Coathup and Comcare (Compensation)

[2015] AATA 988

Coathup and Comcare (Compensation) [2015] AATA 988 (18 December 2015)

Division

GENERAL DIVISION

File Numbers

2013/4229, 2013/5822, 2013/5821

2014/0010, 2014/3323, 2014/5562

Re

Richard Coathup

APPLICANT

And

Comcare

RESPONDENT

DECISION

Tribunal	Miss E A Shanahan, Member
Date	18 December 2015
Place	Melbourne

The Tribunal affirms all six decisions under review.

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

Miss E A Shanahan, Member

WORKER’S COMPENSATION – multiple claims for thrombosis of superficial leg veins and separate episodes of thrombophlebitis – acute stress – depressive disorder – ganglion/cyst or tumour of left thumb – chronic pain syndrome aggravation - prior acceptance of most conditions by Department of Veterans’ Affairs (DVA) – in receipt of DVA disability pension – current part-time employee of the Australian Federal Police – decisions under review affirmed

Legislation

Safety, Rehabilitation and Compensation Act 1988

REASONS FOR DECISION

Miss E A Shanahan, Member

18 December 2015

1. The applicant Mr Coathup has lodged six claims for compensation during 2013 and 2014.  These claims have all been reviewed and, with one exception, rejected.  The  application 2013/4229 relates to the denial of liability by Comcare, with a reviewable decision date of 27 June 2013,  for compensation  for ganglion and cyst of synovium, tendon and bursa (left) (cyst or tumour of left thumb), chronic pain syndrome and depressive disorder. 

2. Applications 2013/5821 and 2013/5822 relate to a reviewable decision of 11 September 2013 that accepted liability for an aggravation of embolism and thrombosis of other superficial veins (right) which occurred on 2 January 2013, but denied liability to pay compensation for an acute reaction to stress and chronic pain syndrome under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (the Act).

3. Application 2014/0010 relates to a reviewable decision of 19 November 2013 denying liability to pay compensation for phlebitis and thrombophlebitis of the lower extremities (right) and secondary acute reaction to stress. 

4. Application 2014/3323 is a request for a review of the reviewable decision of 7 April 2014 that determined compensation for a depressive disorder sustained on 12 January 2012 was not compensable under s 14 of the Act.

5. Application 2014/5562 sought review of the reviewable decision of 5 September 2014.  This decision had denied liability to pay compensation for medical treatment and incapacity under s 16 and s 19 of the Act, in relation to the claimed injury of 2 January 2013, that is in relation to the accepted condition of aggravation of embolism and thrombosis of other specified veins (right).

6. All procedural requirements with respect to the times of lodging and nature of the claims as outlined by the Act had been met.  Earlier applications and in particular  2010/1213, where Consent Orders had been lodged, and two of the three episodes of venous thrombosis which were accepted as being injuries simpliciter, had been resolved by the time of the hearing.

7. In the past Mr Coathup has claimed incapacity relating to the varicose veins in his right leg (1994), a chronic regional pain syndrome secondary to an elbow fracture (1999) and a depressive disorder (1999). These applications were made to the Department of Veterans’ Affairs (DVA) when he was still a serving naval officer.  As a result of these applications, he was assessed at having a disability at 100 per cent of the general rate and receives a pension from the DVA.

8. At the hearing Mr Coathup was self-represented. Mr Roy Seit of counsel instructed by Mr Nguyen of Sparke Helmore appeared for Comcare. The Tribunal was provided with the documentation pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (the T-documents) relating to the 2013 and 2014 applications.  These were assigned the Exhibit numbers R1 and R2 respectively.  Detailed reports were also received from Dr Peter Farnbach, (Exhibit R3) and Professor Hatem Salem (Exhibit R4).  While Mr Coathup provided a great deal of data in the way of submissions, he did not tender any separate documents.  Mr Coathup, Mr Mellor, Dr Farnbach and Professor Salem gave evidence before the Tribunal.

   BACKGROUND TO THE APPLICATION

9. Mr Coathup joined the Royal Australian Navy (the Navy) on 21 September 1982 when he was 17.  After his training he served as a chef on several submarines until 8 March 1991 when he experienced an episode of cellulitis following the removal of a mole from his right leg.  He subsequently developed thrombophlebitis and was evacuated to Perth from the submarine.  On 11 June 1991 the superficial saphenous veins in both lower limbs were stripped.  Mr Coathup is said to have had evidence of varicose veins since joining the Navy and has a positive family history, albeit on the female side.

10. Having returned to submarine duty, on 13 November 1993 Mr Coathup slipped in the galley and fractured his left elbow.  This was initially treated by immobilisation in plaster of Paris but he went on to develop a chronic pain syndrome diagnosed in June 1994. Subsequently in 1994 he underwent lateral release of the muscles of the left elbow and later resection of the head of the radius on that side.  From 1994 onwards he was restricted in his service in that he was not considered fit for duty at sea or only duty at sea if under medical supervision.

11. On 22 September 2002, after 20 years of service in the Navy, Mr Coathup transferred to the Australian Federal Police (AFP) as an administrative assistant which was essentially a sedentary position.  In October 2003 he noted a superficial venous thrombosis in his left leg and thereafter wore compression stockings.  In September 2008 he developed a superficial venous thrombosis extending from the left groin to the knee this occurring after a short interstate flight.  On the advice of two surgeons he underwent repeat stripping of both saphenous systems in the lower limbs in May 2009.

12. On 15 September 2009 Mr Coathup felt a clot in his right leg and was hospitalised for a period of four days.  Comcare accepted liability when the injury was deemed to be an injury simpliciter.  This had resolved by 23 April 2010.

