Colleen McAullay and Comcare - [2014] AATA 163

[2014] AATA 163

Division General Administrative Division

File Number

2013/1084

Re

Colleen McAullay

APPLICANT

And

Comcare

RESPONDENT

DECISION

Tribunal
Deputy President S D Hotop

Date 26 March 2014

Place Perth
The decision under review is affirmed.

....................[sgd]..........................................
S D Hotop
Deputy President

CATCHWORDS
COMPENSATION – rehabilitation – applicant suffered compensable neck injury in July 2011 – applicant participated in various rehabilitation programs from August 2011 – respondent determined that approved program provider develop appropriate rehabilitation program for applicant – applicant physically capable of undertaking rehabilitation program – applicant should undertake appropriate rehabilitation program to be developed by approved program provider – decision under review affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth), s 4(1), s 36 and s 37
REASONS FOR DECISION
Deputy President S D Hotop
26 March 2014
Introduction

Colleen McAullay (“the applicant”) commenced employment with CRS Australia on 21 July 2008 as an Employment Services Consultant.
On 2 August 2011 the applicant made a claim for compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“SRC Act”) in respect of a condition described as “acute neck strain on background of chronic neck injury” which she claimed to have suffered on 15 July 2011 in the performance of her employment duties, and for which she first sought medical treatment on 15 July 2011.
On 12 October 2011 a delegate of Comcare (“the respondent”) made a determination accepting liability under s 14 of the SRC Act to pay compensation to the applicant in respect of “aggravation of neck sprain (left)”.
On 6 July 2012 a Senior Rehabilitation Case Manager, Department of Human Services made a determination under s 37 of the SRC Act that the applicant’s “rehabilitation provider … develop an appropriate rehabilitation program with the goal of achieving a return to pre-injury hours and duties”.
Following a request by the applicant’s (then) solicitors for a reconsideration of the abovementioned determination, a Review Officer of the respondent, on 11 January 2013, made a “reviewable decision” under s 38(4) of the SRC Act affirming that determination.
On 12 March 2013 the applicant lodged with the Tribunal an application for review of the abovementioned reviewable decision.
The Evidence
The evidence before the Tribunal comprised the “T Documents” (T1–T165, pp 1–496) lodged by the respondent in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) and:
·supplementary documents (ST1–ST100, pp 1–286) filed by the respondent on 29 November 2013 (Exhibit R1);
·statement of the applicant, dated 6 January 2014 (Exhibit A1);
·supplementary statement of the applicant, dated 21 January 2014 (Exhibit A2);
·Exhibits A3 – A5 tendered by the applicant;
·Exhibits R2 – R4 tendered by the respondent; and
·the oral evidence of the applicant, Dr Andrew Harper, Dr Joel Silbert, and Dr Mary Wyatt.
The Applicant’s Evidence
The applicant confirmed that she had signed a statement, dated 6 January 2014, prepared for the purpose of this proceeding, and that its contents (as amended by her in her oral evidence) are true and correct. That statement (as amended) is as follows:
“ BACKGROUND
1.    My name is Colleen McAullay. I was born on … August 1953.
2.    …
3.    I am currently not working.
4.I completed school at age 16 at Lady’s College (now called Mercedes) and also boarded at Santa Maria College.
5.    I completed a diploma of teaching in approximately 1981.
6.    I completed a diploma in Frontline Business Management in 2003.
WORK HISTORY
7.After I finished high school I worked at different pharmacies.
8.In about 1972 I completed a course called ‘How to Use a Telex’ at a Business College in Perth.
9.After I completed the telex course I got married and had children. I did not work anymore.
10.In about 2002 I worked at Sir Charles Gairdner as a patient inquiries officer for about 11 years. This was a casual position which I had in addition to my other jobs.
11.In about 2003 I worked at Mcauley Employment and Training (now known as Centrecare) as a senior training consultant in the jobsearch and training department. I won many awards in this position.
12.In about 2006 I worked at ORS Rehabilitation Services as an employment consultant. I was there for about one year.
13.I then worked at Communicare as a senior in the job search training department.
14.Sometime in 2007 I worked at Employment Plus (Salvation Army) as a training consultant. While in this position I was offered a job in the same company as a disability service consultant, which I took. I worked in that position for about 6 months.
15.From about 2006-2008 I worked at various Western Australian metropolitan prisons and ran life skill and family skill courses for the prisoners. I would run barbeques in the prison and invite employers so the prisoners would have job prospects.
16.In about 2008 while working at the Western Australian prisons I had a compensation claim. The compensation was for a stress claim. I wasn’t given a walky talky and was not given the appropriate measures to protect myself. An aboriginal lady threatened to come after me with an axe. I went to the doctors as I was really stressed and concerned. I had several months off work due to this incident.
17.On 21 July 2008 I began work as an employment consultant at CRS Australia (‘CRS’).
GENERAL HEALTH
18.All throughout my life I have worked really hard and never had any really serious health problems save for my neck injury.
19.I have raised 3 children:
·[A] 38;
·[J] 34; and
·[M] 26.
WORKING AT CRS
20.When I first started working at the Midland office of CRS I was not given a headset. I was given a normal telephone to use and would sit at my desk with the handset in the crunch of my neck and typing notes. This was how most of the day was spent.
21.In 2008, roughly about 6 weeks into working at CRS, I got a sore neck. I organised and went to physiotherapy myself without telling work as I did not want to concern them and as I was a temp at the time. I did not want to risk not getting a permanent job there.
22.I believe I got a sore neck from having the handset crunched in my neck much of the day and typing on the computer.
23.I visited doctors who gave me cortisone injections and morphine patches to help with the pain. I would also go to physiotherapy to help with the pain.
24.In 2009 I requested to be transferred to the Mirrabooka office of CRS. On 14 April 2009 while working at the Mirrabooka office, I made a request to work 3 days a week for a six month period. I wanted to work 3 days a week so I could attend to my neck problems on my days off and wouldn’t have to take time off work
25.This neck pain continued from 2009 to 2011 while working at CRS. It settled down after a few months but every so often would flare up a bit although it is [sic] not as bad as it is now.
26.I wasn’t in constant pain. For example one month would be pain free and the next month would be more painful. When I did have the pain, I was able to manage it with medication, cortisone injections and physiotherapy.
ACCIDENT AT CRS
27.On 15 July 2011 I was at my desk and my computer wasn’t working so I rang the head office help desk to fix it.
28.The help desk told me to take the cords out of my computer from the back. I leant over and pulled the cords out from the computer. As I did it I felt a crunch in my neck. My supervisor … saw me do this.
29.It was really painful. However, I managed until 3pm in the afternoon then I went to my supervisor and told her I made a doctor’s appointment.
30.I left work and went to see Doctor Barr. He put me off work for a couple of days.
31.I asked the staff health at CRS if I could get physiotherapy. No one could help me as the staff health consultant was on holidays. I was told to call back upon her return.
32.I went back to work after a couple of days because I wanted to keep working.
33.Since this incident on 15 July 2011, I experience neck pain every day.
COMPENSATION
34.I was paid compensation from Comcare for my neck injury from 15 July 2011 (the date of my injury).
35.On 9 December 2013 Comcare ceased my compensation payments as they claimed I did not presently suffer from the effects of my neck injury on 15 July 2011.
36.I have requested a review of this decision as I believe it is unreasonable to change direction at this point in the proceedings, particularly just prior to the trial in January 2014.
HISTORY OF HOW THE INJURY HAS AFFECTED ME
37.After my injury on 15 July 2011 I wasn’t doing my job to the best of my capacity at CRS because it caused me pain to do the usual tasks I would do such as typing, phone calls and liaising with clients. I continued to do these tasks as best I could.
38.For example, I would continue to run training courses and walk around the streets with clients. This aggravated my neck pain.
39.I would also drive clients around as much as I did before my neck injury and this would aggravate my neck condition.
40.I would continue doing ‘cold canvassing’ which was taking clients out with their resumes, seeing employers and trying to gain employment for the clients.
41.I would continue to run mock interviews with clients and attend meetings.
42.I continued to assist clients with drafting their resumes and complete my stat sheets. This all involved using the computer which would hurt my neck.
43.When I went home at the end of the day I was in terrible pain in my neck.
44.When I dropped to 3 days work to deal with me [sic] neck pain, I would be doing 5 days work in 3 days as my work load was not decreased.
