CHING And AUSTRALIAN POSTAL CORPORATION
[2011] AATA 361
•30 May 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 361
ADMINISTRATIVE APPEALS TRIBUNAL )
) No. 2008/0916; 2008/0918 2008/0920 2008/4691
2010/3609
GENERAL ADMINISTRATIVE DIVISION ) Re XIAO MEI CHING Applicant
And
AUSTRALIAN POSTAL CORPORATION
Respondent
DECISION
Tribunal Dr J D Campbell, Member Date30 May 2011
PlaceSydney
Decision 1. In respect of application No. 2008/0916, the decision under review is affirmed.
2. In respect of application No. 2008/0918, the decision under review is affirmed.
3. In respect of application No. 2008/0920, the decision under review is set aside and in substitution thereof it is determined:
i. liability is accepted for the psychiatric conditions of pain disorder, panic attack with agoraphobia and major depressive disorder; and
ii. the matter is to be remitted to the Respondent in relation to the calculation for section 16 and 19 payments; and
iii. the Applicant is entitled to recover costs in the nominated matter in accordance with the Tribunal’s existing cost recovery instructions.
4. In respect of application No. 2008/4691, the decision under review is affirmed.
5. In respect of 2010/3609, the decision under review is set aside and in substitution thereof it is determined:
i. the Applicant is entitled to permanent impairment payment in respect of an accepted psychiatric condition, nominated in the previous matter, with the level of whole body impairment determined to be 15 per cent; and
ii. the matter to be remitted to the Respondent for calculation of the compensation payment; and
iii. costs are awarded to the Applicant in relation to the nominated matter.
...................[sgd]...........................
Dr J D Campbell
Member
CATCHWORDS
WORKERS COMPENSATION – multiple claims for shoulder, arm and hand conditions – injury liability accepted for medical treatment expenses in relation to bilateral shoulder condition – determination to cease liability – AAT decision that liability existed to pay compensation in relation to bilateral shoulder injuries and left upper limb injury – issues concerning rehabilitation and return to work program – AAT decision found Applicant able to undertake a rehabilitation and return to work program – liability to pay compensation pursuant to section 16 and 19 denied in relation to bilateral bicipital tendonitis, subacrominal and subscapular bursitis and left forearm, wrist and hand injury.
Workers Compensation – claim for pain, anxiety, panic, palpitation, breathing difficulty, dizziness etc, fear to have heart attack – liability denied.
Workers Compensation – claim for permanent impairment in respect of bilateral upper limbs and shoulder conditions – liability denied under sections 24 and 27.
Workers Compensation – claim for permanent impairment in respect of a psychiatric condition – liability to pay compensation under sections 24 and 27 not determined as liability pursuant to section 14 not accepted for the condition.
Safety, Rehabilitation and Compensation Act 1988 (Cth), section 14, 16, 19, 24, 27, 37(7)
Comcare v Sahu-Khan (2007) 156 FCR 536
Treloar v Australian Telecommunications Commission (1990) 26 FCR 316REASONS FOR DECISION
30 May 2011
Dr J D Campbell, Member DECISIONS UNDER REVIEW
1. The following reviewable decisions of the Australian Postal Corporation (Australia Post) relating to the Applicant are before the Tribunal in the present proceedings in respect of claims under the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act):
(a)The decision dated 8 January 2008 (2007 date noted is a typographical error at T1 p.799) affirming an earlier determination dated 2 November 2007 that Australia Post was no longer liable to pay compensation under section 16 of the SRC Act (medical expenses) and/or section 19 of the SRC Act (incapacity payments) in respect of the Applicant’s bilateral bicipital tendonitis, subacrominal and subscapularis bursitis and left forearm, wrist and hand injury. (2008/0916).
(b)The decision dated 8 January 2008 (2007 date noted is a typographical error at T1 p.802) affirming an earlier determination dated 11 December 2007 in which Australia Post denied liability pursuant to section 14 of the SRC Act in respect of the Applicant’s claim for compensation in relation to “pain, anxiety, panic, palpitation, breathing difficulty, dizziness etc, fear to have heart attack”. (2008/0920).
(c)The decision dated 21 February 2008 affirming an earlier determination dated 16 January 2008 in which Australia Post denied liability to pay compensation pursuant to section 19 of the SRC Act for incapacity experienced on 22 August 2007 in respect of either a physical or psychiatric cause. (2008/0918).
(d)The decision dated 6 August 2008 affirming an earlier determination dated 17 October 2007 in which Australia Post denied liability to pay permanent impairment compensation pursuant to sections 24 and 27 of the SRC Act in respect of bilateral upper limb and shoulder conditions. (2008/4691).
(e)The decision dated 13 August 2010 affirming an earlier determination dated 14 July 2010 in which Australia Post denied liability to pay compensation pursuant to sections 24 and 27 of the SRC Act in respect of a psychiatric condition. (2010/3609).
LONGTITUDINAL BACKGROUND
2. Mrs Ching was born in 1961. Mrs Ching commenced work in 1980 in Hong Kong initially as a customer services’ representative for an air freight operator and from 1983 to 1986 as a secretary to an executive. Mrs Ching migrated to Australia in 1986 and she commenced work with Australia Post as a mail officer at the Southern Suburbs Mail Centre in 1988. Prior to her employment, she underwent a medical examination on 24 November 1988, during which she denied any history of any disorder of limbs, anxiety, mental or other nervous conditions. No evidence of limb or mental or nervous disorder was found at examination on that day.
3. Following her employment with Australia Post in 1988, Mrs Ching undertook studies in accountancy part-time at Liverpool TAFE College. For the next ten years Mrs Ching undertook a wide variety of tasks, including forklift driving as a mail officer, and during this period she much enjoyed her work and the work environment. During this period, she suffered a small injury to her hand in 1996, which was of little consequence.
4. In 1999 Mrs Ching, as a result of a reorganisation within within Australia Post, was transferred to work at the South West Mail Facility at Rookwood. Mrs Ching, after a two day training course, commenced working on the Spectrum 10 machine, undertaking the tasks of coding, loading, clearing on a 45 minute rotational basis. Mrs Ching described the activities associated with each task, and in particular described the task of coding and the difficulties encountered with stoppages, involving stretching with the left arm to raise the machinery hood and free the stoppage, which involved the arm being raised above shoulder height. Mrs Ching also indicated that the number of stoppages per 45 minute shift was dependent on the throughput rate, with an expected rate of 750 letters/magazines per shift.
5. Mrs Ching stated that she did not have any problems until the beginning of 2001, when she noticed some soreness in her left arm going to the left shoulder. In April/May 2001 Mrs Ching went on holidays to China and when she returned to work she states that she had no problem with her left arm. Mrs Ching resumed work undertaking coding and in July 2001 Mrs Ching reported to her supervisor that she had a problem, with Mrs Ching reporting that her supervisor wanted her to increase her productivity to 850 or more per shift. In August 2001, Mrs Ching reports that her supervisor wanted to increase her coding time activity to 90 minutes, as rotation wastes a lot of time. A few days after undertaking the 90 minute coding shift activity, Mrs Ching reported that her left arm and shoulder were really painful.
6. On 31 August 2001 Mrs Ching completed an incident report in which she recorded experiencing “muscular pain, left arm sore at 10.45 am while undertaking coding duties on a Spectrum 10 postal sorting machine”. Mrs Ching was placed on restricted duties for one month.
7. On 1 September 2001 Mrs Ching attended Dr Lau, a general practitioner who diagnosed left more than right upper limb myalgia and restricted Mrs Ching from undertaking any coding duties for four weeks.
8. On 10 September 2001 a work place assessment was conducted and Mrs Ching was placed on restricted duties as nominated by Dr Lau.
9. On 9 October 2001 Mrs Ching lodged a claim for compensation in relation to symptoms of pain and soreness in her left arm.
10. Mrs Ching reported that while undertaking restricted duties, which included large letter sorting, she continued to experience pain in the left arm associated with gripping a bundle of letters in her left hand.
11. On 11 October 2001 Mrs Ching attended Dr Barker-Whittle, a facility nominated doctor, who diagnosed Mrs Ching as suffering from occupational overuse syndrome and certified her fit for full time work with restrictions for one month, which he stated in further documentation on 19 October 2001 to be “only to use current coding machine for 30 minutes every hour. No Coding Rate to Apply. General duties for other 30 minutes. Wt restriction to 8kg.”
12. On 23 October 2001 Australia Post determined that liability did not exist pursuant to section 14 of the SRC Act. In the determination the reasons stated were:
You are claiming pain in the left arm. You have attributed this condition to having pain every time you code which is part of your duties and this cannot be described as a specific incident or an unusual situation at work.
There is nothing to explain why your normal duties would cause the pain in the left arm when they apparently had not done so before, given the length of your employment.
According to the medical certificate submitted ‘left more than right upper limbs myalgia’ was diagnosed, but there is no clear explanation to support the contention that there has been a work related injury.
13. On 27 October 2001, Dr Chan, the treating general practitioner, stated that for two months Mrs Ching has had symptoms of left shoulder, girdle and arm pain.
14. Mrs Ching stated that when she returned to undertake the restricted coding activities, she continued to experience pain in the left shoulder and in turn, because of this, she commenced using her right arm to clear the jams as they occurred.
15. On 30 October 2001, Dr Johnson, a consultant radiologist, reported that a left shoulder ultrasound revealed “minor bursitis in the region of the subscapularis tendon and there is slight thickening of the bursa.”
16. On 7 November 2001, Dr Gotis-Graham, consultant rheumatologist, reported that Mrs Ching was suffering from work related “bicipital tendonitis (bilateral) and left subacromial bursitis”. Dr Gotis-Graham recommended no coding duties for at least three months and a lifting restriction limited to seven kilograms.
17. On 30 November 2001 Australia Post issued a reviewable decision affirming the prior determination of 23 October 2001 which denied liability for Mrs Ching’s compensation claim. On 7 December 2001 following further consideration, a further reviewable decision was issued varying the determination of 23 October 2001. In this decision, Australia Post accepted liability to pay the cost of reasonable medical expenses, while continuing to deny liability to pay compensation for incapacity.
18. On 7 December 2001, Dr Hazan, a consultant radiologist, reported a normal right shoulder x-ray and reported no rotator cuff tear on ultrasound assessment.
19. Mrs Ching reported that even with the restrictions nominated by Dr Gotis-Graham being implemented, she continued to experience pain in left arm and right shoulder when undertaking quality checking and large letter sorting..
20. On 9 January 2002, Dr Gotis-Graham detailed that Mrs Ching has bilateral rotator cuff impingement, and it is highly likely that the condition will recur or worsen if she undertakes coding or lifts objects more than seven kilograms at work. These work restrictions would be long term. On 25 January 2002, Dr Chan issued a medical certificate detailing work restrictions in more detail.
21. On 15 February 2002 Dr Chase, an occupational physician, concluded that as at 11 February 2002 Mrs Ching had symptoms and signs consistent with a left shoulder impingement syndrome secondary to a subacromial bursitis. It is conceivable/probable that she has a small supraspinatus tear or tendonitis with regards her right shoulder, Mrs Ching’s history is consistent with similar diagnosis ie she did have a right shoulder impingement syndrome, but the symptoms and signs of this appear to have largely, if not completely, resolved. Dr Chase considered Mrs Ching fit to undertake a proposed upgrading program. Dr Chase also noted that Mrs Ching was worried and pain focussed.