13. On 20 April 2010 Mr Coathup’s level of incapacity was re-examined by DVA and increased to 100 per cent of the general rate. He was provided with a Gold Card for the treatment of thrombi, chronic pain syndrome and his psychiatric disorder.

14. On 8 November 2010 Mr Coathup developed low abdominal pain and haematuria.  He attended the Emergency Department of a hospital and underwent investigation and was told that he had probable gallstones.  The hospital notes suggest the presence of renal or ureteric calculi, not gall-stones.  This lower abdominal pain persisted.  All x-rays such as CT scanning were normal.  He underwent a laparoscopy on 20 June 2011 and no abnormality was found.  His appendix was removed.  In the post-operative phase he developed a further superficial clot in his lower limb. 

15. As a result of his repeated episodes of thrombophlebitis and superficial vein thrombosis, Mr Coathup has developed an intense fear of further clots developing and that these could embolise to his brain resulting in a cerebrovascular accident or to his coronary arteries leading to a myocardial infarct. 

16. From early in his employment with the AFP, Mr Coathup had lodged complaints regarding the ergonomic appropriateness of his workstation.  He believed the desk and chair did not allow for sufficient movement and activity, which his recurrent superficial lower limb thromboses required in order to minimise venous stasis and the risk of clotting. 

17. From 2008 onwards Mr Coathup’s hours of employment were limited and similar to those he was undertaking in his last years in the Navy.  He worked four days a week, six hours each day and had Wednesdays off.  The day off had been termed recreation leave.  He currently works six hours a day, five days a week with 10 minute breaks every hour during which he gets up and walks around the office. 

18. In March 2011 Detective-Sergeant (DS) Marko Dokmanovic commenced duty as the new co-ordinator at Mr Coathup’s place of work in La Trobe Street, Melbourne.  In 2012 Mr Coathup’s team leader was replaced by Mr Greg Mellor. 

19. Mr Mellor requested that Mr Coathup provide further information regarding his medical conditions as they had little knowledge of his work restrictions and his reasons for such restrictions.  It would appear that this information was not forthcoming and on 21 September 2012 Mr Coathup met with Mr Mellor and DS Dokmanovic to discuss his health and whether any further rehabilitation was required.  A request was made for him to provide more medical information and he was asked to sign a certificate of release of such information.  Mr Coathup was advised that his day off, that is Wednesdays, should not be listed against recreational leave but personal leave.  Mr Coathup eventually signed the medical information release.  He claims that DS Dokmanovic, Mr Mellor and Mr Mellor’s wife, who also works in the AFP, had access to all his personal medical reports.

20. The day after this meeting Mr Coathup developed a marble sized lump in his right thumb.  He described this lump as having been caused by either stress or overuse of his computer mouse.  On 25 September 2012 he lodged a complaint to the AFP Association alleging he had been bullied and harassed by his superior Marko Dokmanovic.  His complaint was referred to Mr Todd Dyson of Occupational Health and Safety and, in turn, he was referred to a rehabilitation company known as Carfi. 

21. Mr Coathup was employed as an intelligence analyser and was not a sworn AFP officer.  His position required him to analyse information collected and report to his superiors as to the credibility and importance of the data and his analysis.  DS Dokmanovic was anxious to improve the standards of performance of all members of the office and according to Mr Coathup set unrealistic work targets.  Mr Coathup also believed that DS Dokmanovic had double standards in terms of office attire.  Mr Coathup had been reprimanded for wearing a hoody over his suit, which he did because the office was cold.  According to Mr Coathup, other workers who appeared in T-shirts and jeans and casual clothes were not reprimanded.  Mr Coathup was also critical of DS Dokmanovic’s treatment of him in that on occasions he would totally ignore his presence and on other occasions might greet him on arrival in the morning.  All approaches by staff to DS Dokmanovic were to be made through the team leader Mr Mellor, who would then decide whether or not the matter should go forward to DS Dokmanovic. 

22. On 2 January 2013 at work Mr Coathup noted a lump in his right leg which he says was shown to be 10 centimetre thrombus.  He continued to work but on 4 January 2013 noted the clot had enlarged in size.  He attributed this change in size to an aggravation of his thrombosis/thrombophlebitis by his work conditions. 

23. According to Mr Coathup, several other officers had similar experiences to his own and were bullied and harassed and left the Melbourne office of the AFP.  A further right lower limb superficial thrombophlebitis was diagnosed in June 2013. On 3 July 2013 Mr Coathup lodged a claim for compensation in relation to psychological conditions described as mental ill-health resulting from constant bullying and harassment regarding his medical conditions within the workplace.

24. In July of 2013 Mr Coathup underwent surgical exploration of what was initially termed a giant cell tumour of a tendon at the base of his left thumb (metacarpo-phalangeal joint level). But it turned out to be an organising thrombus which might have been a haemangioma.   On 5 September 2013 a small nodule was noted in Mr Coathup’s right palm and this was thought to be a thrombosed segment of a vein.

25. There had also been a dispute regarding Mr Coathup’s involvement in the training and walking of Customs and Border Protection (Customs) dogs.  According to Mr Coathup, DS Dokmanovic had placed restrictions on him and his family walking the Customs puppy.  These restrictions appeared to relate to walking the puppy while it was wearing identifiable logos of Customs and walking the animal in particular areas.  Mr Coathup believed these restrictions were totally unreasonable.

26. In his written submission of 21 April 2015, Mr Coathup included entries from the diary he kept on a daily basis from 2013 until at least the end of 2014.  While this has been heavily redacted, it does contain observations of who was wearing what attire on that particular day and whether or not he was greeted by DS Dokmanovic when he arrived at work.  There are entries such as; co-ordinator Marko Dokmanovic ignores me but greets two female employees who have just arrived.  It would appear that DS Dokmanovic left the Melbourne office in the first quarter of 2015, having been appointed to overseas intelligence duties. 