45.While working at CRS Australia I used flexi time so I could leave earlier for work in the mornings and miss peak hour traffic as I found driving difficult and painful. When I was working for 3 days I was not allowed to use flexi time so I would have to drive to work in peak traffic and these long periods of time in a car aggravated my neck pain.
46.Another example is the work car CRS provided to me. The car was not suitable for me and would aggravate my neck condition as I had to constantly adjust the outside mirrors and car seat each time I used the car. I was also told to put the car mirrors and seat back into its [sic] original position once I had finished using it. I was not allowed to use my own car for work even though it would be easier for me.
47.I did complain to my superior. I went to his office. I said ‘I don’t know what I have done, but whatever I have done I am sorry can we just start again?’ and he didn’t even look at me, so I said ‘I said what I have wanted to say’ and went to walk out. As I did he said ‘I don’t have any staff members that give me a headache, but you give me a headache’ and was tapping at his head. I then left his office.
48.My superior asked me numerous times when was I going to retire. He would call me unprofessional, incompetent and say I have a memory problem. I felt like everything I did at work was wrong even though I was trying my hardest and was getting good clients on board with CRS.
49.The workplace management issues made my neck pain worse and caused me anxiety and stress. I felt that I was a burden to the office.
ACTIVITIES I CANNOT DO ANYMORE
50.I used to belong to a jive club called JDK in Osborne Park Bowling Club and Mullaloo Sportsman Club. I started jive in 2003 and would do it several nights a week but I had to stop due to my neck injury.
51.I used to enjoy painting my house but I cannot paint anymore.
52.I also cannot clean my house anymore so I have a house cleaner who comes in once a week.
53.I have trouble washing my hair so I go to a hairdresser to get it done.
54.I don’t cook at all because bending down and putting pots and pans in the dishwasher hurts my neck too much.
55.I can’t change sheets or do washing. My children help me make my bed and do household chores.
56.I can’t walk my German Shepard [sic]. I have someone walk my dog 3 or 4 times a week. I attempt to walk her with a special lead called a ‘halty’ but I don’t do it very well.
57.I used to enjoy swimming but I had to stop due to my neck injury.
58.I can drive but I find it very difficult if I drive for more than 5 – 8 minutes. If I do more than this I am in agony. I do not drive that much but I do visit my elderly parents who live in Nedlands. By the time I get back from there my neck is in spasms.
59.I don’t often go shopping but when I do I go with my children who help me. I have been out on my own shopping before and have abandoned trolleys because I couldn’t push them as I was in so much pain and was feeling so stressed.
60.I do not go out that much anymore and spend the majority of my time at home.
PHYSICAL SYMPTOMS
61.I had neck pain from 2008 but I could control and manage the pain with physiotherapy and medication and the pain was intermittent.
62.After the incident at work on 15 July 2011 the pain changed to an intense pain and it was constant, not on or off.
63.Cortisone injections can assist for short periods, but most of the time I cannot cope with the pain.
64.I suffer chronic pain when I sit for long periods of time.
65.The pain feels like a sharp, stabbing pain and also feels burning and pinching sometimes.
66.My neck goes into spasms, and I feel sharp pain on the left hand side that goes up to my ear. I feel like it goes up my left arm and into my head.
67.I feel like my ears are blocked all the time and they hurt. I’m constantly putting ear drops in my ears and I use ear candles to try and ease the pain but this doesn’t really help much.
68.I put a lot of cream on my neck to help with the pain. I have to constantly crack my neck once I put the cream on.
69.I get neck massages from my daughter who is a qualified massage therapist to help ease the pain. The pain eases for about half an hour but then it comes back.
70.My neck pain also causes me to have headaches.
71.Sometimes I am in so much pain I feel nauseous like I want to vomit.
72.To help with the pain I take the following medications:
·   Tramadol (when needed);
·   Pandaol [sic](when needed); and
·   Naprosyn daily;
SLEEP
73.I only get 2 – 3 hours sleep per night due to the neck pain.
74.I often wake up during the night with pain and turn the TV on to make myself fall to sleep but once I fall asleep I wake up again in pain shortly after. I cannot sleep for 7 hours or so straight like I used to.
EMOTIONAL SYMPTOMS
75.My neck pain causes me to feel down and teary and depressed most of the time.
76.My neck pain affects my mood at work as well as at home and I am often grumpy.
77.I don’t like being around people and I barely leave the house.
78.My neck problems increase my stress and anxiety. I have completely lost my confidence to work.
79.Everytime I see a doctor I get stressed as to how they are going to take what I say to them.” (Exhibit A1)
The applicant also confirmed that she had signed a supplementary statement, dated 21 January 2014, prepared for the purpose of this proceeding, and that its contents (as amended by her in her oral evidence) are true and correct. That statement (as amended) is as follows:
“ 1. I have completed work rehabilitation programs in the past.
2.From 25 July 2011 – 20 February 2012 I completed a work rehabilitation program with Leith Hoffman [sic] at Worklink.
3.From 13 February 2012 – 20 June 2012 I completed a work rehabilitation program with Jessica Williamson at Active/IPAR.
4.From 21 June 2013 – 17 January 2014 I completed a work rehabilitation program with Georgia Mehan at Active/IPAR.
5.I do not recall the exact tasks each program required me to complete. Overall, the programs included exercise programs, gym programs and physiotherapy.
6.The rehabilitation consultants would also come to CRS and conduct assessments. The rehabilitation consultants conducted an assessment on the work car I used and recommended the seats and mirrors in the car be changed to suit my neck condition. This was of benefit to me. However, I would have to constantly re-adjust the mirrors and seats after a colleague had used the car which would hurt my neck.
7.The CRS staff health [sic] would perform work station assessments and would adjust my desk, chair and computer monitor so it was more suitable to my neck problems. This did help me as it was easier for me to do my work and would help me manage my pain.
8.During the work rehabilitation programs I was required to do my full work duties including typing, siting [sic], standing, writing, using the keyboard and answering telephones.
9.I was recommended to take posture breaks every 30 – 60 minutes, use my telephone headset when taking calls, avoid sustained neck flexion and rotation, avoid lifting greater than 5 – 10 kilograms and maintain my elbows at side of body when working or lifting.
10.Despite these measures being put in place I still found my work tasks difficult and painful.
11.During one work rehabilitation program around December 2011, I had to take on extra clients which increased my work load. I could not cope with the extra work and it caused me further pain and stress.
12.The exercise programs did not help me but made my neck pain worse. During one of the exercise programs I had to stop after a few days as the pain was so intense.
13.The gym sessions required me to lift weights. This exercise I found to be difficult so difficult and it would cause me pain [sic].
14.Under the work rehabilitation programs I was also required to do exercises with a physiotherapist. The physiotherapy exercises did not help me and made my neck pain worse.
15.In about October 2013 I had a meeting with my general practitioner Dr Barr, my rehabilitation consultant and my staff health consultant. We had a discussion on work rehabilitation programs and exercise programs to improve my neck strength.
16.Dr Barr said I should try some exercise programs and ‘see how it goes’.
17.In around October 2013 I attempted to complete an exercise program. I again hurt myself lifting weights and Dr Barr then recommended I stop the exercise program.
18.I do not feel confident that I will be able to complete a work rehabilitation program without my neck pain causing me problems.
19.In the past the rehabilitation programs did not improve my work capacity except in marginal ways.
20.Dr Harper in his report dated 17 September 2012 states he does not feel that I am fit to return to work or for rehabilitation and that I require ongoing medical treatment.
21.Dr Harper in his report dated 30 July 2013 states that he does not believe my work capacity has been improved and does not believe I will be able to be retrained for alternative work.
22.On 16 January 2014 I had a meeting with Dr Barr and a rehabilitation consultant. Dr Barr told me he didn’t think I could go back to work with my neck injury. The rehabilitation consultant said she didn’t believe a return to work rehabilitation program would be of any benefit right now due to the pain associated with my neck injury.
23.I have always been open to trying work rehabilitation programs and have never refused to participate in any programs. I have tried everything asked of me by my rehabilitation consultants to improve my neck injury. Unfortunately nothing has really improved my condition.
24.At the present time I do not think I would be able to return to work or complete a work rehabilitation program as the pain relating to my neck injury is too much for me to handle and the exercise tasks included in the programs increase my neck pain and stress levels.” (Exhibit A2)