22. On 4 March 2002, Mrs Ching lodged a claim for compensation in relation to left wrist and hand nerve system, following notification by way of an incident report on 18 February 2002 detailing an occurrence at work on 15 February 2002 and the provision of medical certificates from Dr Masters restricting duties involving repetitive gripping with the left hand, as well as clinical opinion from Dr Gotis-Graham that Mrs Ching is suffering from overuse syndrome involving left hand and forearm (mild flexor tendonitis).
23. In a report dated 3 May 2002, Dr McGill, a consultant rheumatologist, concluded:
I think it quite likely that her work duties did make a contribution towards her previous shoulder symptoms and I think it is likely that impingement/mild bursitis was the mechanism of her shoulder symptoms.
I cannot offer an organic explanation for her left hand and other recent left upper limb symptoms.
I think it is clear that anxiety and unhappiness in her work place is making a substantial contribution towards her symptoms.
I do not think that there is any ongoing physical disorder relating to her work.
I think she is physically fit to undertake a graded return to full normal duties.
Dr McGill also commented that her history was disjointed and there was evidence of a lack of co-operation during the physical examination.
24. On 17 May 2002, Australia Post made a determination denying liability in relation to the compensation claim concerning the left wrist. Further, on 29 May 2002, Australia Post issued a determination ceasing payment of compensation in respect of her shoulder condition. The determination of 17 May 2002 was reconsidered and on 5 June 2002 Australia Post issued a decision affirming the earlier determination. Similarly, Australia Post issued a reconsideration decision on 24 July 2002, affirming the determination of 29 May 2002.
25. On 1 July 2002, Dr Masters, a treating general practitioner, summarised Mrs Ching’s condition as a repetitive strain type disability, and as a consequence she would not be able to return to her original job but would be able to continue to work if given a job that does not involved rapid repetitive activities.
26. On 5 August 2002, Dr Gotis-Graham reported that Mrs Ching suffered from:
·Bilateral shoulder rotator cuff impingement syndrome.
·Left forearm and hand pain. No organic cause was found for this pain. The pain was worse with physical activity and improved with rest. Overuse and chronic pain behaviour are significant contribution factors to the problem.
Dr Gotis-Graham also noted:
A major factor exacerbating and perpetuating the above problems is anxiety and frustration. It became clear throughout the follow up period that Mrs Ching had difficulties interacting with her direct supervisors at work. She stated repeatedly that she felt her supervisors were not taking notice of her complaints and were not following recommendations made by her local doctor and myself.
27. In a report dated 14 August 2002, Dr Ellis, a consultant surgeon, considered that Mrs Ching suffered from repetitive strain injury, which in his opinion was a variant of reflex sympathetic dystrophy. The treatment, in his opinion,. is to completely avoid the nature of the work which caused the onset.
28. Mrs Ching lodged further claims for compensation on 4 April 2003 in relation to permanent impairment of the left upper limb and right upper limb and on 4 July 2003 a claim relating to left arm and right shoulders, left and right arms, left and right elbows, left and right wrists and hands. Reconsideration decisions affirming earlier determinations denying liability were issued on 1 July 2003 and 8 August 2003 respectively.
29. In a report dated 5 December 2002, Dr Bray, a consultant orthopaedic surgeon, concluded:
There is no overt evidence of any pathological orthopaedic condition that would interfere with her ability to manage normal activities apart from the possibility of a degree of minor subacrominal bursitis.”
Dr Bray also noted that repetitive strain injury arises from excessive use and is not the same as reflex sympathetic dystrophy which is usually associated with disuse and in this regard disagrees with Dr Ellis’s contention.
30. In a report dated 22 May 2003, Dr Gotis-Graham concluded that Mrs Ching had the following diagnostic entities:
·Bilateral rotator cuff impingement syndrome with bilateral bicipital tendonitis and left shoulder subacrominal bursitis.
·Bilateral forearm and elbow pain due to medial and lateral epicondylitis of the elbows.
·Chronic pain syndrome.
Dr Gotis-Graham also noted that the symptoms fluctuated in intensity and severity. He also noted that the above problems were exacerbated and perpetuated by anxiety and conflicts with her direct supervisors at work.
31. In a report dated 24 September 2003, Dr Whittaker, a consultant rheumatologist, noted anxiety and a lack of cooperation at examination of the upper limbs, as well as difficulty in eliciting answers to questions. Dr Whitaker observed that the ongoing complaints and physical examination are certainly not consistent with the minor pathologies which have been either demonstrated on ultrasound or suggested by previous medical practitioner. Dr Whittaker was unable to identify any physical disorder or ongoing disease condition or injury.
32. In an Administrative Appeals Tribunal Decision dated 12 August 2004, the Member found that Mrs Ching had suffered bilateral shoulder and left upper limb injuries that were caused by the repetitive duties she was required to perform. The member did not consider the compensable injuries to be yet permanent. As a consequence, liability was accepted to include bilateral bicipital tendonitis, subacromial and subscapularis bursitis, left forearm, wrist and hand injury.
33. In a report dated 26 December 2004, Dr Chase again noted that Mrs Ching’s overwhelming presentation was one of being anxious and pain focussed. Dr Chase concluded that Mrs Ching was suffering from bilateral upper limb pains of unknown or uncertain cause. Dr Chase also advised that the pain was so entrenched that pain management counselling would be of little assistance.
34. On 14 February 2005, Dr Chase reported on a work site inspection of Mrs Ching’s duties outlined in stages one to three of her upgrading rehabilitation program, and despite many misunderstandings and inadequacies of the programme nominated by Mrs Ching, Dr Chase was unable to see any difficulties whatsoever in Mrs Ching undertaking the proposed duties. It was noted that Dr Gotis-Graham and Dr Masters were invited, but unable to attend the inspection. Mrs Ching contested his report in detailed correspondence dated 1 May 2005 and requested her program not move beyond stage one.
35. On 18 July 2005, Mrs Ching lodged a further claim for compensation in relation to left and right upper limb pain, including shoulders, arms, elbows, wrists and hands, stated to have arisen as a consequence of undertaking busy and repetitive activities associated with a staff shortage due to large letter restructure. On 12 August 2005 Australia Post advised Mrs Ching that this was a continuation of a pre-existing claim and not a new injury.
36. On 22 July 2005 Australia Post issued a determination pursuant to section 37(7) of the SRC Act suspending Mrs Ching’s compensation rights under the SRC Act for failure to undertake the rehabilitation program nominated in the determination of 8 March 2005. Nevertheless, a further series of rehabilitation programs were determined on 9, 19 and 23 August 2005,1 September 2005 and 4 October 2005.
37. In a report dated 15 September 2005, Dr Chase, following a work site inspection, noted that Mrs Ching was a voluble historian, often contradicted herself; that he became confused as to what she meant when saying that her pains became worse as well as it being unclear as to whether her pains were worse; that Mrs Ching was keen to point out that Australia Post had not given her suitable duties from 2001 to 2004. At examination, Dr Chase noted a highly variable range of movement in both shoulders, as well as a full range of movements in both elbows and wrists. Dr Chase concluded Mrs Ching was overwhelmingly presenting with pain behaviour and complaints of pain which could not be verified by objective measures. This led Dr Chase in again making a formal diagnosis of bilateral upper limb pains of unknown or uncertain cause, and as a consequence, by all objective indicators, Mrs Ching as fit for full duties without restriction of any kind and able to undertakethe proposed rehabilitation program.
38. In a report dated 5 September 2005, Dr Gotis-Graham again nominated the diagnostic entities stated in his report of 22 May 2003, and added a further diagnosis of bilateral extensor tendonitis at the level of the wrist. In his assessment, Dr Gotis-Graham concluded that Mrs Ching’s problems are chronic and that she has tried a number of different therapeutic approaches to control her pain, including drug therapy, physical therapy, psychological counselling and rehabilitation programs – that he believed her to be compliant with such programs and that there has been no significant improvement in the follow up period, with it being highly unlikely that there would be any significant improvement in the foreseeable future.
39. In a report dated 28 September 2005, Dr Ellis, following re-examination of Mrs Ching, concluded that she had a repetitive strain injury, which in his opinion is not a psychological injury.
40. On 3 November 2005 Mrs Ching lodged a further claim for compensation in respect of pain in both shoulders, arms, elbows, forearms, wrist and hands as a consequence of being transferred from large letter sorting to small letter sorting and the repetitive work involved. Issues over the processing of this claim arose, with advice provided to Mrs Ching of 29 November 2005 that the claim was merely a continuation of symptoms relating to the earlier claim. Further on 1 December 2005, Australia Post determined not to accept incapacity claims for various dates in November 2005, because the medical evidence submitted did not give any evidence of any significant deterioration in her condition that would indicate Mrs Ching was unable to attend work. This determination was reconsidered and affirmed on 10 April 2006. On 2 December 2005 Mrs Ching lodged a claim for permanent impairment in respect of her physical injuries.
41. In the interim Mrs Ching, on 2 November 2005, had requested a reconsideration of her rehabilitation program dated 29 September 2005. On 7 December 2005 Australia Post affirmed the determination of 29 September 2005 and advised Mrs Ching that she was required to immediately commence participation in the upgrade of duties. A further proposed upgrading program was issued on 13 December 2005 (no change other than dates from program of 29 September 2005), with Dr Gotis-Graham opining on 22 December 2005 that Mrs Ching was not fit to perform pre-machine culling of redirected mail, mail quality checks, BCS mail quality check and not to use a computer for more than 15 minutes and that she continue to work with the program as outlined on 3 August 2005.
42. On 22 December 2005, Australia Post issued a determination suspending entitlement to compensation in respect of bilateral shoulder and arm injuries from incidents of 31 August 2001 and 15 February 2002 pursuant to section 37(7) of the SRC Act, in that they were satisfied that Mrs Ching had refused to undertake the rehabilitation program dated 29 September 2005 without reasonable cause.
43. In a report dated 2 February 2006, Dr Maxwell, a consultant orthopaedic surgeon, noted that it was difficult to obtain a comprehensive history mainly because of a language barrier and that Mrs Ching was somewhat anxious. Dr Maxwell could find no convincing evidence that Mrs Ching has subacromial bursitis, supraspinatus tendonitis, medial or lateral epicondylitis, extensor tenosynovitis, De Quervain’s syndrome, carpal tunnel syndrome, non flexor tenosynovitis of either arm. Dr Maxwell considered Mrs Ching has a perception of pain without any organic basis for the pain.
44. In a report dated 10 February 2006, Ms Barta, a clinical psychologist, noted that Mrs Ching reported that physiotherapy and conventional medical treatments helped her to some extent, but her chronic pain syndrome and her concerns about her condition did not subside. Ms Barta also noted that Mrs Ching appeared in an anxious state with rapid verbalisation, that she became hyper vigilant to cues of others in the work place and became painstakingly thorough, even obsessional about the correct procedures to be observed. Ms Barta concluded that Mrs Ching suffered from an adjustment disorder with anxiety, together with interpersonal and organisational conflict at the work place. In summary assessment, Ms Barta stated that Mrs Ching suffers from intermittent pain that increases with inappropriate activity and stress. Her ongoing psychological stressors intensify the pain response and expand the range of symptoms creating a psychological disorder as specified.