27. Mr Coathup claims to have suffered a deep vein thrombosis on 23 March 2015.  This he has attributed to sedentary work conditions despite wearing compression stockings and being anti-coagulated.  In February 2015 Mr Coathup was certified fit to work six hours per day, five days per week with 10 minute breaks every hour.

28. There is a large quantity of documentation from the employer, the treating general practitioners and expert medical witnesses.  It is clear there is overlap, in terms of his Navy service and that in the AFP, between the mental health disorders diagnosed, the duration of the chronic pain syndrome and ongoing thrombophlebitic episodes involving the superficial venous drainage of the lower limbs.  At the commencement of the hearing, Mr Coathup made an opening statement lasting five hours and addressed every contention of the respondent’s 16-page Statement of Issues, Facts and Contentions. 

    EVIDENCE BEFORE THE TRIBUNAL

    Mr Coathup

29. Mr Coathup confirmed his naval service but would not answer the question whether he had any active service, stating that he was a special officer and that employment on submarines was restricted information.  The details of his thrombophlebitis in 1991 and subsequent stripping of his varicose veins and the details of the fracture of his right elbow on 13 November 1992 were said to be correct.  He also confirmed that he commenced work for the AFP as an unsworn intelligence analyser on 8 October 2002. 

30. Despite having a superficial thrombosis in his right leg in October 2003 no claim for compensation was made at that time.  He did however lodge a claim for the 2003 thrombosis on 11 October 2012.  He explained this delay in lodgement as being due to his belief that the claim would help his current application, although the matter in 2003 had completely resolved.  He said he was now claiming two episodes of thrombosis in his right leg and one in each of his left thumb and his right palm.  Mr Coathup agreed that an episode of superficial thrombophlebitis in his left leg on 2 September 2008 and a further episode on 12 March 2009 had been the subject of an application to the Administrative Appeals Tribunal and had been resolved by Consent Orders. 

31. On direct questioning, Mr Coathup agreed that the condition in his right palm and left thumb had completely resolved.  He reiterated his opinion that his memory had deteriorated since 2011 and differentiated between the psychological problems that accompanied his chronic pain syndrome and his development of depressive symptoms.  He agreed that in 2002 he had been compensated for permanent impairment for his elbow and his psychiatric condition.  It was brought to his attention that the psychiatrist Dr Cole had diagnosed reactive depression and anxiety in 1998.  Mr Seit pointed out that the psychologist Ms Thomlinson had assessed Mr Coathup over a period of 12 months in 2012 and reported no change in his psychiatric status.  Mr Coathup totally disagreed with this conclusion. 

32. Mr Coathup denied that the meeting of 21 September 2012 had been arranged to establish his health status and to provide him with assistance. Mr Coathup informed the Tribunal that not only did he spend 10 minutes every working hour walking and exercising but in November 2012 he was provided with a hinged footrest that enables him to move his feet and lower limbs up and down continuously.  . 

33. On questioning from the Tribunal, Mr Coathup said he saw a psychiatrist every four months, continued to take anti-depressants, pain killers, Vitamin D, Stilnox and Warfarin.  He believed his workplace stress had increased the severity of his chronic pain syndrome; although in the past eight months there had been no bullying or harassment and his stressors were now his lack of comprehension and inability to recall data. 

    Mr Greg Mellor

34. Mr Mellor is an active member of the AFP and currently works in the Melbourne office.  He had provided a written statement (T31 of File 2013/4229).  Mr Mellor knew Mr Coathup between 2002 and 2009 in the General Intelligence area.  In 2009 Mr Mellor had transferred to the Crime area and then obtained an intelligence analyst position at the Australian Taxation Office (ATO) as part of the team known as the Wickenby Investigation.  In late 2011 he returned to the Melbourne office as a team leader, Mr Coathup being a member of his team. 

35. Mr Mellor gave evidence that he had sought more medical details of Mr Coathup’s health on 30 March 2012 in an effort to see if it was possible to make new arrangements regarding the hours worked and whether any further rehabilitation would be of assistance.  When this information was not forthcoming, he and DS Dokmanovic met with Mr Coathup on 21 September 2012 to discuss his health condition.  Mr Coathup was given a medical authority release form and asked to complete it.  Mr Coathup was informed that if the police officer does not sign the release form, the process ceases.  The discussion also covered Mr Coathup’s use of recreation leave on Wednesdays, when it should have been personal leave.  Mr Mellor described the meeting as amicable and devoid of any signs of distress, anger or stress on Mr Coathup’s part.  Mr Coathup subsequently gave him the signed medical information release authority.  This Mr Mellor gave to his co-ordinator DS Dokmanovic, and it is then normal practice for it to be forwarded to the medical section of the AFP in Canberra.

36. Subsequently, Mr Todd Dyson became involved in Mr Coathup’s employment and work restrictions and a referral was also made to a rehabilitation company known as Carfi, Mr Mellor said the rehabilitation process determined by the medical staff would be under the supervision by Mr Dyson and Carfi. 

37. Mr Mellor was questioned as to dress standards in the office and advised that Friday was the casual dress day and during the remainder of the week attire was to be appropriate for the role the individual officer was to undertake.  As Mr Mellor was an operational sworn member and was involved in field-work he would frequently dress casually on those days he was doing such work. 

38. Mr Mellor considered Mr Coathup to be an efficient worker in the ICE (Intelligence Collection Evaluation) function and did not observe Mr Coathup experiencing any memory lapses.  It had been fully accepted by Mr Mellor and DS Dokmanovic that because of his recurrent thrombophlebitis and thrombosis it was unwise for Mr Coathup to fly or drive long distances. 