The applicant gave extensive oral evidence in examination-in-chief, cross-examination, and re-examination. It is, however, unnecessary to set out that evidence in detail in these reasons.
The Evidence of the Medical Witnesses
Dr Andrew Harper
Dr Harper, Occupational Physician, confirmed that he had prepared two reports regarding the applicant, one dated 17 September 2012, the other dated 30 July 2013.
Dr Harper’s report, dated 17 September 2012, which is addressed to the applicant’s former solicitors, states as follows:
“ Thank you for asking me to see Colleen McAullay who I reviewed in my office in Guildford on the 17^th September 2012 from 10.10 am to 12.30 pm. You have asked me to review her with regard to injury to her neck and work related stress.
You have provided me with reports from Drs Graziotti, Slinger, Campbell, Hayes, Terace and from Mr Barry White as well as from Activ Injury Management. Letters from Jove Bogoevski and from Peter Condidorio were also included.
HISTORY OF PROBLEM
Colleen McAullay is a 59 year old employment consultant who has not been working for the last 3 or 4 months. She was working as an employment consultant part-time up to that time. She was not coping with her work due to neck pain and stress and was therefore put off work by her general practitioner. While working she was experiencing aggravation in neck pain and she was suffering from insomnia, vomiting after work, emotional upset and chest pain at night. A principal cause of her stress was the communication with her manager. After work she was feeling irritable and grumpy and ‘very very tired’ and not wanting to go out anywhere. She remained tired.
She is a single parent with 3 daughters aged 36, 31 and 25. Her 25 year old daughter lives with her.
On the 7/3/09 she was seen by a general practitioner for neck pain which developed when she started working for CRS in July 2008. For 6 weeks she was on the telephone constantly all day without the benefit of a headset. Her head would be tilted to the left. This pain has persisted from that time. She says that she could barely drive to work because of her neck pain. The pain persisted despite getting a headset. Initially she went to a chiropractor whose treatment gave her some improvement. She was then seen by a physiotherapist for 2 months and this was beneficial but this was only temporary. As soon as she would drive her car having had treatment her neck pain would return. She then saw her general practitioner on the 7/3/09. She was referred to Dr Graziotti who she says has given her a number of injections into the neck with varying benefit. She is to have a further injection next week. She was referred to Dr Hayes. She has had 3 sessions of counselling through her employer to assist with pain management.
On the 5/7/11 [sic] she was leaning behind her computer to pull out the cords as her computer had gone wrong. As she reached and bent she experienced a sudden onset of neck pain.
The pain in her neck was on the left side aggravating her existing pain.
She was seen by her general practitioner Dr Barr on the same day. He put her off work for a week. She was treated with Lyrica and Panadeine Forte. She had physiotherapy for 2 months which was helpful initially but not subsequently. She also had Chinese massage which was very beneficial. Some of the treatment mentioned above such as injections from Dr Graziotti and consulting Dr Hayes followed the aggravation in July 2011.
In addition to the above physical injuries she has experienced work-related stress since November 2010 when she started working under a new manager. Within 2 weeks of his arrival he apparently told her that he could not justify her wages if she did not achieve her targets. This statement was in direct contrast to praise and compliments and an award for good performance that she had received. From this time she has experienced persistent, recurrent and frequent psychological pressure from him which she says has been labelled as bullying. She enumerated examples which you have documented in your letter to me. She says that everything she did was met with a complaint from her manager. She was never acknowledged for what she did well. She was accused of not doing a professional job. She also indicates that her manager’s assistant made frequent notes of her behaviour. She has had a small amount of counselling because of her stress.
Current treatment is Lyrica and Naprosyn. She generally does not walk her german shepherd because of her neck pain. There is no physiotherapy but she does have Chinese massage weekly. She is to start occupational therapy with manipulation and massage. She sees her family doctor weekly to fortnightly and psychological counselling is to start with Mr Barry White.
Current symptoms include:
1.Neck pain. She experiences pain on both sides of her neck antero laterally and she has pain over the cervical spines in the proximal and mid segments. Pain is worse on the left. She says her neck is in continuous pain and this is agony which is aggravated by turning her head and by other activities such as driving, doing computer work, handwriting, the head down position, lifting and exposure to the cold air from an air conditioner. Pain is constant and fluctuates according to the above activities. She gets relief from a local heat pack, topical cream, massage and hot weather. Pain radiates to both trapezius muscles and to the upper arms. Her neck is always stiff.
2.Left arm symptoms. She experiences pain in the upper arm and tingling in the fingers of her left hand. These symptoms are constant except for the time when they are relieved by massage for half an hour to an hour. Symptoms return as soon as she begins to drive. She experiences some weakness on opening jars with her left hand. There is no pain in the hand and no colour changes.
3.Mood changes. Emotionally she says that she is ‘not that good’. She no longer goes out as she previously did. She prefers to be alone. She says that she is ‘a little depressed’. She is anxious over her work and she says that ‘I still don’t understand what I did’. She says that she feels ‘terrible and shocking’. She is afraid of her manager and she has started to feel that there is something wrong with her. She cries often. She has no energy, her self-esteem is low and she no longer has self-confidence. She feels stressed. Her sleep is bad as her mind won’t rest and continues to go at ‘100 miles an hour’. She feels trapped. Her weight has increased. She says that she is very angry that someone else can do this to her. She feels that nothing will be done about her manager.
Her neck symptoms and mood changes are both deteriorating.
A CT scan of the cervical spine (3/11/10) reported multi-level degenerative change involving particularly the right C2/3 and C3/4 facet joints but there is no evidence of canal stenosis or nerve root impingement.
An x-ray of the cervical spine (11/7/12) reported slight narrowing of the C5/6 disc space and the C4/5 level reflecting chronic disc degeneration. There was minor marginal osteophytic lipping. There was degeneration of uncovertebral joints most pronounced at C5/6. There was facet joint disease more severe on the right at C3/4. There was narrowing of exit foramina at C3/4 bilaterally and on the right at C2/3. There was limited flexion. There was no subluxation seen on functional views. The pre-cervical soft tissue was not widened and there was no evidence of bony cervical ribs.
WORK HISTORY
In her work history she left school at the age of 16 at the end of year 11 in Perth. Her work experience has included pharmacy assistant, primary school teacher, English and maths teacher in Japan, office worker, job search trainer (8 years). She has worked in the prison system running pre-release courses. In July 2008 she joined CRS as a post placement support officer and subsequently as an employment consultant. She continued work until May 2012. There has been no work since.
Regarding her health prior to joining CRS in July 2008 she says that her health was good. She reports no health problems. She was swimming nearly every day and she was doing rock and roll dancing on 4-5 nights per week. She was physically fit. She was attending the gym 5 days a week. She was free of neck pain. She reports no prior injury to her neck and no previous episodes of neck pain. She has not previously had psychological counselling. She was free of stress, anxiety and depression. She reports no prior workplace stress of the kind that she has experienced. She is free of medical problems except for elevated cholesterol. She reports no subsequent injuries.