45. On 2 May 2006, Dr Walden, a consultant psychiatrist, in a report noted that Mrs Ching presented as being very pre-occupied with her experience of pain, speaking of it repetitively, despite the questions asked. Dr Walden concluded that Mrs Ching has been extremely pain focused and that Mrs Ching is genuinely distressed by her experience of pain. Dr Walden considered Mrs Ching to be fixated on her interaction with her work supervisor, this probably being an aspect of her personality style. Dr Walden concluded that Mrs Ching suffers from chronic pain of unknown aetiology, with no clear underlying psychiatric disorder in terms of anxiety or depression that would render her unfit for work.
46. On 18 May 2006, Dr Gotis-Graham issued an opinion which detailed Mrs Ching’s work restrictions in which he stated that she was not fit to upgrade her work program as detailed on 4 December 2005 and was not fit to perform pre-machine culling of redirected mail, Central West Mail Quality checks, BCS main quality checks, visual check labels on MLCOR, not fit to perform keyboard training on the type quick program for video coding or to visually check labels on BCS.
47. On 26 July 2006 Dr Chase noted that Mrs Ching talked constantly and with great passion about her pain. At examination, Dr Chase noted a full range of movement in both shoulders, elbows and wrists, no evidence of shoulder girdle muscle wasting, no evidence of crepitus in either shoulder and that all movements resulted in Mrs Ching stating she had significant pain. Dr Chase continued to opine that Mrs Ching suffered from “self reported upper limb pain” with no “objective signs to support a specific diagnosis.” Dr Chase was of the opinion that Mrs Ching could increase her duties, work full hours and return to full duties.
48. On 10 August 2006, Dr Maxwell noted that at examination that Mrs Ching was somewhat anxious and that she had a full range of movement in shoulders, elbows and wrists, albeit with complaints of tenderness in the upper limbs. Dr Maxwell expressed his opinion that he could make no organic diagnosis made on her signs and symptoms and that Mrs Ching did not need any restrictions on her work duties.
49. Dr Gotis-Graham in a series of reports dated 7 August 2006, 4 October 2006 and 7 December 2006 continued to reiterate the same work restrictions as nominated in his report of 18 May 2006.
50. At a second Administrative Appeals Tribunal hearing in September 2006, Dr Gotis-Graham, in oral evidence, concluded that Mrs Ching has a clinical diagnosis of tendonitis involving multiple tendon groups in both upper limbs, and a chronic pain syndrome and associated anxiety disorder. Dr Gotis-Graham considered the predominant cause of Mrs Ching’s chronic pain was the repetitive nature of the tasks performed over many years and that her initial problems were managed in a way that exacerbated the problems. Dr Gotis-Graham also observed that Mrs Ching was very pain focussed; very agitated and very intense and opined that anyone who is required to work in a situation where they have chronic pain and at the same time have to justify the cause of their pain to their immediate supervisors and the fact that they can’t do that work, and their livelihood may be at stake, are all issues which contribute to her anxiety and being pain focussed.
51. During cross-examination Dr Gotis-Graham confirmed that there were now no objective signs of tendonitis, including De Quervain’s tendonitis, or bursitis, nor medial or lateral epicondylitis, nor does Mrs Ching continue to suffer from a shoulder condition. Dr Gotis-Graham considered that Mrs Ching’s case was essentially a progression of tendon injuries in multiple places associated with a chronic pain syndrome. Dr Gotis-Graham also acknowledged that Mrs Ching was able to undertake the duties nominated in the video evidence, provided she could work at her pace and with adequate space between tasks.
52. At the same hearing, Dr Walden in oral evidence concluded that she was unable to find sufficient evidence to nominate that Mrs Ching was suffering from a psychiatric disorder and that as a psychiatrist there was no clear aetiology for her pain. Dr Welden also indicated that Mrs Ching did not exhibit any behaviour indicative of exaggeration of her pain symptomatology. Dr Walden also inferred that Mrs Ching was probably equating being asked to take part in a rehabilitation program as meaning she was not being believed and it was clear that she saw attempts to ask her to do things, or increase hours or change duties or whatever as meaning “I am not being believed that I have pain” and she was angry and upset about that.
53. Drs Chase and Maxwell also presented oral evidence at the hearing which was consistent with their later reports. In its decision, the Tribunal noted that Mrs Ching had consistently detailed the events which led to her complaints of pain in 2001 and over the period since then to the many consultants she had seen. After detailed consideration the Tribunal concluded that Mrs Ching did not have a reasonable excuse for not undertaking the rehabilitation program of 29 September 2005, as in their assessment it was a case of repeated pain in the absence of any identifiable objective pathology or evidence of a psychiatric cause.
54. On 20 March 2007, Australia Post issued a determination revoking Mrs Ching’s suspension of entitlement to compensation under section 37(7) of the SRC Act. A series of medical certificates were provided initially by Dr Masters in June 2007 indicating Mrs Ching was experiencing difficulty with her rehabilitation program. Dr Napper, consultant psychiatrist, provided a medical certificate on 8 August 2007 identifying Mrs Ching as suffering from chronic pain syndrome with secondary anxiety and stress, which in a further letter of 26 September 2007 he identified as arising from work-related factors.
55. As a consequence of her difficulties with her rehabilitation program, Dr Chase was asked to review Mrs Ching. In his report dated 5 July 2007, Dr Chase concluded after careful assessment that there was no change to his previous diagnosis and that Mrs Ching was fit to upgrade to unrestricted mail office duties. Dr Chase also commented that “it is somewhat baffling to me the extraordinary degree of energy that Mrs Ching has expended fighting the rehabilitation programme”.
56. An MRI scan of both shoulders and both arms was performed on 20 August 2007 and was reported by Dr Shnier, consultant radiologist, as demonstrating no abnormal pathology.
57. In a report dated 12 September 2007, Dr Champion, a consultant psychiatrist, noted that initially Mrs Ching had presented in a cooperative fashion while speaking in a barely audible whisper, but as she warmed to her subject of pain, harassment and bullying, she appeared to be angry and spoke in an angry fashion, particularly at the poor way in which she had been treated by her superiors. Dr Champion in recording that Mrs Ching had referred because of episodes of palpitation and associated anxiety, noted that anxiety and the response to fear have a genetic basis and that people who have panic attacks, agoraphobia and the anxiety states display in common a hypersensitivity to stress and further have little chance of permanent remission. Dr Champion commented that on the basis of presentation Mrs Ching appeared as an angry woman strongly, possibly obsessionally, focused upon complaints of pain and workplace harassment. Dr Champion concluded that from a psychiatric viewpoint Mrs Ching’s complaints do not support any primary psychiatric diagnosis, and that her presentation was consistent with the presence of obsessional features in her presenting style.
58. On 17 October 2007, Australia Post issued a determination denying the payment of compensation for permanent impairment in respect of bilateral upper limb and shoulder conditions. A reconsideration decision affirming the determination of 17 October 2007 was issued on 6 August 2008 – this being one of the matters for current review.
59. On 2 November 2007 Australia Post issued a determination that Mrs Ching did not have any present entitlement to the payment of compensation in respect of any bilateral upper limb or shoulder condition pursuant to sections 16 and 19 of the SRC Act. This determination was affirmed in a reconsideration decision dated 8 January 2008 – this being one of the matters for current review.
60. On 5 December 2007 Mrs Ching lodged a claim for compensation for “pain, anxiety, panic, palpitation, breathing difficulties, dizziness etc fear to have heart attack.” In a determination dated 11 December 2007 Australia Post denied liability in relation to this claim. This determination was affirmed in a reconsideration decision dated 8 January 2008 – this being one of the matters for current review.
61. On 16 January 2008 Australia Post issued a determination denying incapacity payment in respect of absence from work on 22 August 2007. This determination was affirmed in a reconsideration decision dated 21 February 2008 – this being one of the matters for current review.
62. On 7 July 2010 Mrs Ching lodged a claim for compensation for a permanent impairment in respect of a psychiatric condition. A determination dated 14 July 2010 was issued by Australia Post denying liability for permanent impairment for a psychiatric condition. This determination was affirmed in a reconsideration decision dated 13 August 2010 – this being one of the matters for current review.
63. Mrs Ching stated she was referred to Dr Napper in mid-2007 by Dr Masters. Mrs Ching detailed telling Dr Napper of her anxiety and the situations and pain which caused her anxiety and that she was forever worrying about her pain, wanting to get better, get back to full duty and a feeling of panic. The latter symptom Mrs Ching detailed had been present for a long time before she saw Dr Napper in May 2007, and that she had experienced a panic attack in March 2007, which she described occurring during an episode at work concerning the provision to her of the letter trays rather than having to get them herself as nominated in the rehabilitation program. This, in her opinion, required her to move some 200 metres to obtain the mail trays.
64. Further Mrs Ching indicated that the various duties in the program may have work stations up to 100 metres apart, with no time allowed for movement between such stations in assessing her work productivity for each activity in the program. As a consequence Mrs Ching stated that her supervisor would then question her as to why she refused the duty. Mrs Ching also expressed her opinion that the work schedule given to her by the supervisor was not in accordance with her understanding of the effect of the Tribunal decision to undertake the rehabilitation program as determined on 19 September 2005, as all restrictions seem to have been lifted and upgrades in March 2007 to the program seemed different to these upgrades determined in the September 2005 program, with allocation for time between tasks becoming non-existent as the program moves through stages one to three, as well as increasing the ability to lift from five to eight kilograms. Mrs Ching contended that as a consequence physically she had to carry more (greater than her weight restriction) and that this caused her increased pain, stress and anxiety culminating in a panic attack.
65. Mrs Ching stated as the year 2007 progressed, her duties did not change and she was expected to operate at full duty. Mrs Ching stated that her supervisor started timing her activities in June 2007 with Mrs Ching stating that she was unable to achieve the standard activities nominated because it was too fast. Mrs Ching indicated that a return to full duties was directed after the determination to cease compensation payments for the upper limb and shoulder conditions was made on 12 November 2007.
66. As a consequence of her return to full duties Mrs Ching stated she had much pain, panicked and could no longer do the tasks. Mrs Ching then took two months long service leave where she rested at home. Mrs Ching then went on sick leave and in April 2008 travelled to Hong Kong to assist her in handling the stress, caused in her belief by Australia Post attempting “to set her up”. In support of this contention Mrs Ching referred to a number of emails referring to Mrs Ching having to meet operational standards, with failure to meet prompting consideration of termination of employment. Mrs Ching’s employment was terminated in August 2008 and was subject to proceedings in the Australian Industrial Relations Commission.