39. Mr Mellor was also asked to address the question of walking Custom puppies and why it had raised concern.  He advised that personnel who wish to undertake secondary forms of employment while members’ of the APF have to seek approval.  Mr Coathup was known to walk the Customs dog in a particular Sunday market place where suspected illegal trading took place.  A photograph had been taken with the Coathup puppy standing in front of a motorbike with the registration number of the bike being revealed.  The motorbike was identified as belonging to a member of an outlawed bikies’ group.  This was regarded as a potentially volatile situation and Mr Coathup was cautioned about such activity. 

1. The Melbourne office contained 38 people, four or five of whom were sworn members who would be active in field work and thus wear casual dress to work on occasions.  Mr Mellor had ceased his position as team leader at the end of December 2012 when he became an analyst in the counter-terrorism area. 

2. In cross-examination by Mr Coathup, Mr Mellor advised that he had no idea how many, if any, people in their section of the AFP would suffer from stress despite being the first person to be approached with any problems.  Mr Mellor said he was unaware of the level of morale in the office; although when he had returned to the Melbourne office he had found morale to be low.  In addition, there was a lack of quality assurance, the output of the office was poor and DS Dokmanovic had been anxious to improve the level of all functions, in particular the writing of reports with attention to the detail of spelling and grammar. 

3. Mr Mellor was unaware of DS Dokmanovic’s leave policy, other than that he had a view that recreation leave should be used rather than hoarded.  Staff were encouraged to have less than 30 days of recreation leave outstanding.  He did agree that DS Dokmanovic had discouraged staff from making information reports as he had concerns as to how these had been acquired, for example, by attending country markets where criminal activities were occurring, such as the sale of cigarettes and drugs.  Mr Mellor advised that he was currently working four days per week in his counter-terrorism role.  While there were no specific threats to the AFP, the number of armed personnel outside their offices had been increased. 

4. Mr Mellor was asked if he had discussed Mr Coathup’s health status in the office or with his wife, who is also an AFP officer.  He denied having done so. He agreed with his written statement that Mr Coathup was grumpy and difficult to work with, by which he meant that he was neither a positive nor a particularly happy individual.

5. I asked Mr Mellor had the office standards improved under DS Dokmanovic.  He indicated that there had been a significant improvement in terms of the standard of affidavits with improved writing and grammar and the requirement to footnote all documents.  He agreed that the staff had to work considerably harder under DS Dokmanovic than previous co-ordinators.

6. While Mr Coathup had been of the opinion that many of the sworn members had left the intelligence section of the Melbourne office while DS Dokmanovic was the co-ordinator, Mr Mellor was able to identify where these individuals had gone, there being only one current vacancy awaiting a higher decision;

   ·one sworn member had retired;

   ·one had gone to the Philippines with her partner;

   ·one had been promoted;

   ·one had taken leave to pursue tertiary studies; and

   ·the fifth moved to Washington, USA with her husband.

   In Mr Mellor’s opinion staff movement in Melbourne was not high and it was the norm for sworn members to rotate frequently as the need arose. 

   Dr Peter Farnbach

7. Dr Farnbach is a psychiatrist of 22 years’ experience who provided a report dated 24 February 2014 (Exhibit R3).  Dr Farnbach had made a diagnosis of an Adjustment Disorder with anxious and depressed mood, the stressor causing the adjustment disorder being chronic pain and recurrent superficial venous thrombosis.  Based on the documentation Dr Farnbach was provided with this condition (which was now chronic) dated from Mr Coathup’s time in the Navy, becoming evident in 1995. 

8. Dr Farnbach was asked what role bullying in the workplace had played in the development or aggravation of Mr Coathup’s adjustment disorder.  He believed bullying had the potential to exacerbate the condition but the primary problem had been the chronic pain syndrome and the recurrent thromboses.   The psychologist had assessed the level of his depression and anxiety prior to and again after the alleged harassment and found no change.  In addition, all memory testing performed in 2013 had failed to reveal an organic cause of memory loss.  Unfortunately, testing to see if the memory loss was feigned was not performed. 

9. Dr Farnbach was of the opinion that it was more likely than not that Mr Coathup’s psychiatric disorder would stay exactly same with or without anti-depressant medication; and that the existence of the underlying chronic pain syndrome made effective treatment difficult, particularly as Mr Coathup’s way of thinking of his health problems was set. 

10. In cross-examination of Dr Farnbach, Mr Coathup asked if it was possible that he had post traumatic stress disorder (PTSD).  Dr Farnbach said although he had some of the symptoms or features of PTSD he did not satisfy the criteria for such a diagnosis.  In response to my questions, Dr Farnbach suggested that treatment with Clonidine, which had been shown to be useful in chronic pain syndrome and an adjustment disorder with depressed mood, should be trialled. 

    Professor Hatem Salem

11. Professor Salem has provided several reports at the request of the Respondent, the first of these was dated 2 September 2010 (T40, File No 2013/5821) and the most recent of which was dated 3 April 2015 (Exhibit R4).  The reports have all been to the same effect and have outlined the anatomy, pathophysiology and natural history of varicose veins, superficial thrombophlebitis and deep vein thrombosis.  From his early reports Professor Salem had attributed Mr Coathup’s varicose veins to a genetic predilection as they were evident at the age of 17.  He confirmed this opinion in his evidence before the Tribunal. 

12. Professor Salem also outlined the three physiological factors that when abnormal may cause venous thrombosis.  These are the status of the wall of the vein, the rate of flow of blood in the vein and the individual’s clotting mechanism or profile.  He explained that the mechanism that is commonly seen was damage to the wall of the vein leading to local clotting and an inflammatory reaction termed phlebitis; or in the alternative, trauma to the vessel causing inflammation and phlebitis and then clot formation. In Mr Coathup’s case, Professor Salem believes the major factor was damage to the vein wall, due to the varicosity of these vessels.  In relation to the finding of a clot in the subcutaneous tissue of Mr Coathup’s thumb, and whether this could have resulted from the use of a computer mouse, Professor Salem dismissed that hypothesis saying it had never been reported.  Similarly, there is no medical evidence that stress is related to thrombosis.