Regarding vocational qualifications she has a Teaching Diploma, Certificate IV in Training and Assessment and a Diploma in Business. In 2010 she received a Certificate of Recognition from CRS having been nominated by the staff for her passion to achieve. She has now lost her interest in work and she does not want to return to the workforce. She says that she has no idea what she could do.
Regarding activities of daily living she has discontinued attending the Jive Club and she has stopped swimming, attending the gym and sailing. Sleep is bad resulting in daytime fatigue. Dressing is unimpeded. She says that showering is a nightmare because of her neck pain. Currently her daughter washes her hair or she goes to the hairdresser. She does not like to sit for long. She says that driving is ‘a major problem’. Driving tolerance is 5-8 minutes with head turning bringing on pain and spasms in her neck. She does not know her endurance standing as she doesn’t stand very often. Walking tolerance is affected. She does not run. She has stopped handyman jobs whereas previously she says that she was ‘a fixer’ having brought up 3 children as a single parent. She does her own shopping. She limits her cooking and quite often buys takeaway food. Regarding the impact of her neck injury she says that this has resulted in a major impact on her life to the extent that she says that she doesn’t think she has a life. When commenting on the impact of her work stress she says that this has had ‘a hell of an impact’.
PHYSICAL EXAMINATION
On examination Colleen McAullay is a woman of stated age who was not in physical distress but towards the end of the interview she was repeatedly moving her neck due to neck discomfort. She appeared tense and anxious with a furrowed brow. She had a slight thoracic stoop. Her gait was normal. She sat through the interview but tended to move her head as mentioned above. Agility was reduced. She had a normal range of back movement. She was able to squat but had difficulty with her balance when straightening. Hip flexion while standing was unimpeded. On examination of the shoulders flexion was reduced to 120 degrees bilaterally due to neck and upper back symptoms. Rotation was within normal limits. On examination of the neck there was moderate to severe reduction in movement affecting flexion, extension, side flexion and rotation. Movements were between 25-50% of normal. There was mild tenderness in the mid segments of the cervical spine and on the right side of her neck at the same level.
ANSWERS TO QUESTIONS
In response to your questions I have the following comments to make:
(a) The date of examination was the 17/9/12.
(b)Findings on examination are given above. My diagnoses are work-related strain injury to the cervical spine superimposed upon pre-existing asymptomatic degeneration of the neck with resulting facet joint arthropathy. She is experiencing work-related stress resulting in symptoms of depression, anxiety and psychological disability. Both injuries were preventable. I attribute these conditions to her work place. I have not identified other factors contributing to her injuries.
(c)Treatment prescribed is summarised above.
(d)The above diagnoses are the direct result of work circumstances. Her initial neck injury resulted from the prolonged static awkward posture of the neck using a standard telephone with subsequent aggravation from a reaching incident. Her psychological injury resulted through stress from formal work-related communication with management. I anticipate disability resulting from these two injuries continuing for the foreseeable future.
(e)Regarding her neck she requires further treatment with her pain specialist Dr Graziotti and ongoing treatment with her general practitioner ($1,000). Regarding cost of specialist treatment for her neck this will need to be addressed directly with her treating specialist. I would recommend psychological counselling and possible psychiatric consultation regarding her stress and emotional symptoms. The cost of psychological treatment will need to be assessed by the providers but this may be in the order of $5,000 or more.
(f)She is restricted with regard to social, academic, sporting, recreational and domestic activities. The impact on activities of daily living is summarised above.
(g)Her work capacity since her injuries is defined above.
(h)At present I feel that she is totally incapacitated for all forms of gainful employment. I feel her neck injury and the resulting pain would preclude her from work in its own right and I feel her psychiatric symptoms similarly would render her incapacitated for gainful employment in their own right. At present I feel that she would be unable to compete for gainful employment. Her injuries may lead to permanent retirement but equally I cannot rule out the possibility of limited improvement to a degree sufficient for her to resume part-time restricted work at some stage in the future.
(i)At present my opinion is that she does not have retained work capacity. I am unaware of any experiential evidence to the contrary.
(j)I would recommend early finalisation of her claim.
(k)I have reviewed the list of symptoms you have itemised in your letter (q) to (ff). I confirm that all symptoms in your list (q) to (dd) are ones which have resulted as a direct consequence of her injuries. I did not elicit evidence of panic attacks or current suicidal ideation. I feel her disability is likely to continue for the foreseeable future.
(l)Regarding the questions posed by her employer to Dr Terace my comments are the following. I am not of the view that she has an organic problem interfering with memory or cognitive ability. Rather my view is that the anxiety and depression resulting from work stress is affecting her concentration and memory. My view regarding fitness for work is described above. At present I do not feel that she is fit for rehabilitation but rather she requires the medical treatment I have itemised above. The principal barriers to her returning to work are her persisting neck pain and the psychological disability she has now acquired from the psychological trauma at work. There would be absolutely no prospect of her being able to return to a workplace with her current regional manager. My recommendations for treatment are given above and as of the present time I feel that she is not receiving adequate psychological and/or psychiatric care however appropriate treatment with Mr White is scheduled to commence. Her long term employability has been deleteriously affected by her injuries. With regard to management of her medical conditions in the workplace the key element is correction of the psycho-social circumstances which have caused her injuries.
(m)With regard to the reports of Dr Terace and Dr Silbert my views are that she is unfit for work and that she is experiencing severely disabling psychological symptoms. The background to my assessment is given above. Specific impediments regarding work capacity include neck pain which interferes significantly with prolonged static postures and with her concentration. Emotional symptoms impair concentration, interpersonal relationships and the orderly organisation of her thoughts. Her depression is interfering with work capacity. She is having difficulty coping with everyday life at home let alone being able to resume work responsibilities. I have not identified any evidence through my clinical examination to support the opinion that she is capable of gainful work. I note Dr Terace’s and Dr Silbert’s opinions regarding this but I am unaware of evidence which substantiates their opinions.
(n)My opinion regarding bullying and her psychiatric symptoms is that her psychiatric condition is the direct result of the psychosocial environment at work apparently created by her manager to which she has been subjected. I feel it is likely that her psychiatric symptoms resulting from this will persist for the foreseeable future.
(o)I note the documentation made in [R’s] diary as you have pointed out.
(p)I note your comments regarding [the manager’s] treatment of Colleen McAullay. Your comments were substantiated during my consultation with Ms McAullay. The history I obtained was that of a series of incidents all of which were derogatory, non-supportive, critical, psychologically harmful and stress inducing for Colleen McAullay. This communication was repeatedly traumatic emotionally.
(q)As mentioned above my diagnoses include depression and anxiety. This has resulted from her perceiving psychological harassment. This has secondarily affected her concentration and memory.