67. Mrs Ching’s reinstatement action was unsuccessful and subsequently she has been receiving disability support pension. Mrs Ching states that her condition has not improved with pain ever present in both hands, both arms, elbows, forearms and wrists, upper arms and shoulders, with pain awakening her some nights around midnight. Mrs Ching described the pain coming on with small movements; limits her undertaking household duties (pain); has not much interest in socialising and feels depressed; experiences difficulty with grasping a cup and doing small things with her fingers, as well as with lifting; is able to drive a car but needs to take a break over longer distance; still experiences a lot of stress, distress and cries readily; has a loss of appetite, and no interest in shopping; relationships with family have deteriorated, with her husband doing most of the housework; is still receiving treatment from Drs Gotis-Graham (two monthly), Dr Napper (two weekly) and continues to take anti-inflammatory, anti-anxiety and antidepressant medication.
68. In cross-examination Mrs Ching confirmed that she had told Dr McGill in 2008 that since she stopped work in November 2007, the pain had remained the same, both in type and distribution and with the left more painful than the right. Mrs Ching also admitted to getting confused when consulting with Australia Post doctors, as she feels pressurised, but denied that it was to do with being exposed for making complaints which had absolutely no truth. Mrs Ching also denied that she was pretending to be weak in arm, shoulder and hand movements when examined by Dr McGill in mid 2010. Mrs Ching also denied less than fulsome efforts when holding and writing with a pen and could not remember handling paper clips at the same examination. Mrs Ching confirmed that she told Dr McGill that she always had trouble with gripping
69. Mrs Ching denied that she adopted a posture in which she walked into Dr Maxwell’s room on 29 June 2010 holding both arms straight, although stating that there is less pain when she holds her arms straight. Mrs Ching also denied that she was pretending to be more restricted that she was at the same consultation when she was observed moving her hands and arms normally.
70. Mrs Ching confirmed that she had told Ms Drobny, a clinical psychologist, that she had panic attacks between 2004 and 2007 on many occasions, often unexpectedly, sometimes in unfamiliar places, in crowded places, when alone and as a consequence she tended to avoid social occasions, shopping centres and driving – although she continues to undertake the latter, but with limitations of mainly time of driving. Mrs Ching admitted to travelling to Hong Kong via Macau in April 2008, but detailed that this was with her family, with the trip lasting two weeks and the main purpose was to get away from stress associated with her employment at Australia Post. Mrs Ching concluded that her trip was beneficial to her in that regard, despite her comment to Dr Champion that she was scared to go out. Mrs Ching denied that her panic attacks were efforts to persuade people that she had an illness that she did not have.
Further Medical Evidence
71. Dr Gotis-Graham, consultant rheumatologist, provided a further series of reports dated 22 September 2008, 20 November 2009, 1 March 2010, 5 March 2010, 20 April 2010 and 17 June 2010. Dr Gotis-Graham continues to diagnose Mrs Ching as suffering with diffuse tendonitis involving multiple tendon groups in the upper limbs, chronic pain syndrome and anxiety. Dr Gotis-Graham considered that in the light that all treatment modalities have been tried, it is highly unlikely that her current situation will improve. Dr Gotis-Graham stated in his report of 20 November 2009:
“If her employer had adhered to the restricted work duties that I outlined, it is possible that Mrs Ching may have overcome the initial tendon injuries and may have recovered fully … Intercurrently, Mrs Ching developed a chronic pain syndrome. I feel that this is a result of a hostile work environment and significant anxiety over her ongoing pain and the compensation process”.
72. In oral evidence Dr Gotis-Graham confirmed that by August 2002 Mrs Ching was demonstrating symptoms of anxiety and frustration arising from her workplace not taking notice of her doctor’s workplace restrictions and that these symptoms were a significant factor in her symptom complex at that stage. By 22 May 2003, Dr Gotis-Graham included a diagnosis of chronic pain syndrome in the diagnostic matrix, as Mrs Ching’s complaint of pain was more persisting and clearly not improving, even when taking breaks or going away on holidays. By 22 April 2004 Dr Gotis-Graham recommended that Mrs Ching be placed on permanent light duties. Dr Gotis-Graham also noted that Mrs Ching’s pain symptoms in the upper limbs have fluctuated in intensity over time; that Mrs Ching was compliant with her treatment protocols. Further Dr Gotis-Graham clarified that his diagnosis of diffuse tendonitis was just to document for himself that over the years there had been evidence of tendonitis but by 2008 it was not really possible on history or examination to find specific discrete evidence of tendonitis. Further Dr Gotis-Graham concluded that after 2004 he would have found it difficult to identify the discrete tendon injuries and overuse problems she had in the early years. Dr Gotis-Graham had no doubts at any stage that Mrs Ching was not telling the truth.
73. In response to questions in cross-examination Dr Gotis-Graham affirmed that he was unable to offer an exact diagnosis for the left hand and forearm pain in a report dated 5 August 2002. Further Dr Gotis-Graham agreed that from his earliest consultation with Mrs Ching, some of her symptoms were vague and that she was anxious about her relationship with her supervisors and that she was reporting to him that they were not adhering to restrictions that he had outlined. Dr Gotis-Graham concurred that when expressing an opinion as to Mrs Ching’s ability or inability to do particular work, he was reliant upon Mrs Ching’s particular description of the work.
Dr Beer – consultant Orthopaedic Surgeon
74. In a report dated 31 March 2010, Dr Beer, a consultant orthopaedic surgeon, detailed a history given to him by Mrs Ching, detailed his clinical examination findings which included tenderness over both medial and lateral epicondyles of both elbows and in the flexor tendon region of the flexor tendons in the palm of the second, third and fourth digits of both hands and a mildly positive Finkelstein’s test in the right wrist. Dr Beer considered that Mrs Ching had suffered a degree of rotator cuff capsulitis of both shoulders, a degree of medial and lateral epicondylities of both elbows consistent with the work related duties of coding and an increased rate of coding together with further stress arising from the task of dealing with an increased rate of articles in the coding and mail sorting. Dr Beer also noted an overreaction to pressure on light touch when assessment was undertaken on both epicondyles.
75. In a report dated 12 July 2010, Dr Beer, in reliance upon the history given to him by Mrs Ching, assessed the level of permanent impairment at 10% for both arms pursuant to Table 9.4 of the Guide to the Assessment of the Degree of Permanent Impairment – Comcare, 1st ed (the Guide) as Mrs Ching had difficulty doing up her shoelaces or manage paperclips – matters reported to him by Mrs Ching, but not confirmed at the examination advised in his report of 6 October 2010.
76. In oral evidence, Dr Beer stated that he found Mrs Ching to be cooperative, anxious but pleasant at the time of his examination in March 2010. Dr Beer confirmed the diagnostic matrix to include rotator cuff (adhesive) capsulitis of both shoulders, a degree of medial and lateral epicondilitis of both elbows, and a mild degree of De Quervain’s tenosynovitis of the right wrist.
77. In cross-examination, Dr Beer agreed that in the absence of MRI scan evidence of medial or lateral epicondylitis he was reliant upon Mrs Ching making complaints of pain in the relevant area, as well reporting tenderness at examination of the areas, as he would in relation to other areas where tendonitis is present. Further he would expect consistency in the presence of tenderness in examinations conducted within months of each other. Upon further questioning Dr Beer agreed to the concept that the diagnostic matrix nominated by him was present in the past and has settled down … but not completely.
Dr McGill – Consultant Rheumatologist
78. Dr McGill, a consultant rheumatologist, in a report dated 29 September 2008, detailed that Mrs Ching reported that when she uses her hands, she experiences pain radiating up both forearms to either medial or lateral aspects of her elbows and then further up to the shoulders. At examination Dr McGill recorded a full range of movement of finger, wrist, elbow and shoulder bilaterally, with discomfort recorded along the dorsum of each forearm in response to passive dorsiflexion of the wrists and the volar aspect of each forearm when performing passive palmer flexion of both wrists.
79. In summary opinion, Dr McGill concluded that on two occasions he has seen Mrs Ching there has been no evidence of a physical disorder.
80. In a further report dated 5 July 2010, Dr McGill commented that Mrs Ching was a poor to fair historian, with her comments at times being contradictory. At examination Dr McGill recorded that Mrs Ching performed hesitant and slow movements throughout both upper limbs; that she reported tenderness diffusely throughout both upper limbs, including shoulders and she demonstrated profound weakness of all muscle groups in both upper limbs with the pattern of weakness in keeping with a lack of effort/cooperation.
81. In summary opinion Dr McGill concluded that there is no physical explanation for her symptoms, and this has been so since May 2002. Dr McGill noted that there has been very careful investigation of her condition and none, apart from a thickening of the left subdeltoid bursa, have revealed any evidence of tendinopathy. Dr McGill also detailed a nil impairment pursuant to Tables 9.1 and 9.4 of the Guide, as there is neither a physical disorder present and any movement assessment he considered not genuine because of lack of cooperation and her pattern of behaviour.
82. In oral evidence, Dr McGill confirmed that in May 2002, he did not think there was any organic condition continuing to influence her symptoms, although he did acknowledge that it was quite likely that her work duties did make a contribution towards her previous shoulder symptoms. Dr McGill detailed the circumstances which led to a conclusion of a lack of cooperation by Mrs Ching during examination in both his first and third examination.
83. In cross examination, Dr McGill confirmed that Mrs Ching was very anxious at the examination in May 2002, an issue which he did not further explore. Also in this report of 2002 Dr McGill used a similar term and concludes “I think it is clear that anxiety and unhappiness in her workplace is making a substantial contribution to her symptoms”.
Dr Maxwell – consultant orthopaedic surgeon
84. In a report dated 18 June 2010, Dr Maxwell, a consultant orthopaedic surgeon, noted a history of continuing to experience pain in both shoulders coupled with a restriction of flexion and abduction despite the fact that she has not worked for two and a half years. Dr Maxwell noted that Mrs Ching was not expending maximum voluntary effort during examination of shoulders and wrists as well as at times she adopted abnormal postures and other times moved normally. Dr Maxwell was of a view that there was no objective abnormal signs, and where there is no pathology causing the condition there is no justification to continue to treat the patient nor is there any permanent impairment pursuant to Table 9.1 of the Guide.
85. In oral evidence Dr Maxwell confirmed that he was unable to adduce any clinical signs to support a diagnosis of tendonitis in the upper limbs during the period of his many examinations since 2 February 2006, nor did he find any evidence of bursitis or capsulitis.
86. In response to questions in cross examination Dr Maxwell admitted that he was not fully aware of the details of the work events causing Mrs Ching’s symptomatology in 2001, but agreed that the kind of work described to him could involve irritation of the rotator cuff. In 2006 Dr Maxwell noted that Mrs Ching was somewhat anxious and complaining of widespread pain in both arms, which became worse with physical activity – a complaint about which Dr Maxwell felt that Mrs Ching was telling the truth.
Dr Drobny – consultant clinical psychologist
87. In a report dated 8 July 2010, Dr Drobny, a clinical psychologist, noted that she had seen Mrs Ching for initial assessment on 26 March 2010 on referral from Dr Napper. Dr Drobny records a history given by Mrs Ching of being injured at work in 2001 involving left and right arms which caused pain on a daily basis she reported the injuries to her arms and shoulders restricted her work place duties, requiring her to obtain medical certificates. She described some inconsistencies between the medical certificates and those she was instructed to perform. She described harassment from her employer in relation to her duties and injury status, with her position terminated in 2008.