13. Professor Salem explained that data and research on the effect of prolonged immobility was mostly from studies of post-operative patients who were immobilised.  It had been noted and reported that medical, that is non-surgical, patients confined to bed for a long period of time have a low incidence of venous thrombosis.  It was Professor Salem’s opinion that there was no contribution whatsoever from Mr Coathup’s employment in the AFP to the development of his superficial venous thrombophlebitis and thrombosis.  In Professor Salem’s experience, the process of phlebitis and thrombosis was ongoing, taking several days to develop.  Similarly, the resolution of any phlebitis and thrombosis in a superficial vessel would take two to six weeks normally and 72 hours at a minimum.  Doppler investigations have shown that the results of thrombophlebitis and clotting could in fact never resolve.  In order to prevent repeated attacks, Professor Salem said he would anti-coagulate a patient such as Mr Coathup early in his presentation to stop the recurrence of these episodes. 

14. Mr Coathup cross-examined Professor Salem, who confirmed previous evidence he had given that standing for long hours, as Mr Coathup had done when a chef in the Navy, would make his varicose veins more severe.  Professor Salem confirmed that Mr Coathup’s anxiety regarding the development of further clots was unfounded, that there was no contribution in his case to the development of clots from sitting at a desk most of the day and that the only effective treatment in his case was the use of anti-coagulants and compression stockings.  He confirmed that stress has no effect on the control of anti-coagulants and the testing that is done, but agreed that dehydration will increase risk of thrombosis.

15. I asked Professor Salem to explain the possibilities of arterial embolism from a DVT. Professor Salem said the risk was zero.

    DOCUMENTARY EVIDENCE BEFORE THE TRIBUNAL

16. There is a large amount of documentary evidence produced over a period of 25 years.  It is well documented that Mr Coathup suffered cellulitis in his right leg in 1991 and this resulted in superficial vein phlebitis and later that year he underwent stripping of his varicose veins in both lower limbs.  His fracture of the elbow and the consequence of surgical treatment had resulted in a well-documented chronic pain syndrome, the latter being diagnosed in June 1993.  All of these conditions have been accepted by the DVA as being service related and the DVA has met the cost of initial treatment and continuing treatment.

17. After Mr Coathup joined the AFP in October 2002, in a sedentary occupation which he believes was contributory, he has suffered several episodes of superficial venous thrombosis culminating in further stripping of his superficial saphenous venous draining system in May 2009.  He has continued to have episodes of superficial thrombophlebitis but there is no evidence that he has ever developed a deep vein thrombosis. 

18. The T-documents contain reports from his treating surgeon from 2009, Mr Michael Bruce, who has repeatedly confirmed that there is no evidence of deep vein thrombosis.  Similarly, his current general practitioner Dr Jakubowicz (T132 of File No 2013/5821) has, in a report dated 2 September 2013, stated that there is no evidence that he can find of Mr Coathup ever having had a deep vein thrombosis. Dr Jakubowicz also made the comment that many of Mr Coathup’s problems seem to have no organic basis.

19. The only reference to the possibility of deep vein thrombosis was made by Associate Professor Narayan in a report to Comcare of 24 January 2013.  In this report Associate Professor Narayan refers to his first consultation with Mr Coathup on 15 September 2009, while he was a patient in Knox Private Hospital.  According to Professor Narayan, Mr Coathup had been found on ultrasound to have thrombus within one of a pair of femoral veins in the thigh.  The thrombus was said to extend for about 20 centimetres, from 5 centimetres above the knee to 17 centimetres below the groin.  Treatment by anti-coagulation with Warfarin had been administered and the symptoms settled.  The Warfarin was ceased six weeks after the event.

20. The Tribunal have been provided with the radiologist’s report of this ultrasound.  It states that there was a clot in a thigh pared vein.  The term pared in this setting relates to a segment of vein that had been detached, or cut from the saphenous system, when the superficial system was stripped.  It would be expected that there would be several disconnected branches of the superficial system throughout both of Mr Coathup’s lower limbs.  These do not always communicate with the deep venous system; nor do they communicate obviously with the superficial system but they may well still communicate with smaller venules and hence contain blood which might clot.  Associate Professor Narayan seems to have mistaken the term pared as meaning paired.  The deep venous system consists at certain levels of paired veins on either side of the artery. 

21. Associate Professor Narayan saw Mr Coathup again on 5 September 2013 in relation to the development of a small superficial venous thrombosis in his right palm which resulted in a pea sized area of tenderness.  Associate Professor Narayan was of the opinion that Mr Coathup was consumed by his chronic pain syndrome and extremely apprehensive of having further superficial venous thrombosis.  He recommended a second opinion be obtained as he had no ready explanation for Mr Coathup’s presentation with recurrent thrombophlebitis over several years.

    Chronic Pain Syndrome and Psychiatric Status

22. Mr Coathup was diagnosed with a chronic pain syndrome in 1994 and has had ongoing treatment since.  He sees Dr Tim McCarthy, a pain specialist.  In 2012 Dr McCarthy had trialled various treatments including a magnesium infusion, ketamine infusion and right lumbar sympathetic ganglion block.  None of these modes of treatment were effective, the sympathetic ganglion block lasting only some three hours, which would have been due to the local anaesthetic also injected. 