(r)Regarding her psychosocial work environment I confirm that her description was one of an environmental [sic] which was stressful and mentally harassing. This created in her feelings of uncertainty, loss of control, unachievable demands and imbalance between effort and reward. These circumstances are all scientifically documented and recognized as being pathogenic and harmful to both physical and mental health.
SUMMARY
Colleen McAullay is a 59 year old employment consultant with CRS who is now on workers compensation benefits. She has sustained a neck injury and work-related psychological injury. She is unfit for work. The prognosis is unfavourable. She requires treatment for both pain and stress. I would recommend early closure of her claim.
The important question on which I do not have information is what occupational health and safety measures have been taken by CRS to prevent a recurrence of the harmful behaviour which has caused Colleen McAullay’s psychological injury. From an occupational medical perspective a corrective strategy is an integral part of the resolution of any work injury and particularly one that has occurred in the course of routine staff management. I would be interested in hearing from you with regard to the employer’s measures to remedy and prevent the injurious use of administrative authority over subordinates.
…” (T122, pp 374–380)
Dr Harper’s report, dated 30 July 2013, which is addressed to the applicant’s solicitors, states as follows:
“ Thank you for asking me to see Colleen McAullay who I reviewed in my office in Fremantle on the 30^th July 2013 from 8.10 to 9.40 am. I saw her originally for Mr O’Halloran on the 17^th September 2012. She drove herself to the appointment today as she had no alternative and she says that the long drive has aggravated symptoms.
Accompanying correspondence included letters from Dr Skerritt 12/9/12, Dr Hayes 23/5/12, Dr Rod Thompson 30/8/12, Dr Spear 28/2/13, Dr Graziotti 11/4/12, a Functional Capacity Assessment 19/3/13 and an MRI … [sic]
PROGRESS
Colleen McAullay remains out of the workforce. There has been no attempt to return to work but she has had a functional capacity evaluation and she has an exercise program with Active Injury management which started approximately a month ago. She continues on workers compensation benefits.
Her social situation remains unchanged. Her 26 year old daughter lives with her when she is home from her work up north.
Regarding treatment in the interim she has had psychological counselling from Mr Barry White which has been beneficial. This has been partly covered by a mental health plan. She has had massage and recently she has been seen by Dr Graziotti who has changed her medication and is planning to give her injections into the neck next week. She has had an exercise program through Injury Management but to date she has completed only 2 weeks of exercising. She resumed walking her dog after Christmas using a ‘halty’ which prevents her dog from pulling.
Current treatment includes fortnightly follow-up with her family doctor, Dr Barr. Currently she is being treated by Dr Graziotti. Her plan now is to attend the gym once a week in the context of her supervised exercise program. She has massage on a reasonably regular basis. She gets exercise from walking her dog twice a week. She is taking medication from Dr Graziotti which she takes for relaxation at night. She continues with Naprosyn daily. She has discontinued Lyrica. She takes Panadol intermittently ‘when I am not coping’. The plan of management is to continue with exercise.
Regarding the course of symptoms she says that she feels worse both physically and emotionally and she has experienced added avoidable stress from her workers compensation medical examinations.
Current symptoms include:
1.Neck pain. As mentioned she feels neck pain is worse. She says her neck is always sore and it feels as though it is out of place. Neck pain is worse in the winter and affects both sides of her neck but pain is worse on the left. Pain is constant and wakes her at night and she is unable to return to sleep. Aggravation comes from driving, stress, shopping, sitting in one position, prolonged standing and repeated turning of her head. She gets relief from massage, using her spa and applying topical cream. She says that neck pain interferes with everything in her life. Pain radiates to the left side of her upper back and left upper arm.
2.Left arm symptoms. She experiences left upper arm pain and left hand tingling. Upper arm pain is unchanged and relates to her neck pain. Left hand tingling has been aggravated from lifting weights in the gym.
3.Mood changes. Emotionally she feels worse with stress and anxiety. She feels that people don’t believe her. She is now more depressed than previously. She is beginning to feel useless. There has been added stress as a result of medical examinations. The prior description of her emotional symptoms continues. She says that she feels very angry because she is not believed.
Regarding activities of daily living the description in my initial report still applies. She continues to isolate herself and she says that washing her hair is a nightmare because of neck pain.
An MRI of the cervical spine (26/10/12) reports multi-level mild facet arthritis. At C5/6 there is a shallow disc bulge with endplate spurring worse in the right foramen where there is mild right foraminal stenosis. There is no neural impingement from the disc osteophyte complex. Facet joint arthritis affects the levels of C2/3, C3/4, C5/6 and C7/T1 being mild throughout except at the C3/4 level where changes are mild to moderate in severity.
A prior CT scan of the cervical spine reported advanced osteoarthritis in the right C2/3 and C3/4 facet joints.
I note the report of Dr Paul Skerritt (12/9/12) in which he diagnoses a major depressive disorder and generalised anxiety disorder attributable mainly to her personal work environment and experience with her manager. His assessment is that she is completely incapable of working.
PHYSICAL EXAMINATION
On examination Colleen McAullay appeared tense and her conversation tended to jump from one topic to another. Admittedly she had experienced a long drive through traffic to come to the appointment. She estimated her weight at 66 kgs. Posture was normal. Agility was reduced. She sat through the interview. Her gait was normal. She repeatedly twisted her neck throughout the interview saying that she felt her neck was out of alignment. On examination of the lumbar spine I found power to be normal in her legs. She was able to squat but needed support to straighten up. Hip flexion while standing was 70 degrees bilaterally. There was some reduction in back movement which she attributed to discomfort in her upper back and neck. Shoulder movement was normal except for forward flexion being limited to 140 degrees bilaterally due to neck discomfort. Neck range of movement was very limited. In forward flexion range of movement was less than 25% of normal. Extension was fair. There was restriction in both side flexion and rotation to a moderate degree. On palpation there was tenderness bilaterally in the neck and over spinous processes in the proximal segments. There was also tenderness at the base of the neck in the suprascapular musculature on the left. On examination of the arms I found sensation to be normal. Grip strength on the right was 26 kgs compared with 16 kgs on the left.
ASSESSMENT
In response to your questions my comments are the following;
Colleen McAullay continues to be significantly disabled by constant neck pain and emotional distress from symptoms of anxiety, depression and stress. Her work capacity has not improved and I feel she continues to be totally incapacitated for gainful employment due to physical and emotional symptoms. Her physical symptoms alone would preclude her from her pre-accident occupation of employment consultant and office worker. She is unfit for any manual occupation. The prognosis is unfavourable and I do not anticipate her regaining capacity to resume work for at least 2 years and possibly longer. Work restrictions are to avoid driving, repetitive head turning, lifting, dealing with the public or prolonged concentration. She is unable to compete for gainful employment in the open workforce. She is in need of ongoing treatment for her neck pain and for her psychological symptoms. I would recommend finalisation of her claim. I remain of the view that her disability is work related.
I do not see a role for retraining for alternative work. Her case however does raise the very important matter of the employer’s role in preventive measures to promote a good work environment.
…” (Exhibit R1, ST96)