88. Mrs Ching reported panic attacks between 2004 and 2007, which occurred out of the blue in unfamiliar places, in crowded situations, alone, and when asleep, which led her to avoiding social situations or places.
89. Dr Drobny concluded that Mrs Ching met DSM-IV criteria for the diagnosis of panic disorder with agoraphobia and for major depressive disorder in the light of the symptoms she detailed. Dr Drobny detailed how Mrs Ching related well to the information presented regarding anxiety, panic and depression, but limited family support and depression and her extreme preoccupation with her perceptions of injustice from Australia Post impede her recovery process, with the latter likely to continue to contribute to and exacerbate her stress and depression.
90. In telephone evidence, Dr Drobny explained her special interest was in the interest of panic disorder, agoraphobia and anxiety and that she was the head of the Anxiety Treatment Research Unit at Westmead Hospital. Dr Drobny also confirmed that in Mrs Ching’s clinical history there was nothing that may have contributed to her current presentation prior to what she reported as the stresses she experienced while working for Australia Post. As such Dr Drobny said she was at a loss to explain why this lady was so vulnerable. Dr Drobny stated that she had seen Mrs Ching on 21 occasions for an hour each time and her view was that Mrs Ching was an anxious person arising from something that happened in her life, namely the ongoing chronic stresses which she experienced from working with Australia Post. Dr Drobny confirmed that Mrs Ching’s reported symptomatology satisfied the diagnostic criteria for panic disorder with agoraphobia nominated in DSM-IV and also the criteria for major depressive disorder. Dr Drobny also observed Mrs Ching having episodes of hyperventilation and difficulties with manoeuvring the car in a car park which she considered to be indicative of anxiety. Dr Drobny acknowledged that such behaviours exhibited by Mrs Ching could be fabricated, but in Mrs Ching’s case she did not believe she was feigning as everything was consistent and she was unable to find any reason why she would feign the symptoms.
91. In response to questions in cross examination Dr Drobny stated that even though she could be of no help to Mrs Ching, Mrs Ching elected to continue to seek counselling sessions which Dr Drobny thought was an opportunity for Mrs Ching to talk and get some support in an environment of limited options. Dr Drobny also considered Mrs Ching was more concerned with getting her old life and her physical mobility back rather than being concerned with issues of secondary gain of compensation, although she argued that continued consultations with her, and assistance from family could be construed in such a light – but not in this case. Dr Drobny argued that she had assessed there was some ongoing physical pathology and confirmed that the panic attacks were ongoing, and the history of such was based on self reporting by Mrs Ching. Dr Drobny concluded that Mrs Ching’s travel to Hong Kong may or may not have been a beneficial experience, but the fact that her mother had to visit her at the hotel from Kowloon, would indicate, if she was utterly genuine, that she was very disabled. Dr Drobny, when asked to assume that there had been no organic basis for Mrs Ching’s pain, concluded that such would alter her assessment and make her think more of a conversion disorder.
Dr Napper – consultant psychiatrist
92. In a report dated 11 October 2007, Dr Napper, a consultant psychiatrist, detailed a history related by Mrs Ching which commenced with an injury in 2001, and as a consequence of her work developed a repetitive strain disorder with chronic pain in shoulders, elbows and wrists. Dr Napper records that Dr Gotis-Graham had detailed a large number of work restrictions for Mrs Ching, and of late Australia Post has put pressure on Mrs Ching to ignore those restrictions, which had resulted in Mrs Ching experiencing increased amounts of pain, which made her anxious. Dr Napper notes variation in Mrs Ching’s level of pain with improvement when she had days off. Dr Napper notes that the stressful interactions with Australia Post have made her feel anxious as far back as 2001, but have increased in recent months to the point that she now has regular panic attacks.
93. At examination Dr Napper noted that Mrs Ching appeared moderately anxious. Dr Napper concluded that Mrs Ching developed a panic disorder and that there were no inherent personality traits that predisposed Mrs Ching to developing panic disorder and that the work factors are solely responsible for the psychiatric disorder.
94. In a further and somewhat more detailed report dated 6 November 2007, Dr Napper further details his understanding of the work environment and contribution to Mrs Ching’s ongoing psychiatric disability. Further, he is critical of Dr Champion’s opinion in relation to the presence of panic attacks and the absence of a psychiatric disorder, and also over the issue of obsessional personality structures, requiring the presence of an obsessional personality trait and obsessional symptoms which have only occurred since the injury in 2001. In Dr Napper’s opinion the obsessional features are simply a reflection of the anxiety condition and anxiety symptoms Mrs Ching has been experiencing since 2001.
95. In a report dated 2 August 2010, Dr Napper notes that Mrs Ching’s panic disorder had not improved and that as a result she has developed agoraphobia and a major depressive disorder and detailed the symptoms relevant to both diagnoses, and treatment rendered. Dr Napper remains firm in his opinion that her current condition has been caused by her employment.
96. In telephone evidence, Dr Napper indicated that he had seen Mrs Ching approximately 100 times since 18 July 2007. Dr Napper confirmed that an obsessional personality structure is long standing and has its origins in childhood or teen years, and that there is no evidence of this in Mrs Ching’s case. Dr Napper when asked to consider the circumstance that there was no organic condition predating the development of the psychiatric disorder, stated that it would change the case dramatically, because this case is basically about someone who has developed a psychiatric disorder as a result of a number of factors, namely the presence of a physical disorder, difficulties experienced at trying to rehabilitate back to work, difficulties associated with speed of work expected, and conflict over Dr Gotis-Graham’s restrictions at work and the observation thereof. Dr Napper stated that there had not been a lot of shift in clinical picture over the last three years, and in his opinion does not fit into either a diagnosis of malingering or factitious disorder.
97. In answer to questions in cross examination Dr Napper considered that Mrs Ching’s psychiatric condition was entrenched and self perpetuating.
Dr Morse – consultant psychiatrist
98. In a report dated 13 November 2008, Dr Morse, a consultant psychiatrist, detailed a history of Mrs Ching experiencing pain in left hand, arm and shoulder while undertaking repetitive work in August 2001. Despite being issued with a medical certificate restricting her work activities Mrs Ching reported that this was ignored and she was made to continually do heavy lifting and repetitive work. The pain was described as getting worse and, as a consequence, she developed discomfort in the right hand from overuse, which has continued to this time. She described similar circumstances about non-compliance with doctor’s certificate post a favourable decision in 2004, and experienced her first panic attack in May 2007 in response to pressure from Australia Post to do heavy work in spite of the pain and was subjected to rudeness and harassment. Dr Morse notes that Mrs Ching has felt anxious and tense since 2002 because of the attitude of Australia Post.
99. In his summary opinion Dr Morse accepted Dr Gotis-Graham’s diagnosis that Mrs Ching has an ongoing physical disability arising from a diffuse tendonitis of the upper limbs and a chronic pain syndrome. He also opined that he did not consider that there are any psychological or emotional factors playing a significant part in the causation of her physical symptoms, disability and impairment. Nevertheless he further stated that she has had a secondary psychological response to the pain. Further he concluded that given her state, the history obtained and the opinion referred to, he did not consider a psychiatric diagnosis of chronic pain disorder was warranted.
100. In a further report dated 15 February 2010, Dr Morse commented that Mrs Ching was still in the same state as previously seen, although there were indications at interview that she believes she has become worse. He traversed similar material to that in his earlier opinion.
101. Dr Morse concluded that on this occasion Mrs Ching was suffering from a pain disorder, for the reasons nominated, namely:
·It is a diagnoses made by Dr Gotis-Graham
·The nature of the pain
·Influence of her experience of pain of the psychological and other factors stemming from her employment with Australia Post.
Dr Morse also considered that Mrs Ching satisfied the criteria for a diagnosis of adjustment disorder with moderate depression and marked anxiety as well as panic disorder. Dr Morse considered that Mrs Ching was unfit for work due to her psychiatric conditions and had a permanent impairment because of those conditions of 15%.
102. In oral evidence, Dr Morse explained why he did not think Mrs Ching had a pain disorder in his first report of 13 November 2008 as it appeared that Mrs Ching’s pain was due to tenosynovitis (relying on report of Dr Gotis-Graham); that Mrs Ching did not seem preoccupied with the pain as opposed to being concerned, with the emotional reaction associated with doing things more than the cause of the pain; that she did not concentrate on it (pain) to him that she appear to have done to other practitioners and that he continued to assume there was some underlying pathology.
103. Dr Morse explained that Mrs Ching’s preoccupation with pain and the way she perceives herself treated by Australia Post causes her to dwell on the pain and the circumstances which caused the pain, and this in turn causes the pain to get worse. Secondly, anxiety and depression tends to make an individual focus on the pain and other unpleasant stimuli as well as concentrating on the original cause of the pain, which in turn causes an intensification of the perception of the feeling of pain.
104. Dr Morse noted that Mrs Ching was anxious at both consultation, but noticeably agitated and tense at the second interview in 2010. Dr Morse concluded that Mrs Ching had a sustained period of anxiety, tension, worry, concern, and some physical symptoms prior to the onset of her panic attacks.
105. In detailed exposition of the psychiatric diagnosis, Dr Morse concluded that in accordance with the diagnostic criteria nominated in DSM-IV Mrs Ching suffered from a pain disorder associated with a general medical condition and a psychological condition – being a complex interaction of the original pain, the possibility of some still underlying pathology (difficult to assess), the presence of some neuro-physiological factors and the psychological effect of anxiety, preoccupation and depression. Dr Morse also detailed his analysis that led to a diagnosis of chronic adjustment disorder with moderate depression and marked anxiety, but was unable to make a diagnosis of major depression.
106. In response to questions in cross examination, Dr Morse acknowledged that a person who complains of a pain in particular place which never ever had any organic basis is unlikely to be explained by way of a panic disorder.
Dr Champion – consultant psychiatrist
107. In a report dated 29 October 2008, Dr Champion, a consultant psychiatrist, noted that from the outset of his examination Mrs Ching appeared sullen and angry, that she spoke extremely rapidly and with significant emotion about the fact she was to be terminated from employment. Dr Champion noted that Mrs Ching indicated in vague fashion that the pain in both upper limbs extended from the shoulder to the finger tip, and that the pain had come slowly and insidiously since its onset in 2001. Dr Champion commented that Mrs Ching held an intense focus upon her victimhood and the claimed poor behaviour of her employer, so much so that Mrs Ching found difficulty to provide reasonable answers to questions put to her.
108. Dr Champion commented that Mrs Ching’s situation has changed a little (employment termination) since his report of 12 September 2007, but she still claims very much the same physical symptoms. Dr Champion makes two further observations, namely:
·If Mrs Ching is suffering with panic disorder then this, in his view, would relate to the perceptions held by Mrs Ching that she is an unfairly treated victim of the system in relation to her persisting complaints of bilateral upper limb pain and disability.
·He does not believe that Mrs Ching is suffering from either hysteria or a psychosomatic condition as the cause of her claimed physical symptoms, but rather ongoing outrage at what she considers unjust control of the manner in which she believes she should be allowed to work.