23. Dr McCarthy was of the opinion that:

    Mr Coathup suffered from a longstanding pain syndrome which has elements of chronic pain, complex regional pain, neurogenic inflammation and vascular abnormalities, depression, anxiety and cognitive changes, all of which can be explained by the phenomenon of central nerves system microglial activation which began for him in 1992. (T106, p501 File No 2013/5821)

24. Mr Coathup has been seen by Ms Tomlinson, a psychologist, since early 2012.  Using Beck anxiety and depression testing, she determined that he had an extremely high level of anxiety and an extremely severe level of depression.  Psychological counselling was commenced as part of DVA arrangements.  Because of his complaints of poor memory a Wechsler Memory Scale Report was provided (T11, File No 2013/4229).  This testing confirmed he had low average memory performance particularly affecting his immediate memory for auditory information, although his memory of visually presented information was better.  Comment was made that he appeared ambivalent and hopeless about undertaking the test and its results.

25. Ms Tomlinson reassessed Mr Coathup’s anxiety and depression levels on 21 November 2012 and found these had not changed in any significant manner in 11 months.  She confirmed that Mr Coathup had an adjustment disorder with mixed anxiety and depressed mood as a result of his long standing chronic pain syndrome.  The unchanged Beck Depression Inventory’s and anxiety scores were repeated after the onset of his claimed stress response arising from bullying and harassment.  (T27, File No 2013/4229)

26. Mr Coathup has been attending Dr Anupam Pokharel since April 2012 (T28, File No 2013/4229).  Dr Pokharel confirmed the presence of a chronic pain syndrome and in his opinion Mr Coathup had chronic depression, secondary to the chronic pain syndrome and additionally cognitive difficulties that required assessment.  Dr Pokharel was of the opinion that the main cause of any psychological condition was the chronic pain syndrome and any other stress or incidents would be a minor contributing factor.  It was noted that antidepressant medication had been of no real benefit, as Mr Coathup had developed side effects that precluded him from taking therapeutic doses. 

27. Dr Pokharel had referred Mr Coathup to the neuro-behavioural clinic at the Austin Hospital for further investigation but no reports have been received from that clinic.

28. Dr Farnbach’s evidence has been considered above under the section headed Evidence before the Tribunal.  There is a consensus of opinion among psychiatrists and psychologists and the pain physician Dr McCarthy. They all agree that Mr Coathup’s major problem is that of a chronic pain syndrome with secondary depression and/or an adjustment disorder related to the chronic pain syndrome; and that his condition is further contributed to by his unfounded fear and anxiety relating to thromboembolism from superficial thrombophlebitis. 

    The claim relating to bullying and harassment in the workplace

29. This claim has been considered by some of the psychiatrists reporting in relation to Mr Coathup’s underlying chronic pain syndrome and adjustment disorder and all of them have considered it to be a minor factor.

30. There is a great deal of documentary evidence provided by Mr Coathup, much of it in the form of daily diary entries noting the following: whether his co-ordinator DS Dokmanovic spoke with him or greeted him on arrival, the provision of ergonomic furniture, his co-workers’ standard of dress and his own standards of dress and what an appropriate standard was.

31. Mr Coathup claimed that he was bullied into signing a medical release authorisation and that having done so, his co-ordinator DS Dokmanovic and his team leader Mr Mellor had accessed his medical records and that Mr Mellor had shared the information with his wife.  Mr Coathup had always provided certificates of ill-health when he was absent from work and he did not believe his doctor’s certificate should be challenged.  The Tribunal does note that the vast majority of the medical certificates provided, leaving aside those provided for WorkCover purposes, did not provide a diagnosis, stating he was unable to work because of a medical condition.

32. Detective Superintendent Dokmanovic provided two statements. The first was in relation to Mr Coathup’s claim of a superficial thrombosis in the left calf on 10 October 2003, and was provided on 8 January 2013, that is after Mr Coathup lodged his claim (T87, p321 File No 2013/5822).  DS Dokmanovic provided a more expansive statement on 6 September 2013 (T142, File No 2013/5821-5822) in which he, having become aware of Mr Coathup’s health issues in April 2012, requested documentation outlining his medical status in order to have a better understanding of the issues and the assistance that might be given in the form of rehabilitation.

33. The medical release that Mr Coathup signed on 21 September 2012 was to allow the AFP to seek further data from his medical practitioners.  DS Dokmanovic had deputised the team leader Mr Mellor to provide him with what he described as a timeline of medical issues, historic and current.  DS Dokmanovic had also approved Mr Mellor’s action in seeking more accurate information than that provided by the medical certificates presented by Mr Coathup.

34. Detective Superintendent Dokmanovic denied harassing Mr Coathup directly or indirectly in regard to what is termed fit for purpose activities.  Mr Coathup had not undertaken or applied to undertake the required law enforcement intelligence program training conducted in Canberra twice a year.  Mr Coathup had stated he was unable to fly or sit for long hours in a classroom because of his venous condition.  DS Dokmanovic had accepted this.

35. DS Dokmanovic considered the meeting on 21 September 2012 had been amicable, with Mr Coathup being engaged, obliging and helpful. Mr Coathup had not raised any issues regarding signing the authority to release medical information.  At the meeting DS Dokmanovic and Mr Mellor had discussed and negotiated a variation in Mr Coathup’s work-hours to align them with those of the team.  This meant commencing work at 0700 hours as opposed to 0600 hours, and that his practice of taking Wednesday’s off as recreational leave was inappropriate and should be taken as medical/personal leave.  DS Dokmanovic denied he had flicked a piece of paper at Mr Coathup or that he had advised him it was in his best interest to sign the release.  The meeting had been attended by DS Dokmanovic, Mr Coathup, Mr Mellor and the Occupational, Health and Safety Officer, Mr Todd Dyson. 