In his oral evidence-in-chief Dr Harper elaborated on the opinion expressed by him in answer to question (h) in his first report, namely, that the applicant is “totally incapacitated for all forms of gainful employment”. He said that he had come to that conclusion for the following reasons:
·the applicant’s neck pain was sufficient, and continues to be sufficient, to preclude her from gainful employment because it is persistent pain and it interferes with sitting, sitting at a desk, computer work, carrying, driving, concentration;
·having regard to all of those impacts of her neck pain, he was unable to identify any evidence to indicate that she is capable of working;
·rather, what he was able to elicit was disabling neck pain which interfered with activities which she relies on for her employment as an employment consultant, including interviewing, desk work, writing, typing, computer work, and driving;
·he was “looking to find areas where she could do things” and he did not find any;
·accordingly, he did not have “a basis for saying she could work”; rather, he had “a basis for the contrary”.
Dr Harper was referred to a report of Dr Silbert, Consultant Occupational Physician, dated 28 June 2012, in which the opinion is expressed that, as regards her neck condition, the applicant is fit to undertake all of the requirements of her employment as an employee service consultant on a full-time basis (T84 – set out in paragraph 22 below). Dr Harper said that he did not see any evidence in Dr Silbert’s report for that opinion – more specifically, any evidence to support the proposition that she is physically able to perform each of the activities required by her employment.
Dr Harper said that, when he examined the applicant on 30 July 2013 for the purpose of preparing his second report, he found her to be suffering from “disabling pain”. He said that the applicant presented to him as a genuine person who, he felt, was giving an “honest report of her status”.
Dr Harper was referred to a subsequent report of Dr Silbert, dated 12 February 2013, in which the opinion is expressed that the applicant is fit to undertake a return to work program and, indeed, is fit to undertake all of the requirements of her previous employment (Exhibit R1, ST83 – set out in paragraph 24 below). Dr Harper said that, clinically and medically, what the applicant requires is treatment to help manage her pain and, until her pain is managed adequately, it is going to be futile trying to get her to do a rehabilitation program in which the focus is on the employment activities which she is required to undertake.
Dr Harper was referred to Dr Silbert’s reference to “formal examination” and “informal examination” in the section of his report relating to his examination of the applicant. Dr Harper said that “informal examination”, in which the doctor observes the person’s physical movements in an uncontrolled setting while taking a history, is “totally unreliable” and, in his opinion, it is undesirable to “place a lot of weight” on informal examination when seeking to make objective findings.
Dr Harper was referred to reports of Dr Wyatt, Occupational Physician, dated 17 September 2013 and 22 October 2013. As regards Dr Wyatt’s report of 17 September 2013 (Exhibit R1, ST98 – set out in paragraph 30 below), Dr Harper did not accept Dr Wyatt’s reference to discordancy between formal and informal examination; nor did he accept Dr Wyatt’s reference to the possibility of the applicant’s voluntarily exaggerating her symptoms. He disagreed with Dr Wyatt’s opinion that, as regards her neck condition, the applicant is capable of performing her normal employment duties and of undertaking a rehabilitation program without a graduated return to work and work restrictions.
In cross-examination Dr Harper acknowledged that his opinion that the applicant is totally incapacitated for work was based on the degree of the applicant’s complaints of neck pain.
Dr Joel Silbert
Dr Silbert, Consultant Occupational Physician, confirmed that he had examined the applicant on two occasions, namely, on 21 June 2012 and on 23 January 2013, at the request of the Department of Human Services and that he had provided reports relating to those examinations to the Department.
Dr Silbert prepared a “Section 36 Rehabilitation Assessment” report, dated 28 June 2012, which relates to his examination of the applicant on 21 June 2012 and states as follows:
“ …
History
Ms McAullay reports the development of left-sided neck pain. Whilst she denies a specific incident, Ms McAullay recalls the insidious onset and gradual development of left-sided aching pains to a severity of 7 or 8/10 and within a few months of commencement of employment with CRS. Ms McAullay ascribes the onset of symptoms to prolonged and repetitively maintaining a left laterally flexed head and neck in order to prop a telephone handset whilst undertaking her employed duties.
Ms McAullay recalls a persistence of symptoms. She recalls initially attending her general practitioner and being diagnosed with a likely neck strain. Ms McAullay recalls then pursuing chiropractic treatment on a self-referred basis. She denies any improvement of her symptoms with the chiropractic treatment. Ms McAullay also recalls the pursuit of physiotherapy treatment, and also without benefit.
Ms McAullay recalls a request for a headset instead of a telephone handset, a few months after commencement of her symptoms. She recalls a persistence of her symptoms and denies any benefit with the use of a telephone headset. Ms McAullay recalls persisting with her symptoms and with an intention to avoid complaining about her pain and in order to avoid a worker’s compensation matter.
Ms McAullay recalls a persistence of symptoms and continuing to pursue alternate medical treatments inclusive of acupuncture, massage and various medications. Ms McAullay again recalls persistence of her symptoms and without improvement and despite remaining compliant with her various pursued medical and allied health treatments.
Ms McAullay recalls referral to Dr Paul Graziotti (Pain Management Specialist). She recalls intermittent attendance with Dr Graziotti and undergoing injections to her neck. Ms McAullay recalls initially enjoying some improvement of her symptoms with the injections by Dr Graziotti. Nonetheless, she recalls undertaking injections on 3 occasions over a period of 3 years with decreasing benefit following each injection.
Ms McAullay recalls her symptoms fluctuating and able to manage them whilst maintaining her fully employed duties. Nonetheless, Ms McAullay recalls a significant deterioration associated with an incident at work in 2011.
Ms McAullay recalls her computer crashing some time in 2011 and attempting to navigate herself to the rear of the computer to investigate her problem. She recalls twisting her neck and feeling a crack and the instantaneous onset of neck pain. Ms McAullay recalls attendance with her general practitioner. She remains uncertain as to the nature and extent of pathology being identified. Ms McAullay recalls a change of her medications and being subsequently referred for medical review with Dr Paul Graziotti (Pain Management Specialist).
Ms McAullay recalls attendance with Dr Graziotti and subsequently undergoing further injections to her neck in September 2011. She recalls little benefit with these injections. Ms McAullay recalls a return to her general practitioner and then subsequently pursuing further assessment and treatment through Perth Integrated Health.
Ms McAullay recalls a trial of Chinese massage, as well as attendance at Perth Integrated Health. She also reports attendance with Dr John Hayes (Rheumatologist) in early 2012 and a suggestion to recommence ‘patches’.
Ms McAullay recalls persistence of symptoms, with the submission of a worker’s compensation claim about 2011. She recalls reducing her work place attendance in July 2011 to 4 days per week in order to alleviate her neck pain. Ms McAullay recalls undertaking 4 days of work place attendance per week for a period of approximately 3 months. During this time, Ms McAullay recalls deterioration of symptoms and despite attendance at work for only 4 days per week.
Ms McAullay recalls then further reducing her work place attendance to 3 days per week in 2012. During this period, she recalls an easing of her neck symptoms from approximately 8 or 9/10 in severity to a maximum 6 or 7/10 in severity. Nonetheless, Ms McAullay denies any significant improvement in her symptoms with reducing her work place attendance to 3 days per week.
Ms McAullay recalls persistence of symptoms and spasms within the neck about early May 2012. With this, she recalls attendance with her general practitioner and being certified unfit to return to work. Ms McAullay reports a persistence of her neck pain despite being certified unfit to return to work and denies any improvement from the symptomatic and functional perspectives, to date.
Current Symptoms
Ms McAullay reports persistence of her left-sided neck pain. She denies any period of remaining pain free subsequent to her initial onset of symptoms approximately 3 years ago. This is despite remaining compliant with all recommended medical and allied health management.
Ms McAullay reports a constant pain within her neck and remaining confined to the lower cervical region about the midline and left side. She report crepitus arising from the neck. Ms McAullay reports symptoms at approximately 4 or 5/10 in severity and rising to a maximum 8 or 9/10 in severity. Ms McAullay reports her symptoms most frequently at approximately 6 or 7/10 in severity.
Ms McAullay reports a deterioration of symptoms with any prolonged computer use, driving, prolonged posturing, or psychological stress. She reports a relative easing of symptoms with the avoidance of such activities or circumstances, Otherwise, Ms McAullay denies any other particular aggravating or relieving features.
Current Treatments
Ms McAullay reports the consumption of Lyrica 75 mg twice daily. She reports the commencement of meditation in the past 3 weeks. She also reports attendance with an occupational therapist twice per week and with treatment currently working on a left shoulder ‘tendon out of place’. Otherwise, Ms McAullay reports undergoing massage once per week. She denies any other current medications, treatments, nor the use of aids or appliances.
Current Activities
Ms McAullay reports currently being certified unfit for work. She reports utilising her available time walking her dog or socialising. Ms McAullay also reports maintaining her interest in framing miniature guitars. She denies a return to her usual recreational pursuit of jive dancing. Ms McAullay denies any other current social, sporting, leisure or recreational pursuits.
Past Medical History
Ms McAullay reports an incident at work about December 2011. She recalls opening the door of an under-bench dishwasher when the dishwasher tilted forwards to an angle of approximately 30-40°. Ms McAullay recalls attempting to arrest the movement of the dishwasher. Ms McAullay denies any initial injury or pain but recalls a heavy-type feeling. Ms McAullay recalls reporting the incident and her increase of neck symptoms. Ms McAullay also recalls the incident resulting in right-sided neck pain. She reports a resolution of these symptoms and a return to her pre-incident state.