109. In Dr Champion’s opinion there is no specific diagnosable psychiatric disorder at present.
110. In a further report dated 12 July 2010 Dr Champion again noted that Mrs Ching spoke in a voluble angry fashion without specifically attempting to answer any of the inquiries made of her, but she did not appear depressed or anxious. Dr Champion again concluded that currently Mrs Ching was not suffering with any diagnosable psychiatric disorder and that Mrs Ching did not have any permanent impairment pursuant to Table 5 of the Guide.
111. In telephone evidence, Dr Champion confirmed his opinion as to the absence of any diagnosable psychiatric condition applicable to Mrs Ching, having considered Mrs Ching’s complaint of pain and found them not consistent with a diagnosis of pain disorder. Dr Champion suggested there was a vague possibility of a panic attack and that there was little difference at her presentation at all three examinations, but her history did not suggest a great restriction of activity associated with a diagnosis of agoraphobia. Dr Champion also stated that he found no evidence in her complaints or her presentation that was consistent with what one would expect in an individual suffering either depressed mood associated with an adjustment disorder or with major depression.
112. In response to questions in cross examination, Dr Champion admitted that he did not elicit any details of the circumstances surrounding a physical injury said to be suffered by Mrs Ching in 2001, but did assume the injury arose as a consequence of repetitive work, which in turn led him to conclude that the nature of her symptoms were consistent with the syndrome of repetitive strain injury. Dr Champion admitted to a two page discussion in his report of this syndrome with reference to essentially historical material which essentially discredits the syndrome as an entity. Dr Champion also concurred with the comment that currently occupational overuse syndrome (equates to the earlier RSI syndrome) is a controversial but not thoroughly discredited diagnosis. As a consequence Dr Champion agreed that the more information about the original injury and its progress would certainly assist in the accuracy of a diagnosis.
113. In relation to malingering and hysteria, Dr Champion commented that the whole matter swings on conscious awareness of the act of complaining of something, that is in the mind whether it’s a conscious motivated thought or unconscious unmotivated thought, with adequate consideration to the background of the individual to further assist delineation – the background defining vulnerability towards having all sorts of symptoms. In this matter of Mrs Ching, Dr Champion agreed that on the assumption that Mrs Ching is an honest reporter of her symptoms there may be either an organic explanation, a psychological explanation or a mixture of the two, and he further agreed that it is very difficult if not impossible to choose between the three. Dr Champion also agreed that there could be a case made for Mrs Ching to have developed some form of adjustment disorder possibly with anxiety and depression on the basis of her perceptions in relation to her conflicts with Australia Post.
Consideration and findings
114. This matter has a long and complex history. I have been particular in this decision to outline a synopsis of much of the material which is in evidence before me, but not necessarily all the material. I note that such material includes material which was in evidence at two earlier Tribunal hearings and the outcomes determined at the conclusion of those two hearings. I acknowledge that I was involved in the second hearing which was tasked with determining whether Mrs Ching had a reasonable excuse for failing to undertake a rehabilitation program. Further, while I was invited to consider the evidence, including the oral evidence given during the second hearing, there was no suggestion from either party that the two prior decisions be disturbed.
115. In preliminary comment I have observed Mrs Ching giving evidence over many days and on two occasions as well as observing her interactions at the workplace with her supervisor and superiors during a workplace inspection in late 2010. I consider Mrs Ching to be an intelligent individual, who has presented to the Tribunal a relative consistence in the manner with which she has given her evidence. At time she has been excitable and voluble, not necessarily answering questions directed to her, but embarking on an answer which is reflective of her anger and her fixation on her complaint of pain and the difficulties she perceived to have experienced in the workplace. At other times she has demonstrated particular mannerisms and complained of difficulty in concentration and becoming confused when addressing issues to do with views expressed by the Respondent’s doctors. I observed that Mrs Ching appeared much more comfortable in dealing with issues associated with reports or comments from her nominated clinicians. I also observed that Mrs Ching appeared hostile towards comments made in reports made by Dr Champion, which in her view did not represent a correct version of what she was quoted as saying.
116. In an overview analysis of the many medical specialists reports and opinions in this matter, it is observed that the Respondent’s doctors (Chase, McGill, Whittaker, Maxwell, Walden and Champion) found Mrs Ching not to be a good historian, uncooperative, voluble, angry, hostile, contradictory, fixated and pain focused. On the other hand her own doctors (Gotis-Graham, Masters, Napper, Morse, Drobny) appeared to elicit a longitudinal history with less difficulty, but did in general draw attention to her pain focus and her fixation on her employer’s failure to observe medical restrictions imposed.
117. Similarly, when reporting upon Mrs Ching’s responses during clinical examination, the Respondent’s doctors notes a lack of cooperation during examinations, failure to demonstrate full strength when asked to move her upper limbs (McGill), abnormal illness behaviour (Chase), or not expending maximum voluntary effort during examination (Maxwell). Her own doctors (Gotis-Graham, Masters, Napper, Morse, Drobny and Beer) appeared to be more accepting in their reports with opinions focusing on Mrs Ching’s pain focus and fixation on Australia Post failing to adhere to her doctors’ medical restrictions.
118. In turning to address the origins of this matter I conclude from all the material before me that:
·Mrs Ching has not had defined in either her past personal history or work history any evidence of a particular personality structure (Walden, Morse, Champion, Napper, Drobny, Barta) or previous injury prior to commencing work with Australia Post in 1988.
·Between 1988 and 2000, there is no material before me which suggests that Mrs Ching suffered either a physical or mental episodes of significance either at work or at home.
·The episode which gave rise to Mrs Ching’s initial claim for compensation on 9 October 2001 for pain and soreness in left arm had an antecedent history of complaints of pain associated with coding activities on the Spectrum 10 machine, amelioration of pain when on holidays and disputation with the supervisor over the coding rate shift and the length of the coding shift, together with imposition of medical restrictions.
·Mrs Ching’s claim was denied on 23 October 2001 on the grounds that it was not a specific incident, that it was not a work related injury and nothing to explain why normal duties in the left arm would cause the pain, when it had not done so before given the length of her employment.
·Despite receiving advice from Dr Gotis-Graham that Mrs Ching had suffered bilateral work related biciptal tendonitis, with radiological evidence of bursitis (Dr Johnson) on 7 November 2001, Australia Post issued a reviewable decision affirming denial of liability on 30 November 2001.
·On 7 December 2001 Australia Post issued a further determination which varied the earlier determination and accepted liability, and accepted to pay compensation for medical expenses but not for incapacity.
·Mrs Ching continued to work under restrictions nominated by Dr Gotis-Graham and continued to experience pain. On 15 February 2002 Dr Chase opined that Mrs Ching probably had a work related bilateral shoulder impingement, but was fit to undertake a proposed rehabilitation program, albeit that she was worried and pain focused. A further claim for compensation in relation to the left wrist and hand was lodged in 4 March 2002. Dr McGill confirmed on 3 May 2002 that it is probable that Mrs Ching had suffered bilateral shoulder impingement problems, but no organic diagnosis was available for her left hand problems and that there was no ongoing physical disorder relating to her work. Dr McGill also observed a lack of cooperation at physical examinations. As a consequence compensation was denied in relation to the left hand and ceased in relation to both shoulders.
·By 5 August 2002 Dr Gotis-Graham observed that no organic cause for the left hand and forearm pain could be found, Dr Gotis-Graham noted at this stage that chronic pain behaviour was a significant factor contributing to her presentation together with Mrs Ching’s anxiety and frustration arising from her interacting with her supervisor at work in that she believed that they were not taking any notice of her complaints , nor of particular restrictions recommended by her doctors applicable to her work duties.
·Mrs Ching made further claims for compensation on 4 April 2003 and on 4 July 2003, both of which were denied, after consideration of reports from Dr Bray (no evidence of any pathological orthopaedic condition), Dr Ellis (repetitive strain injury) and Dr Gotis-Graham (bilateral rotator cuff syndrome and chronic pain syndrome).
·By May 2003 Dr Gotis-Graham was noting that Mrs Ching’s symptoms were fluctuating in intensity and severity and exacerbated by anxiety and conflict at work. In September 2003 Dr Whittaker observed that the ongoing complaints and physical examination are not consisted with the minor pathologies previously noted.
·I note that in August 2004, at the first Tribunal hearing, a finding was made that Mrs Ching had suffered bilateral shoulder and left upper limb injuries and that they were caused by repetitive duties she was required to perform.
119. In analysing this material in hindsight I would conclude that the material defines that by this stage, Mrs Ching’s major symptom was of continuing pain in the upper limbs, that she was anxious and very much pain focused, that there had been a long history of Mrs Ching experiencing interpersonal difficulties with her supervisors surrounding acceptance/non-acceptance of her complaints and issues undertaking her work duties, and acceptance/non-acceptance of workplace restrictions imposed by her doctors. It is also evidence that a significant body of clinical opinion stating that firstly there had been a work related injury to both shoulders and secondly that there was no longer any organic evidence of such. Also evident was clinical material suggesting complaints of pain for which no organic cause could be identified, material pointing to non-cooperation by Mrs Ching during aspects of the physical examination and material pointing to a diagnosis of chronic pain syndrome.
120. In the period between the first and second Tribunal hearing I draw the following conclusions:
·Dr Chase continued to note that Mrs Ching was anxious and pain focused and was suffering from bilateral upper limb pain of uncertain cause (report of 26 December 2004).
·Focus remained on Mrs Ching’s process of upgrading through the stages of her rehabilitation program with difficulties arising from Mrs Ching’s beliefs, her own doctors’ recommendations as to restrictions, and the failure of her doctors to respond to an invitation to a joint workplace inspection with Dr Chase who had endorsed the rehabilitation program. Over the ensuing months continued disputation occurred over the appropriateness of the rehabilitation program and following further assessment in September 2005, Dr Chase concluded that Mrs Ching was overwhelmingly presenting with pain behaviour and complaints.
·At the same time Dr Gotis-Graham continued to endorse his earlier diagnostic entities nominated in his report of May 2003. Dr Gotis-Graham noted that Mrs Ching’s condition was chronic and that it is highly unlikely that there would be any significant improvement in the foreseeable future.
·By December 2005, there was much material suggestive of continuing disputation over aspects of the rehabilitation program with Dr Gotis-Graham nominating restrictions of Mrs Ching’s work duties, as a consequence of the description of what the duties involved.
·Mrs Ching’s entitlement to compensation was suspended on 22 December 2005 on account of failing to undertake her rehabilitation program without a reasonable excuse.
·Reports in February 2006 from Dr Maxwell (no evidence of a physical upper limb disorder) and Ms Barta (anxiety, interpersonal and organisational conflict at the workplace, obsessional about correct procedures) and Dr Walden in May 2006 (preoccupied with experience of pain, pain focused, genuinely distressed, fixated on interaction with supervisors, chronic pain of unknown aetiology, no clear underlying psychiatric disorder).
·Further reports from Dr Gotis-Graham, Dr Chase and Dr Maxwell throughout 2006 continued to reiterate their earlier opinions, with the latter two recommending Mrs Ching was fit to resume full duties.
