having found that the respondent was not mentally ill or suffering from any psychological disorder.
Issue Four: The Respondent’s Liability for the Applicant’s Psychological Condition
The respondent submitted that it had no present liability under s 14 of the SRC Act for psychological symptoms secondary to the claimed physical injury if that injury was found to be non-compensable by the Tribunal.
In his report of September 2015, Dr Rose concluded:
I do believe that the employee's employment with the Commonwealth Bank of Australia has contributed to a significant degree. To put it another way, all of Mrs Burton's psychiatric symptoms arise from her hand injury. She may have been vulnerable at the time and this former vulnerability almost certainly contributed to psychiatric sequelae of the hand injury. However, but for the hand injury she would not have had a psychiatric condition.
However, as noted above at paragraph 47, Dr Rose altered his opinion in a supplementary report he provided in January 2017 after additional material regarding the applicant’s medical history was provided to him by the respondent. In this report, Dr Rose wrote that he now considered ‘that any injury at the bank has been minor, contributing to any current morbidity to a degree of only 10%. I think the much of her presentation is exaggerated and some of it may be feigned’ (Exhibit 3, p 26).
In his oral evidence, Dr Rose said he had formed the view that the applicant was seeking to minimise the role depression played in her symptoms. The basis for this view was that she had provided an unreliable medical history and was not forthcoming in regard to much of her history, including her first marriage and previous motor vehicle accident. Dr Rose said that, in general, he considered her history to be very selective and vague. He also stated that the applicant had given him the impression that she had a poor tolerance for anything outside her own perceptions and belief systems. One matter upon which Dr Rose appeared to place considerable weight was the fact that he believed the applicant was working in her husband’s sandwich shop in the period leading up to his examination of her in September 2015 and that her ability to do so was inconsistent with her reported symptoms. Dr Rose concluded by saying that he had difficulty accepting the validity of much of what the applicant had to say.
Dr Rose’s opinion relied upon, inter alia, his belief that the applicant failed to disclose some earlier histories and that she had been working in her husband’s sandwich shop. The former is explainable by reference her condition in that she was recovering from a very recent suicide attempt and the latter was an incorrect assumption, as the evidence disclosed. I find that the applicant did not commence work at the sandwich shop until late January 2016, some four months after her appointment with Dr Rose. She did not commence such work until her condition had improved.
Accordingly, as a substantial part of the basis for the changing of Dr Rose’s opinion was an incorrect assumption and others aspects are explainable by her condition, I prefer his opinions in the report of 23 September 2015 (see above at paragraph 46). Furthermore, there was substantial evidence that the onset of the applicant’s psychiatric condition occurred shortly after the initial injury in 2014 and well before I have found that it had resolved.
Notwithstanding any concerns that may have existed regarding the accuracy of the applicant’s evidence, there is substantial documentary evidence that records significant symptoms and changes in behaviour following the workplace incident, including:
(i)The letter from Dr Sharma (referred to above at paragraph 28) opining that the applicant’s initial injury had developed into a maladaptive pattern suggestive of CRPS and he referred the applicant to Dr Orlikowski.
(ii)A letter from Dr Orlikowski to Dr Sharma following the referral noting that the applicant had pain all the time, held her right hand in a partially clawed position, and that there was a wasting of thenar and hypothenar muscles (Exhibit 3, p 260). Dr Orlikowski also noted that her hand was swollen, that there were, at time, temperature changes and that her husband had noticed colour changes.
(iii)The letter from Mr de Jong dated 17 June 2015 (referred to above at paragraph 49) opining that the applicant's worsening anxiety and depression arose substantially from her chronic pain and unsuccessful rehabilitation, and noting that her psychosocial stress could not be effectively treated independently of its underlying causes, meaning there was little point in returning her to the same work situation.
(iv)Mr de Jong’s statement dated 13 October 2017 (referred to above at paragraph 50) in which he opined that, following the 2014 injury, a new condition arose as a consequence of a new stressor and that it was not an aggravation of the previous condition that existed in 2008 (that developed following the injury suffered whilst the applicant was employed as an enrolled nurse).
(v)A statement from Christine Smith (née Clarke) noting that the applicant had difficulty doing basic things (vacuuming, hanging out clothes or cooking dinner) with her hand and was clearly frustrated by this (Exhibit 6). It also stated that the applicant had become a ‘shell’ of her previous self in that there didn’t seem to be any laughter in her anymore.
(vi)A statement from Judith Baird that said the applicant was now completely different to the person she knew before and that she is very timid, wary and reclusive (Exhibit 7).
(vii)A statement from Mr Burton (Exhibit 8) listing things he had noticed about his wife following the incident, including:
She does not seem to care about money and is very blasé in the way she acts.
She is very wary of going to work.