Ms McAullay denies any other previous or intercurrent medical illnesses, injuries, operations or hospitalisations. She denies the use of any other regular or irregular medications and reports no known allergies.
Ms McAullay reports hypercholesterolaemia, controlled on medication.
Social and Occupational History
Ms McAullay advises of maintaining employment with CRS as an employment services consultant – APS Level 5. She reports undertaking employment on a full-time basis for the past 4 years and based at the Mirrabooka site. Ms McAullay reports significant interpersonal issues with her manager. She reports a breakdown of the relationship and despite an attempt to resolve any disputation between herself and her manager.
Ms McAullay reports previously maintaining employment with the Department of Corrective Services and based at Wooroloo Prison for a period of 2 years. She also reports previous employment as a senior consultant at the Macaulay Centre and previous employment with the Salvation Army.
Ms McAullay advises of residing with her daughter, who currently maintains FIFO employment with BGC Contracting. She reports 3 daughters and 4 grandchildren. Ms McAullay reports utilising her available time taking the dog for a walk or socialising. Ms McAullay also reports maintaining her interest in framing miniature guitars. Otherwise she denies any other current social, sporting, leisure or recreational pursuits. Ms McAullay reports previously maintaining an interest in jive dancing until the time of her neck injury. Ms McAullay is a non-smoker and reports the rare consumption of alcohol.
Examination
Examination findings at the consultation of 21 June 2012 revealed a forthright and reliable historian in no distress. Ms McAullay was noted to move freely and fluidly with no obvious deformity or gait disturbance. Ms McAullay was noted to stand 165 cm tall and weighed 64 kg.
Examination of the cervicothoracic spine revealed no evidence of any swellings, deformity, surgical or traumatic scarring. Discomfort was reported to palpation overlying the right cervical paravertebral musculature maximal at the C3 level and left-sided paravertebral musculature at the C5/6 level. Otherwise, there is no evidence of any swellings, deformity, surgical or traumatic scarring. Formal examination revealed a grossly restricted range of movement with all cervical movements restricted to 50% of the normal excursion. Informal assessment revealed forward flexion, extension, and lateral flexion measured to 75% or greater or [sic] the normal movement. An almost complete absence of extension and rotation of the head to the left and right on formal assessment was noted. Otherwise, the remainder of the examination of the cervical spine was normal.
Examination of the left and right shoulders was normal. A full range of pain free movement of the left and right shoulders was normal. Assessment of the rotator cuff was normal, bilaterally. There was no evidence of subacromial impingement, acromioclavicular joint pathology or joint instability.
A formal psychological/psychiatric assessment was not undertaken at the consultation of 21 June 2012.
Investigations
…
A CT of the cervical spine, performed on 3 November 2010, was reported as:
Multilevel degenerative change is demonstrated particularly involving the right C2/3 and C3/4 facet joints but there is no evidence of canal stenosis or nerve root impingement.
A CT of the head, performed on 5 April 2011, was reported as:
Normal cranial CT scan.
Assessment
In my opinion, Ms McAullay presents with a clinical picture consistent with a left lower cervical facet joint arthropathy. This is considered to have remained symptomatic and despite the passage of time and various treatment modalities pursued by Ms McAullay, to date. She presents with ongoing moderate to severe cervical symptoms. Ms McAullay demonstrates a grossly restricted range of cervical movement on formal assessment. Nonetheless, informal assessment reveals a markedly increased range of fluid movement and without evidence to support any increase of cervical symptoms.
Ms McAullay is also considered to present with significant relationship issues with her employer. Specifically, Ms McAullay was noted to be significantly focussed on the state of her relationship with management and specifically her senior manager. Informal assessment reveals anxiety and agitation with discussion of this matter.
Questions
With regard to the questions that you raise in your request of 14 June 2012:
1.Whether Ms McAullay is fit to carry out her normal duties as an Employee Service Consultant.
In my opinion, Ms McAullay is considered fit to undertake all of the inherent requirements of her employed role as an employee service consultant – APS Level 5. This remains applicable on a full-time basis, forthwith. The inherent requirements of this role have been reviewed by myself in their entirety. With this, Ms McAullay is considered fit to undertake such duties and with regard to her reported cervical symptoms. This, again, remains applicable forthwith.
2.Are any modifications required to Ms McAullay’s duties to enable her to return to work?
In my opinion, there is no indication to consider a requirement for any work place modifications or any aids or appliances to facilitate Ms McAullay’s return to work. She presents with an ongoing cervical facet joint arthropathy, for which there is no indication to consider any further work place modification in order to minimise any aggravation other symptoms or prevent her return to work.
3.Please provide guidance in relation to a graduated return to work programme. Please suggest an appropriate time frame to enable Ms McAullay to return to her pre-injury hours of work.
In my opinion, Ms McAullay is considered fit to undertake an immediate return to all of the inherent requirements of her employed role and on a full-time basis. There is no indication to consider a return to work programme or a graduated return to work.
4.How does the current treatment impact on Ms McAullay’s ability to perform her pre-injury duties?
In my opinion, Ms McAullay’s current treatment is not considered to be impacting upon her ability to perform the inherent requirements of her employed role on an ongoing and full time basis.
5.Ms McAullay has advised that her condition is exacerbated when driving in peak hour traffic or for long distance. She has also indicated that public transport makes her feel claustrophobic. Would you please provide your opinion on whether any restrictions apply with driving or using public transport.
Mc McAullay reports an aggravation of her symptoms with driving or prolonged posturing. Despite this, Ms McAullay is considered fit to undertake a return to the inherent requirements of her employed role on a full-time and unrestricted basis. She is also considered fit to participate in the travel to and from work either by private vehicle or public transport. There is no indication to consider any form of restrictions or modifications with regard to either matter.
6.Are there any other issues which should be considered in assisting Ms McAullay to return to work?
In my opinion, Ms McAullay’s reported relationship issues with her manager are considered to be the significant contributor to her reported ongoing cervical symptoms and incapacity for work. With this, it remains imperative that Ms McAullay’s work place relationships be immediately addressed in order to identify and resolve all outstanding issues.
7.If Ms McAullay is not fit to return to work, when would you consider it appropriate to conduct a review?
In my opinion, should Ms McAullay not achieve a return to work over a further period of 6-12 weeks and despite appropriate assessment and management of the above issues, then a formal review of Ms McAullay is indicated in order to identify any other reversible factors to facilitate a resolution of this matter.
…” (T84)
Dr Silbert also prepared a separate report, dated 28 June 2012, comprising a “Fitness for Duty Assessment”, at the request of the Department of Human services, in which the following questions and answers appear:
“ …
5.Is Ms McAullay currently fit to undertake a rehabilitation programme, such as a graduated return to work?
In my opinion, Ms McAullay is considered fit to participate in any form of vocational, functional or other rehabilitation. Ms McAullay is considered fit to participate in a graduated return to work programme.
6.If so, please provide your comments regarding Ms McAullay’s capacity to undertake the tasks and activities of an employee service consultant.
In my opinion, Ms McAullay is considered fit to undertake all of the inherent requirements of her employed role as an employee service consultant – APS Level 5. This remains applicable on a full-time basis, forthwith. The inherent requirements of this role have been reviewed by myself in their entirety. With this, Ms McAullay is considered fit to undertake such duties and with regard to her reported cervical symptoms. This, again, remains applicable forthwith.
7.Please provide guidance on a suitable return to work programme for Ms McAullay.
In my opinion, Ms McAullay is considered fit to undertake an immediate return to all of the inherent requirements of her employed role and on a full-time basis. There is no indication to consider a return to work programme or a graduated return to work.
…
9.Please discuss any barriers that you consider are impacting on a return to work, and include your recommendations for strategies to overcome these.
In my opinion, Ms McAullay’s significant barrier to a successful return to work remains her pre-occupation with her manager relationship. With this, the following is recommended to address and resolve this circumstance:
1.   Completion of a consultant psychiatric assessment.
2.   Engagement of an organisational psychologist to address and resolve outstanding issues between Ms McAullay and her manager.
3.   Consideration towards a neuropsychological assessment and on the basis of the clinical psychologist and organisational psychologist findings.
In my opinion, there is no indication to consider a requirement for any other medical or allied health management at present or in the foreseeable period to facilitate a return to work and overcome any barriers.
…
15.If Ms McAullay has signed an authority, please discuss her case and obtain further medical information from her treating GP, Dr Barr, and discuss this here. In your discussion, please include topics relating to current medical management, the employee’s capacity to perform duties, and any relevant issues that should be addressed now or in the future.
The nature and extent of findings at the consultation of 21 June 2012 have been discussed with Ms McAullay’s treating medical practitioner on 22 June 2012. Within this telephone consultation, Ms McAullay’s capacity for work was addressed. Agreement from Dr Anthony Barr (treating Medical Practitioner) was forwarded with regard to Ms McAullay’s deemed fitness to undertake a return to the inherent requirements of her employed role and that her significant and ongoing barrier to a return to work is the relationship issue with her manager.
…” (T85)