·At the second Tribunal hearing in September 2006, Dr Gotis-Graham confirmed that there was no objective signs of tendonitis and observed that Mrs Ching’s condition was a progression of tendon injuries associated with a chronic pain syndrome. Dr Walden concluded that she was unable to find sufficient evidence to nominate that Mrs Ching was suffering from a psychiatric disorder, and that she did not exhibit any behaviour indicative of exaggerating her pain symptomatology, while Drs Chase and Maxwell’s oral opinions were consistent with their later pre-hearing reports. The Tribunal’s finding was that Mrs Ching did not have a reasonable excuse for not undertaking her rehabilitation program.
121. Again in hindsight, I conclude that by September 2006 there was insufficient evidence to support a continuing physical condition in the upper limbs.The outstanding issue that remained was the question of chronic pain reported by Mrs Ching and for which no cause could be defined, with the psychiatric evidence, whilst supportive of Mrs Ching’s genuineness as regards her symptom of pain, could not identify sufficient material to identify a diagnosable psychiatric condition.
122. During the period after the second hearing, I draw the following conclusions from the material before me:
·During 2007 continuing disputation occurred in relation to the circumstances of the rehabilitation program and Mrs Ching’s ability to perform the nominated upgrades. By September 2007 Dr Napper was reporting that Mrs Ching was suffering from a work related chronic pain syndrome with secondary stress and anxiety. In September 2007 Dr Champion concluded that Mrs Ching’s complaints do not support any primary psychiatric diagnosis, and that her presentation was consistent with the presence of obsessional features on her personality style.
·In October 2007 and November 2007 Australia Post issued two determinations denying liability for a permanent impairment and ceasing payment for compensation for bilateral upper limb conditions respectively. In December 2007 Mrs Ching lodged a claim for pain, anxiety, panic etc. This claim was denied in January 2008.
·Disputation continued concerning her work activities with Mrs Ching and in November 2007 Mrs Ching took long service leave, followed by sick leave, with her employment being terminated in August 2008. A reinstatement case was unsuccessful.
·Further written reports and oral evidence by Dr Gotis-Graham confirmed that in his view Mrs Ching had developed a chronic pain syndrome, and that since August 2002 Mrs Ching had been demonstrating symptoms of anxiety and frustration. Dr Gotis-Graham also noted that Mrs Ching’s pain symptoms have fluctuated in intensity over time, and that his diagnosis of diffuse tendonitis was just for himself to remind him that there had been tendonitis in the past.
·Dr Beer in both his report of 31 March 2010 and in oral evidence expressed a view that Mrs Ching had suffered a degree of rotator cuff capsulitis of both shoulders, medial and lateral epicondylitis of both elbows and a mild degree of tenosynovitis of the right wrist. Dr Beer confirmed that such a diagnostic matrix was present in the past and had settled down but not completely.
·Dr McGill in his written reports of 29 September 2008 and 5 July 2010 and in oral evidence stated that Mrs Ching was anxious in all his examinations, but since his examination in May 2002, there had been no physical explanation for Mrs Ching’s continuing symptoms.
·Dr Maxwell in his report of 18 June 2010 and his oral evidence concluded that he was unable to adduce any clinical signs to support a diagnosis of tendonitis in the upper limbs since 2 February 2006, although he had noted that Mrs Ching was somewhat anxious during consultation and that she was telling the truth.
·Dr Drobny in her report of 8 July 2010 and confirmed in telephone evidence that Mrs Ching meets the DSM-IV criteria for the diagnosis of panic disorder with agoraphobia and a major depressive disorder. In making her assessment Dr Drobny had assumed that there was an ongoing physical disorder, that the panic attacks were ongoing as reported by Mrs Ching and in the absence of any organic basis for Mrs Ching’s pain this would alter her assessment and make her think more of a conversion disorder.
·Dr Napper in his reports of 11 October 2007, 6 November 2007 and 2 August 2010, noted Mrs Ching’s complaints of pain, that stressful interactions with Australia Post had made her feel anxious since 2001 and that such stress had led to panic attacks. Dr Napper also noted that Mrs Ching’s level of pain improved when Mrs Ching had days off work. Dr Napper diagnosed panic disorder with later, further conditions of agoraphobia and major depressive disorder. In oral evidence Dr Napper opined that organic pain tends to be fairly constant while psychological pain will come and go according to psychological factors. Dr Napper denied the existence of a conversion disorder diagnosis.
·Dr Morse having in his earlier report of 13 November 2008 assumed an ongoing physical cause for Mrs Ching’s pain in reaching his conclusion that he did not consider there are psychological or emotional factors playing a significant part in the causation of her physical symptoms. He also noted that despite a secondary psychological response to the pain, he did not consider a diagnosis of chronic pain disorder is supported. In a further report dated 15 February 2010, Dr Morse concluded that Mrs Ching was suffering from a pain disorder and an adjustment disorder with moderate depression as well as marked anxiety and a panic disorder. In his oral evidence Dr Morse explained the correction in his diagnosis was made when he realised Mrs Ching did not have an ongoing physical disorder and her preoccupation with pain.
·Dr Champion, in his report of 29 October 2008, concluded that Mrs Ching was not suffering from either hysteria or a psychosomatic condition, but rather from ongoing rage at what she considers unjust control of the manner in which she believes she should be allowed to work. Dr Champion’s final conclusion was that there is no diagnosable psychiatric disorder at present, a conclusion he continued to affirm in his report of 12 July 2010 and during telephone evidence. Further in oral comment Dr Champion stated that in relation to hysteria and malingering, the whole matter swings on conscious awareness of the act of complaining of something, that is whether it is a conscious motivated thought or an unconscious motivated thought, with adequate consideration of the background of the individual to further assist delineation.
123. In addressing the issues nominated in the previous paragraph I conclude on the material before me that there was no evidence to indicate that there was an ongoing organic (physical) condition in Mrs Ching’s upper limbs continuing beyond the date of the reviewable decision, namely 8 January 2008. In support of such a finding I rely upon the later opinions of Drs McGill, Maxwell, Gotis-Graham and Chase, and the absence of any significant findings in the MRI investigations of both arms and shoulders in August 2007. I would note that I have canvassed the earlier opinions by all specialists in relation to earlier hearings. In relation to Dr Beer, I find little comfort with his opinion, as it would appear that he was addressing conditions that may have been present in the past and in relation to his finding of a positive Finkelstein’s test, he admitted that an examination performed within months of his examination should have been able to reproduce a similar and consistent result, for his testing to be determinative.
124. In turning to the issue of the pain symptomatology, I am satisfied that on the evidence before me that Mrs Ching does suffer from a pain disorder associated with a general medical condition, as per the diagnostic criteria nominated in DSM-IV. In making such a finding I have given consideration to the following:
·No antecedent history of personality traits in Mrs Ching’s childhood, adolescent or early childhood.
·No history of mental or psychological disorders prior to employment with Australia Post.
·The existence of a physical injury to both shoulders in August 2001.
·The workplace disputation both prior to the injury and immediately post the injury until liability was accepted in December 2002. The disputation centred around rate and length of coding time prior to the injury and the adherence to restrictions imposed by medical practitioners after the injury.
·Complaints of left wrist and hand pain with no organic basis in August 2002 (Dr Gotis-Graham).
·Increasing disputation in the workplace concerning Mrs Ching’s restricted duty program, which she believed was being carried out in a manner contrary to medical restrictions imposed by her treating medical practitioners, coupled with a belief by Mrs Ching that Australia Post (supervisors) did not believe her complaints of pain.
·The appearance as early as 2002 of Mrs Ching having a pain focus, and a fixation that particular activities and actions by her supervisors were causative of or contributed to her complaint of pain.
·The continuance of the differing medical restrictions imposed and the type of tasks which she was deemed capable of undertaking in her rehabilitation programs by the two differing medical specialists – Dr Gotis-Graham and Dr Chase initially and continued as differing opinions were considered over time.
·The appearance of obsessional symptomatology by Mrs Ching in 2002 and continuing thereafter as evidenced by her focus on pain, her fixation on what activities she was able to undertake, her preoccupation with difficulties in the workplace and her over reliance on her treating practitioners. The issue of her obsessional symptomatology was first raised by Ms Barta and further considered by Dr Walden, Dr Napper and Dr Champion.
·The appraisal at examination by the early treating and many consulting specialists that Mrs Ching appeared anxious and was worried about pain and workplace issues. Such comments were further refined over time, when it would appear that anxiety symptoms were present when examined by Dr Napper, Dr Drobny and Dr Morse, while Dr Walden and Dr Champion considered there was insufficient material to conclude an anxiety diagnosis.
·The appraisal by many of the specialists seen over time that she gave a consistent history, albeit in a more coherent and less hostile manner to her attending practitioners as opposed to the Respondent’s clinicians. Nevertheless an examination of all the material before me relating to the three hearings records a consistency of story, apart from apparent variations concerning the onset of panic attacks between Dr Drobny and Dr Napper.
·The appraisal by all the clinicians involved that she was either telling the truth about her pain symptoms (Dr Maxwell, Dr McGill, Dr Chase, Dr Gotis-Graham), was genuine in her presentation of pain symptomatology (Dr Walden), was accepted as telling the truth (Dr Drobny, Dr Napper, Dr Morse) or was cooperative to start with and angry later in relating her history (Dr Champion).
·The appearance of documented uncooperative behaviour at examination by Respondent’s doctors suggestive of either trying to magnify her upper limb disabilities (Dr McGill, Dr Whittaker) or abnormal illness behaviour (Dr Maxwell, Dr Chase).
·Contentions made relying upon the opinion of Dr Napper that psychological pain varies in intensity depending on the status of the underlying psychological condition and the fact that over the last three years since Mrs Ching has left work, the pain complained of has not changed. An examination of the longitudinal history of the severity of the pain indicates that both Dr Gotis-Graham and Dr Napper noted a variation in intensity with various treatments and days off.
·In addressing the issue of secondary gain I observe that issues of monetary gain, self validation, household assistance from husband and children, seeking out and gaining medical attention when no longer deemed to be of benefit by the attending practitioner or continuing to seek attention when no improvement in the underlying condition were all put forward as examples of secondary gain. Indeed all such issues may be, but, in turn must be adjudged in context and be weighed against losses incurred in seeking such gains, if such gains were to be seen as arising from a conscious motivation. In Mrs Ching’s circumstances, these involved much conflict and disputation in the workplace, and adoption of a behaviour pattern which placed her in conflict with her employer, social isolation, loss of family support and loss of job, all such activities occurring over a ten year period. My analysis at best would indicate a zero sum gain and at most a significant loss, when one acknowledges the length of time and the personal consequences Mrs Ching has endured. I note that the Respondent’s physical doctors defined both presentation of history issues as well as less than cooperative behaviour in examination of the upper limbs. I do conclude that such behaviour by Mrs Ching was evidence of conscious behaviour by Mrs Ching, but in turn as noted by Dr Morse and Dr Walden, such behaviour is often motivated by people with complaints of pain, who perceive that others do not necessarily believe their complaint. In so finding I rely upon Mrs Ching’s admission that she experienced difficulties and was aware of experiencing such difficulties when confronting Australia Post’s doctors. In this matter there is a longitudinal history of actual disbelief by the employer to Mrs Ching’s complaints of pain and a perception long held by Mrs Ching of such a belief. I note that such disbelief was much in evidence when Australia Post denied liability to the initial claim.