She did not want people talk to her about her injury.
She did not want to aggravate the injury.
She is now very guarded about people touching her hand or arm, even myself.
She sometimes drops things without any reason.
She seems very reluctant to use her hand and is concerned about the risk of potentially injuring it further.
She tends to hold her arm differently and often up against her chest.
We rarely see friends now.
She has become more reliant on myself for conference support after the injury. …
She has become a recluse and her space is her bedroom.
Her moods vary in if she is down is very down. She's not the person she was before.
(viii)A proof of evidence from Dr Dilip Kapur, a specialist pain medicine physician, dated 15 November 2016 that was tendered by consent at the hearing and noted, inter alia, as follows (Exhibit 10, at [85]-[87] & [97]):
It does seem likely that at the minimum, an acute wrist strain was sustained on 9 January 2014. …
I note the early concerns about a diagnosis of CRPS but the time of my assessment, there were minimal features of complex regional pain syndrome. Reviewing the various records, I am not certain that there were ever sufficient criteria to make a formal diagnosis.
I do believe that the presentation is perhaps more appropriately characterised at this stage as perhaps representing a pain disorder or, to use the updated DSM V diagnosis, a somatic symptoms disorder with pain prominent.
…
I believe that Ms Burton’s condition is best described as a pain disorder with both physical and psychological components.
(ix)A statement from Dr Emmett that noted (Exhibit 12, at [11]-[13]):
Her treatment was complicated because no one could put a certain tag on what she had, she had a lot of trips to Hobart for treatment and there were a lot of delays. Eventually a psychological element arose.
It was not a recurrence of any previous condition that Ms Burton sustained. What happens with Ms Burton is that she is vulnerable by reason of her underlying personality to suffer psychological issues. But what she does need is a triggering event.
In this case the triggering event was the injury at work on 9 January 2014, from which she did not recover well and then had further issues with a return to work and the way she was treated. As a result she sustained a psychological condition, but that was a new event which was triggered by the work injury.
(x)Referral letters from Dr Emmett dated 9 and 14 January 2014 (referred to above at paragraph 25) in which he writes that he feels the applicant’s condition is a CRPS and that there is no recorded past medical history of relevance.
(xi)The letter from Dr Robinson dated 21 June 2014 (referred to above at paragraph 30) stating that he had no doubt the applicant’s depression had emerged as a consequence of her injury and that ‘although clearly her workplace was a stressful environment even prior to hand injury, she received the response of management or injury, and the unreasonable pressure to force return to original brand, is perpetuating her depressive symptoms.’
Conclusion on Issue Four
Notwithstanding the reference by several doctors and psychologists to CRPS, a condition from which I am not satisfied was suffered by the applicant, I am satisfied that the reported symptoms are encompassed in the condition I have found the applicant to have suffered, namely an adjustment disorder with mixed anxiety and depressed mood.
The applicant contends that this psychological condition arose as a result of the wrist injury. The respondent’s contention is that either the psychological condition was not caused by the wrist injury or that it was a re-emergence of an underlying condition from which the applicant had been suffering since the earlier incidents referred to above at paragraphs 9 to 17 of these reasons.
Because of the unreliability of some of the applicant’s evidence I am not prepared to place too much weight upon her opinions as to whether any previous incidences of a psychological injury had ceased and this was a new injury. However, as noted at paragraph 62 above, there is an abundance of evidence indicating that any previous psychological condition had resolved and that the adjustment disorder has occurred as a result of the wrist injury. I found the evidence of Dr Emmett, Dr Robinson and Mr de Jong particularly persuasive.
In light of the evidence of a change in character and the emergence of symptoms following the work place incident together with the opinions expressed by Dr Emmett, Dr Robinson and Mr de Jong, I am satisfied that this was a new injury and not a continuation of a previous injury. Accordingly, I find that the applicant’s psychiatric condition arose as a result of her original physical injury and out of the course of her employment.
Issue Five: Whether the Applicant made a ‘Wilful and False Misrepresentation’
The final matter to be determined is whether the respondent’s liability to compensate the applicant is excluded because of any wilful or false representations made by her. In the event the Tribunal accepted that a compensable psychological condition existed, the respondent sought to rely upon s 7(7) of the SRC Act which it argued excluded liability because of a ‘wilful and false representation’ made by the applicant in her claim form.
The SRC Act contains exclusionary provisions pursuant to which a relevant employer will not be liable to pay compensation. Subsection 7(7) disentitles an employee from compensation where they have made a ‘wilful and false representation’ that they did not, or had not, not suffered from the claimed ‘disease’:
7 Provisions relating to diseases
(7) A disease suffered by an employee, or an aggravation of such a disease, shall not be taken to be an injury to the employee for the purposes of this Act if the employee has at any time, for purposes connected with his or her employment or proposed employment by the Commonwealth or a licensed corporation, made a wilful and false representation that he or she did not suffer, or had not previously suffered, from that disease.