36. DS Dokmanovic had not observed or had reported to him any problems with Mr Coathup’s work performance, particularly in regard to poor memory, confusion and poor concentration.  In addition, the Performance Development Agreement reports by Mr Coathup’s team leader were always satisfactory. 

37. Mr Coathup had submitted two complaints regarding DS Dokmanovic and these were investigated internally and resolved. The official investigation by the AFP concluded with the findings of not established. 

38. Mr Mellor and Mr Dyson have also provided statements, essentially to the same effect (T87, dated 8 January 2013 File No 2013/5821-5822). 

39. Mr Coathup clearly perceived that he was bullied and harassed during the tenure of DS Dokmanovic as the co-ordinator of intelligence of the AFP in the Melbourne office.  It has been Mr Coathup’s evidence that following DS Dokmanovic’s posting overseas his claimed harassment and bullying has been resolved.

    RELEVANT LEGISLATION

1. The relevant legislation is contained in the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) which provides a definition of an injury and an ailment as follows:

   5A  Definition of injury

   (1)In this Act:

   injury means:

   (a)a disease suffered by an employee; or

   (b)an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or

   (c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;

   but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.

   (2)For the purposes of subsection (1) and without limiting that subsection, reasonable administrative action is taken to include the following:

   (a)a reasonable appraisal of the employee’s performance;

   (b)a reasonable counselling action (whether formal or informal) taken in respect of the employee’s employment;

   (c)a reasonable suspension action in respect of the employee’s employment;

   (d)a reasonable disciplinary action (whether formal or informal) taken in respect of the employee’s employment;

   (e)anything reasonable done in connection with an action mentioned in paragraph (a), (b), (c) or (d);

   (f)anything reasonable done in connection with the employee’s failure to obtain a promotion, reclassification, transfer or benefit, or to retain a benefit, in connection with his or her employment.

   5BDefinition of disease

   (1)In this Act:

   disease means:

   (a)an ailment suffered by an employee; or

   (b)an aggravation of such an ailment;

   that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.

   (2)In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:

   (a)the duration of the employment;

   (b)the nature of, and particular tasks involved in, the employment;

   (c)any predisposition of the employee to the ailment or aggravation;

   (d)any activities of the employee not related to the employment;

   (e)any other matters affecting the employee’s health.

   This subsection does not limit the matters that may be taken into account.

   (2)In this Act:

   significant degree means a degree that is substantially more than material.

2. The SRC Act also provides for the acceptance of liability under certain conditions in s 14 and states:

   14  Compensation for injuries

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

   (2)Compensation is not payable in respect of an injury that is intentionally self‑inflicted.

   (3)Compensation is not payable in respect of an injury that is caused by the serious and wilful misconduct of the employee but is not intentionally self‑inflicted, unless the injury results in death, or serious and permanent impairment.

3. When liability is accepted s 16 provides for the provision of medical treatment and states:

   16  Compensation in respect of medical expenses etc.

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

   Note:  Compensation is not payable under this subsection in relation to certain defence‑related claims (see Division 2A of Part XI).

   SUBMISSIONS

4. In his final submission Mr Coathup outlined his work history from 1981 in detail and his medical history from 1991.  He addressed each of his claims and reinforced his most recent claim of bullying and harassment at the hands of DS Dokmanovic.  He believes that the actions of DS Dokmanovic and Mr Mellor aggravated his psychological condition in particular but also his superficial thrombophlebitis and his chronic pain syndrome with his mental health disorder being aggravated substantially.  Mr Coathup sought repayment of DVA’s outgoings in relation to his treatment by Comcare, that his leave be credited to him and that he be compensated for any out-of-pocket expenses. 

5. Mr Seit outlined each of the six applications before the Tribunal, of which the claim for thrombosis on the right leg sustained on 2 January 2013 (File No 2013/5822) was identified as being the claim described in the sixth application (File No 2014/5562).  Earlier claims lodged in 2010 (File No 2010/1213) had been resolved by consent on the basis that they were injury simpliciti having been accepted as acute pathological changes occurring at work. 

6. Mr Coathup had made numerous claims to DVA and these have been accepted, in 1994 for his varicose veins of the right leg and in 1999 for his chronic regional pain syndrome and a depressive disorder.  As previously noted, Mr Coathup is receiving a Veteran’s disability support pension at 100 per cent of the general rate and has a Gold Card for medical treatment. 

7. In application File No 2014/5562 it was submitted that there was no s 14 liability as Mr Coathup had completely recovered from the acute effects and had no long term incapacity or requirement for medical treatment.

8. In relation to the claim for compensation for the left thumb condition, which occurred in September 2012, Mr Coathup had originally attributed this to workplace stress but more recently has causally connected it to working with a computer mouse.  Mr Seit argued that the decision should be affirmed as both stress and the use of a mouse had been ruled out by Professor Salem and also by the Dr Farnbach on the evidence before the Tribunal. 

9. Similarly, Mr Seit argued that the claimed causal relationship between the superficial vein thrombosis (of the right leg on 2 January 2013 and the left leg on 25 June 2013) and sedentary type work and being seated at a desk had been rejected by the expert witnesses.

10. Mr Seit submitted that Mr Coathup had a perception of bullying that was not substantiated by the evidence provided in relation to the request for medical data on 30 March 2012 and the meeting held on 21 September 2012.  The psychiatric evidence was that there was no change in the levels of Mr Coathup’s Beck depression and anxiety levels between January 2012 and mid-November 2012, indicating no objective evidence of any aggravation of the underlying psychiatric condition.

11. Mr Seit contended, in the event that the Tribunal found that the meeting conducted on 21 September 2012 had resulted in an aggravation of Mr Coathup’s psychiatric disorder, that this meeting had taken place to ensure reasonable administrative action and was taken in a reasonable manner in respect to Mr Coathup’s employment.