·Further submissions were made as regards Mrs Ching’s ability to drive to visit consultants and go to work on a regular basis and her claimed disability arising after the onset of her panic attacks. This was advanced as an issue when she travelled to Hong Kong via Macau for a holiday in April 2008. I accept that there is some inconsistency between her statements as to restrictions arising from her panic attacks and what she actually did do as far as driving is concerned, albeit allowing for pulling over and stopping for a rest with longer drives. I find such inconsistency suggests an element of exaggeration which I consider evidence of conscious motivation to assist her in having her story believed. In relation to the trip to Hong Kong, I note she travelled with her husband and children and that her mother visited her in a Hong Kong hotel, having travelled from Kowloon. I note that she believed her symptoms of pain to have improved during the holiday. I draw no negative inference from the event.
·I note a submission made on behalf of the Respondent that Mrs Ching had no restrictions applicable following the second Tribunal decision and that she was able to undertake the full duties of a mail officer. This is not so, for the consequence of the second Tribunal decision was that Mrs Ching was found to be fit to undertake a graded rehabilitation program which was in place as a consequence of continuing liability existing pursuant to sections 16 and 19 and a section 37 determination, pursuant to the SRC Act. I note cessation of compensation payment for such occurred on 8 January 2008. During the period in question and up to 8 January 2008, I note that disputation continued concerning Mrs Ching’s ability to undertake various activities nominated in the various stages of her return to work program. I conclude that this submission does not advance the Respondent’s case.
·Contentions were raised that diagnoses were made and restrictions imposed by Mrs Ching’s treating doctors on her self reporting of symptoms and in the absence of workplace inspections to validate what activities Mrs Ching was able to undertake. I accept that this was so, but in fairness that was not of Mrs Ching’s doing as regards the visits and in respect of self reporting of symptoms and circumstances, this is a normal practice for a treating doctor.
·Finally I note the longitudinal history of the chronic pain (pain without objective signs) and I note its early evidence in the report of Dr Chase in February 2002. Further addressed at the time of Dr McGill’s examination in May 2002 and confirmed by Dr Gotis-Graham in August 2002, and in every report thereafter. I have already addressed variability in pain intensity, and despite Dr Napper’s opinion that psychological pain is constant and only ceases where physical pain has previously occurred, I find no evidence to support such an opinion in DSM-IV discussion on diagnostic criteria for pain disorder to which my attention was drawn.
·In addressing the issue of malingering, I am mindful of the emphasis placed on this diagnosis by the Respondent. I have already considered the issues of secondary gain and in the light of Dr Champion’s comment that there must be evidence of conscious motivated thought, assessed against the background of an individual’s life events, I consider that I have been invited to make such a finding without the necessary material to so make. Apart from examination exaggeration which I have found to be consciously motivated, but for reasons to do with having her pain symptoms believed and presentation to Respondent doctors which involved volubility, contradictory statements, anger, hostility and confusion there is overwhelming impression arising from all the doctors involved that she was a consistent but at times difficult historian and that she told the truth and was genuine about her complaints of pain. In the absence of further substantive material that directs me to consider an opposite view I am left with an outcome that the complaint of pain is genuine and not a conscious fabrication. I so find.
125. In relation to the other psychiatric diagnosis nominated by the psychiatrists in this matter, I note that Dr Walden in 2005 was unable to elicit sufficient material to support any psychiatric diagnosis. I note that Dr Napper has seen Mrs Ching at least a hundred times and has diagnosed panic disorder with agoraphobia and major depressive disorder, with her obsessional symptoms evolving as a reflection of her anxiety condition which has been present since 2001. Dr Napper has treated Mrs Ching’s psychiatric conditions with anti-anxiety and anti-depressant medication. Dr Drobny diagnoses a similar diagnostic matrix, while Dr Morse considered Mrs Ching to be suffering from an adjustment disorder with moderate depression and marked anxiety, as well as panic attacks. Dr Champion concludes that there is no diagnosable psychiatric condition at present.
126. In concluding the psychiatric diagnostic matrix, I am satisfied that Mrs Ching has been anxious since 2002, and that she has been treated for an anxiety disorder (panic attacks) since 2007 as well as a depressive disorder. In this matter while I note the opinion of Dr Champion (no diagnosable psychiatric condition), I accept the diagnostic matrix nominated by the treating psychiatrist Dr Napper and the treating psychologist, Dr Drobny. Dr Morse’s opinion reflects a similar but less intensive diagnostic matrix. In relying as I have on the treating clinicians I am aware of their extensive professional interaction with Mrs Ching and the treatments rendered. I have not considered Dr Walden’s opinion in 2006 correct as to present diagnosis and while respectful of Dr Champion’s opinion, I am mindful of his focus and views expressed concerning repetitive strain injury and his limited exposure to Mrs Ching’s complex clinical conditions.
127. This my finding and for the reasons expressed that Mrs Ching appropriate current diagnostic matrix is:
·Pain disorder
·Panic disorder with agoraphobia
·Major depressive disorder.
128. Further I am satisfied and so find that while there was clinical material as early as August 2002 pointing to the presence of Mrs Ching experiencing elements of non organic pain, Mrs Ching’s anxious disposition in association with her pain disorder has evolved with the full psychiatric diagnostic matrix being the end result of the current assessment. This assessment has permitted a comprehensive evaluation of a ten year clinical history and the appropriate clinical definition in response to the compensation claim of 5 December 2007.
129. I would further find that Mrs Ching’s psychiatric conditions are diseases that there are features of Mrs Ching’s employment which I have detailed that on the balance of probabilities did contribute to her psychiatric condition (Treloar v Australian Telecommunications Commission (1990) 26 FCR 316). To reiterate, the features of her employment were her accepted physical condition and the continued disputation over many years with her work supervisors over medically imposed work restrictions and continued disputation because of conflicting medical opinions over her ability to undertake work activities integral to a staged rehabilitation program. Further while I note that there was a change in the section 4(1) of the SRC Act that such a contribution must be a significant contribution as opposed to material as from 13 April 2007, little rests on the statutory change as Finn J in Comcare v Sahu-Khan (2007) 156 FCR 536 had already concluded that a material degree meant something akin to substantially or considerably. However nothing rests on the statutory change as in this matter I find that issues and circumstances surrounding her work satisfies me that work made a significant contribution to the psychiatric diseases, for reasons I have previously related.
130. In addressing the claim relating to permanent impairment of both upper limbs I have already concluded that Mrs Ching’s behaviour pattern at examination of the upper limbs by Drs McGill and Maxwell was less than whole hearted. I again note Dr Walden’s comment in her report of 2 May 2006:
If it is not thought to be deliberately feigned, though some conscious exaggeration is not unusual in people who are trying to convince others of their pain when they feel that they are not being believed.
I also note that Dr Gotis-Graham had not made an assessment under the appropriate guide, and when encouraged to do so felt that Mrs Ching did not perhaps satisfy the criteria for having difficulty with digital dexterity pursuant to Table 9.4 of the Guide. Similarly I note that Dr Beer undertook no actual physical examination as regards Mrs Ching’s digital dexterity and relied solely upon her account of what she could or could not do. While Dr Beer made an assessment of 10% for each upper limb, it appeared that this was more to do with shoulder assessment pursuant to Table 9.1 of the Guide. In conclusion I felt that Dr Beer’s assessment of permanent impairment was not of sufficient assistance upon which one could make a decision.
131. As a consequence of what I have outlined I have before me clinical opinions that recognise less than cooperative endeavour on behalf of the Applicant or alternatively inadequate or incomplete endeavours at assessment. In such circumstances I conclude that Mrs Ching has a nil percentage impairment pursuant to the appropriate Guide.
132. In addressing the issue of permanent impairment arising from the psychiatric condition I have considered the issues nominated in section 24(2) of the SRC Act and I consider that her psychiatric condition is permanent given the duration of the impairment, the likelihood of improvement and the rehabilitation activities attempted. I note the report of Dr Morse who nominates a 15% whole person impairment pursuant to Table 5 of the Guide. I accept the 15% impairment figure as clearly all these reports indicate that Mrs Ching is in need of some assistance in performing activities of daily living as well the presence of the nominated factors listed within that table.
133. Finally in terms of work capacity, I find, relying upon the psychiatric/psychological reports of Drs Morse, Napper and Drobny that Mrs Ching is totally incapacitated for work. In the circumstances of this matter the total incapacity for work existed at least from the time of Dr Morse’s opinion on 13 November 2008, if one accepts his opinion expressed in his report of 15 February 2010, where he states that Mrs Ching was seen in the same state as previously seen. In this regard the matter will be remitted to assess the incapacity payments post cessation on 8 January 2008.
Decision
134. I make the following decision in relation to each matter under review:
a)In matter No. 2008/0916 concerning section 16 and section 19 of the SRC Act, payments in respect of nominated physical conditions in both upper limbs, I affirm the reviewable decision of 8 January 2008.
b)In matter No. 2008/4691 concerning section 24 and 27 of the SRC Act, payments in respect of permanent impairment arising from bilateral upper limb and shoulder conditions, I affirm the reviewable decision of 6 August 2008.
c)In matter No. 2008/0920 concerning liability pursuant to section 14 of the SRC Act, in relation to a psychiatric condition claim, I set aside the reviewable decision of 8 January 2008 and in substitution thereof find that:
i.liability is accepted for the psychiatric conditions of pain disorder, panic attack with agoraphobia and major depressive disorder and
ii.the matter is to be remitted to the Respondent in relation to the calculation for section 16 and 19 payments and
iii.the Applicant is entitled to recover costs in the nominated matter in accordance with the Tribunal’s existing cost recovery instructions.
d)In matter 2010/3609 concerning the matter of section 24 and 27 of the SRC Act, payments in relation to a psychiatric claim, I set aside the reviewable decision of 13 August 2010 and in substitution thereof find that:
i.the Applicant is entitled to permanent impairment payment in respect of an accepted psychiatric condition, nominated in the previous matter, with the level of whole body impairment determined to be 15% and
ii.the matter to be remitted to the Respondent for calculation of the compensation payment and
iii.costs are awarded to the Applicant in relation to the nominated matter.
e)In matter No. 2008/0918 concerning incapacity payment pursuant to section 19 of the SRC Act for one day on 22 August 2007 in respect of either a physical or psychiatric cause I affirm the reviewable decision of 21 February 2008, as no particular material relevant to that particular day that would assist me in setting aside the decision.
I certify that the 134 preceding paragraphs are a true copy of the reasons for the decision herein of Dr J D Campbell, Member
Signed: ..............[sgd]..................................................................
AssociateDates of Hearing 25 – 28 October 2010, 28-31 March 2011, 21 April 2011
Date of Decision 30 May 2011
Counsel for the Applicant Mr L Grey
Solicitor for the Applicant Carroll & O’Dea Lawyers
Counsel for the Respondent Mr G Johnson SC
Solicitor for the Respondent Graham Jones Lawyers
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