At the hearing, counsel for the applicant submitted the respondent had not adequately articulated the submissions it intended to make in respect of s 7(7). The respondent consequently provided further particulars at the direction of the Tribunal which, inter alia, relied upon the following:
(a)The answer to Question 8 her claim form received by the respondent on 1 December 2014 that read ‘Have you ever had a similar injury or illness, work related or otherwise?’ The applicant ticked ‘No’ (Exhibit 1, pp 198-203).
(b)That when interviewed by Dr Rose on 23 September 2015 the applicant:
(i)did not disclose that she suffered psychological sequelae after being injured in a motor vehicle accident in 2000 despite having received damages for same;
(ii)failed to disclose relevant matters in her personal life which had contributed to depression she suffered after a back injury in 2008; and
(iii)sought to minimalise and/or downplay the extent of that depression.
(c)That in the claim form mentioned above in subparagraph (a), there is a scribble in the ‘No’ box and a tick just below/in the ‘Yes’ box below Question 9 (‘Have you ever received medical treatment for a similar injury or illness?’) Dr Emmett’s name and contact details are given as part of the answer to Question 9.
It is clear that s 7(7) of the SRC Act not only requires a representation but that the representation must be wilful and false. In Comcare v Porter [1996] FCA 562; (1996) 70 FCR 139, Jenkinson J said the following of the requirement of ‘wilful’ (at 149-150):
That passage, although directed to the interpretation of a criminal statute, is in my opinion apposite in reference to s 7(7). The verbal context supplied by the phrase “false representation” exposes the legislature’s attention to the conceptions and language of the common law, which distinguishes clearly between the objective falsity of a representation, signified by the word “false”, and the representor’s knowledge of the falsity, commonly signified in civil proceedings by the word “fraudulent”. (Halsbury’s Laws of England (4th ed, 1980), Vol 31, pars 1044, 1059, 1063-1065; R v Aspinall (1876) 2 QBD 48 at 56-57.) The clause “if the employee has ... made a ... false representation” may be expected, therefore, to signify knowledge on the part of the employee that the representation specified was being made by him and an intention on his part that it be made, as well as signifying the objective falsity, the incorrectness, of the representation, but no more. The addition of “wilful” in that verbal context excites the expectation that what the whole clause in the section requires is that, in addition to what the words previously extracted from the clause signify, the employee should have no belief that the representation is true. The subject matter of s 7(7) confirms the conclusion, tentatively reached upon a consideration of the verbal context, that the clause requires that the representation be made without any belief that it is true. There is no reason to suppose, upon a consideration of the whole Act, that the legislature would intend to attach to an innocent misrepresentation about the existence of a disease – a subject notoriously liable to human misapprehension – the dire consequence of exclusion of the representor from the benefits otherwise available under the Act in respect of the disease and its aggravation.
The matters complained of in relation to her interview with Dr Rose have to be considered against the backdrop of her having just survived a suicide attempt and hardly being in a fit state to answer questions with any precision. Because of the applicant’s disturbed state of mind I do not find any wilful intent accompanying that any omission on that day.
If the answer to Question 8 on the claim form was in isolation then the respondent would be on far firmer ground. However, in view of the contradictory answer to Question 9 and the fact that the applicant provided her general practitioner’s name, together with appropriate authorities to access all of her medical information, militates against a finding of a wilful misrepresentation.
Conclusion on Issue Five
I find that there were no ‘wilful and false representation’ made by the applicant and that s 7(7) of the SRC Act does not operate to defeat her claim.
DECISION
For the reasons outlined above in this decision, I:
(i)affirms the determination in application 2016/1851 that the respondent had no present liability to pay compensation in respect of the applicant’s physical injury; and
(ii)set aside the determination in application 2016/1852 and in substitution determine that the applicant suffered an injury for the purposes of s 5A(1)(a) of the Safety, Rehabilitation and Compensation Act 1988, being an adjustment disorder with mixed anxiety and depressed mood, and that the respondent is liable for that injury under s 14 of that Act.
I certify that the preceding 74 (seventy -four) paragraphs are a true copy of the reasons for the decision herein of A G Melick AO SC, Deputy President
............................[sgd]................................
Associate
Dated: 14 September 2018
Date(s) of hearing: 30-31 October, 1 & 3 November 2017 Date final submissions received: 3 November 2017 Counsel for the Applicant: Mr A Gaggin Solicitors for the Applicant: Doolan and Brothers Counsel for the Respondent: Mr B Kelly Solicitors for the Respondent: Commonwealth Bank
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