12. Mr Seit submitted that if in fact Mr Coathup did have a psychiatric disorder, it was a pre-existing condition secondary to his chronic pain syndrome and possibly aggravated by his unfounded fears of the complications that might arise from superficial thrombophlebitis and thrombosis. 

    TRIBUNAL’S DELIBERATIONS

13. Mr Coathup’s medical history has been documented in great detail.  His complicated varicose veins with superficial thrombophlebitis and thrombosis, his fractured elbow and subsequent development of a chronic pain syndrome and his mental health deterioration, whether a disorder or not, have historically been secondary to his chronic pain syndrome.  All of these conditions were manifest before he commenced employment with the AFP.  These conditions arose while he was serving in the Navy as a chef on a submarine. 

14. Mr Coathup’s hours of work with the AFP have always been restricted, based on his ongoing service-related disabilities for which DVA had accepted liability.  It is not necessary to reiterate the medical evidence as it is detailed and not the subject of any disagreement. 

15. Mr Coathup’s medical conditions have been considered as an injury and while such a classification is debatable, the Tribunal accepts that they are an injury in accordance with s 5A of the SRC Act. While, medically speaking, the varicose veins and the complications arising from them would be considered an ailment as defined in s 4 of the SRC Act, the precipitating event in 1991 was a minor surgical procedure on Mr Coathup’s right leg, which on return to service on the submarine resulted in an infection, cellulitis and thrombophlebitis. Thus the precipitating event that initiated long term surgical and medical treatment of his superficial venous thrombophlebitis was an injury, namely surgical intervention. 

16. Since 1991, when Mr Coathup first underwent stripping of his long and short venous systems in both legs, he has been more susceptible than normal to the development of thrombophlebitis.  As a result of the saphenous vein surgery the small veins detached from this system have reduced flow despite new connections (collaterals) and a greater incidence of thrombosis.

17. In relation to the superficial venous thrombophlebitic episodes, the expert medical opinions of the treating surgeon Mr Bruce and Professor Salem and (to a lesser extent) the opinions of the psychiatrists and Dr McCarthy, are that there is no known scientific correlation between sedentary work in a man of this age or stressful events and the clotting or blood flow mechanisms. While Mr Coathup has previously had liability under s 14 accepted for thrombotic superficial venous events on the basis that they were injuries simpliciter, this concept was refuted by Professor Salem, whose opinion the Tribunal accepts. Professor Salem was quite clear that the only treatment that would be effective in Mr Coathup’s case is the use of full thigh-length compression stockings and anti-coagulation.

18. The episode relating to Mr Coathup’s left thumb, originally termed a ganglion or cyst of synovium, bursa and tendon and then described as a large cell tumour, has not been  conclusively diagnosed; although the resected tissue is said to have been an organising clot in a small vein of the left thumb possibly a haemangioma.  The diagnosis of a large cell tumour had been suggested by the general surgeon who referred Mr Coathup to Mr Phil Slattery, a hand surgeon. 

19. The Tribunal did ask Mr Coathup if he had had a biopsy of this mass prior to seeing Mr Slattery and he said that he had.  While there is no pathology report arising from such a biopsy, it does raise the possibility that the biopsy caused the formation of a thrombus as a result of trauma to the vessel.  Despite this, the clear evidence from Professor Salem is that there is no contribution to such a lesion by either stress or the use of a computer mouse, as claimed by Mr Coathup.  Again, the Tribunal accepts the evidence of Professor Salem. 

20. Mr Coathup was diagnosed with chronic pain syndrome in 1994 as a result of a fracture of the head of his right radius that resulted in chronic pain in the elbow and eventually led to excision of the head of the radius.  He has received treatment for this condition.  He attends a pain specialist, Dr Tim McCarthy.  His treatment has been limited because of his intolerance of many medications and is now essentially analgesia.  All invasive procedures such as Ketamine infusion and sympathetic ganglion nerve blocks have failed.  Mr Coathup remains symptomatic, particularly in terms of sleep deprivation, as a result of this pain. 

21. There is no evidence that Mr Coathup’s chronic pain syndrome has worsened as a result of the claimed harassment and bullying, although several reporting doctors have commented on the contribution to his symptomatology by his (unfounded) fear that his thrombosis will result in a cerebrovascular accident or stroke due to an embolism of a thrombus from his leg to his brain or to a heart attack due to embolism of such a thrombus to his coronary arteries.  It appears to the Tribunal that several persons have endeavoured to explain to him that this is impossible.

22. On the evidence adduced, the Tribunal cannot find any supported independent finding of bullying and harassment. Nor is there medical evidence of an aggravation of Mr Coathup’s psychological/psychiatric disorder, his chronic pain syndrome or the superficial thrombophlebitis and thromboses in his lower limbs. These medical conditions all predated Mr Coathup’s employment with the AFP and all have been accepted by DVA as being related to his defence service.  In the alternative, if it had been found that any or all of the pre-existing conditions had been aggravated by the request for medical information on 30 March 2012 or the meeting of 21 September 2012, the evidence is that these events were primarily aimed at assisting Mr Coathup in terms of understanding his medical restrictions and assessing the need for further rehabilitation within an overall effort to improve the performance of the Melbourne office.  As such, these requests and the meeting were reasonable administrative action taken in a reasonable manner in accordance with s 5A(1)( c).

23. The Tribunal affirms the decisions under review.

I certify that the preceding 101 (one hundred and one) paragraphs are a true copy of the reasons for the decision herein of:
Miss E A Shanahan, Member

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

Administrative Assistant

Dated 18 December 2015

Dates of hearing	12,13 & 14 November 2015
Applicant	In person
Counsel for the Respondent	Mr Roy Seit
Advocate for the Respondent	Nam Nguyen
Solicitors for the Respondent	Sparke Helmore