Dr Silbert’s report of 12 February 2013, which relates to his examination of the applicant on 23 January 2013, states as follows:
“ ...
History
As you are aware, Ms McAullay reports the development of left-sided neck pain. This has been documented previously in a medico-legal report prepared by myself dated 28 June 2012 and arising from consultation with Ms McAullay on 21 June 2012. At that consultation and again on 23 January 2013, Ms McAullay denied a specific incident, but recalled the insidious onset and gradual development of left-sided aching pains to a severity of 7 or 8/10 and within a few months of commencement of her employment with CRS. Ms McAullay ascribed the onset of symptoms to prolonged and repetitive maintenance of a left laterally flexed head and neck and in order to prop a telephone handset whilst undertaking her employed duties.
Ms McAullay was noted at the consultation of 21 June 2012 to report persistence of her symptoms and the subsequent pursuit of medical and allied health management. She recalls attendance with her general practitioner and being diagnosed with a likely neck strain. She recalls then pursuing chiropractic treatment on a self-referred basis. Ms McAullay was also noted to have undergone medical treatments inclusive of acupuncture, massage and various medications. She recalled then being referred to Dr Paul Graziotti (Pain Management Specialist) and undergoing injections to her neck with some temporary easing of her symptoms.
Ms McAullay was noted at the consultation of 21 June 2012 to report further attendance with Dr Graziotti, as well as subsequent attendance with Dr John Hayes (Rheumatologist) in early 2012. Ms McAullay was noted to continue with Lyrica 75 mg twice daily and the commencement of meditation. Otherwise, she denied any other milestones at the time of her assessment of 21 June 2012.
Ms McAullay was noted at the consultation of 21 June 2012 to report persistence of her left-sided neck pain and denied any period of remaining pain free subsequent to her initial onset of symptoms approximately 3 years prior. This was despite remaining compliant with all recommended medical and allied health management. Ms McAullay was considered to present with a left lower cervical facet joint arthropathy. This was considered to have remained symptomatic and despite the passage of time and various medical and allied health treatment modalities. Ms McAullay was also considered to present with significant relationship issues with her employer. Recommendations were made with regard to further medical and allied health management and Ms McAullay’s capacity for work
Progress to Date
Ms McAullay reports, subsequent to her initial assessment of 21 June 2012, of [sic] further management of her cervical symptoms. Despite this, Ms McAullay reports a persistence of her cervical symptoms and an overall deterioration from both the symptomatic and functional perspectives.
Ms McAullay recalls a return to Dr Paul Graziotti (Pain Management Specialist) and completion of facet joint injections about October 2012. She recalls an easing of her left-sided neck pain from approximately 8 or 9/10 in severity to approximately 3 or 4/10 in severity, following her injections. Nonetheless, Ms McAullay recalls the beneficial response being temporary in nature and a subsequent return of her neck to 8 or 9/10 in severity and being her pre-injection state.
Ms McAullay recalls attendance with her treating medical practitioner and the commencement of OxyNorm 10 mg twice daily and Maxamox 10 mg daily.
Ms McAullay also recalls a trial of a vibration machine and its subsequent cessation after discussing the treatment with Dr Graziotti. Otherwise, Ms McAullay recalls continuing her other treatments, inclusive of Chinese massage, acupuncture and her previously prescribed Lyrica medication.
Ms McAullay reports attendance with Mr Barry White (Clinical Psychologist) about August 2012. She recalls attendance once per week or fortnight. Ms McAullay reports a beneficial response from the psychological perspective. Nonetheless, Ms McAullay denies any significant improvement of her cervical symptoms with psychological management.
Current Symptoms
Ms McAullay reports an overall deterioration in the nature and extent of her cervical symptoms, subsequent to her initial assessment of 21 June 2012. She reports her general deterioration being that of an increase of symptoms, radiation of symptoms into her left shoulder, increased difficulty with undertaking physical activity and a general feeling of her neck being out of place.
Ms McAullay reports her current cervical symptoms ranging between 8 or 9/10 in severity and up to a maximum 10/10 in severity. She denies symptoms easing below 8 or 9/10 in severity and despite remaining compliant with all recommended medical and allied health management.
Ms McAullay again reports a deterioration of her symptoms with driving or with computer use. Indeed, Ms McAullay reports the deliberate avoidance of any form of computer-based activities due to an aggravation of her symptoms. Otherwise, she reports a deterioration of her symptoms being unpredictable and occurring without any significant, predictable or consistent precipitating or aggravating factors. Otherwise, Ms McAullay reports a relative easing of her symptoms with the avoidance of activities likely injurious to her neck, massage, and her prescribed medications.
Ms McAullay denies any other particular aggravating or relieving features.
Current Treatments
Ms McAullay reports continuing a variety of treatments for her cervical symptoms. Specifically, she reports continuing with the following medications:
1.   Lyrica 75 mg twice daily.
2.   OxyNorm 10 mg twice daily.
3.   Maxamox 10 mg daily.
Ms McAullay also reports continuing Chinese massage, acupuncture and counselling through Mr Barry White, Clinical Psychologist. Otherwise, Ms McAullay denies any other medications, treatments, nor the use of aids or appliances.
Current Activities
Ms McAullay reports continuing to remain certified unfit to return to work. She denies undertaking any form of gainful employment subsequent to her initial assessment of 21 June 2012. Ms McAullay reports utilising her available time socialising with friends or undertaking her activities of day to day living. Ms McAullay denies any other current social, sporting, leisure or recreational pursuits other than spending time with her dog.
Past Medical History
Ms McAullay reports intercurrent psychological symptoms and lodgement of a worker’s compensation claim, in January 2013. Ms McAullay reports the development of a variety of psychological symptoms in 2010 and reportedly arising from her management by her manager at that time. Ms McAullay reports persistence of symptoms and subsequently lodging a worker’s compensation claim. She reports an overall deterioration of her psychological symptoms with the preparation of documents and recalling the events and circumstances with her original manager.
Ms McAullay denies any other recent or intercurrent medical illnesses, injuries, operations or hospitalisations. She denies the use of any other regular or irregular medications and again reports no known allergies.
Social and Occupational History
Ms McAullay advises of continuing to remain certified unfit to return to work. She reports her personal circumstances remaining unchanged since the time of her initial assessment of 21 June 2012. With this, Ms McAullay reports again residing with her daughter, who currently maintains FIFO employment with BGC Contracting. She again reports three daughters and four grandchildren. Ms McAullay again reports utilising her available time taking her dog for a walk or socialising. Otherwise, Ms McAullay denies any other current social, sporting, leisure or recreational pursuits. Ms McAullay denies a return to her previous interest in jive dancing. Ms McAullay remains a non-smoker and again reports the rare consumption of alcohol.
Examination
Examination findings at the consultation of 23 January 2013 again revealed a forthright and reliable historian in no distress. Ms McAullay was again noted to move freely and fluidly with no obvious deformity or gait disturbance. Ms McAullay was again noted to stand 165 cm tall and weighed 65 kg.
Examination of the cervicothoracic spine again revealed no evidence of any swellings, deformity, surgical or traumatic scarring. Discomfort was again reported to palpation overlying the right cervical paravertebral musculature maximal at the C3 level and left-sided paravertebral musculature maximal at the C5/6 level. Formal examination of movement revealed a gross restriction of all cervical movements and being restricted to less than 25% of the normal excursion. Informal examination again revealed an increased range of movement to approximately two-thirds of the normal excursion in all directions. Otherwise, no further formal assessment of the cervicothoracic spine was undertaken at the consultation of 23 January 2013.
Examination of the lumbosacral spine revealed no evidence of any swellings, deformity, surgical or traumatic scarring. A restricted range of lumbosacral movement on formal examination was noted, with all movements restricted to approximately one-third of the normal excursion. Informal examination revealed an increased range of movement to approximately two-thirds of the normal excursion. Otherwise, no further formal assessment of the lumbosacral spine was undertaken at the consultation of 23 January 2013.
Examination of the left shoulder revealed an elevated scapula as compared to the right (unaffected) side. A full range of left shoulder movement was demonstrated. Provocative testing of the rotator cuff was normal. There was no evidence of subacromial impingement, acromioclavicular joint pathology or joint instability.
A formal psychological/psychiatric assessment was not undertaken at the consultation of 23 January 2013.
Investigations
An MRI of the cervical spine, performed on 26 October 2012, was reported as:
Multilevel mild facet arthritis. C5/6 shallow disc bulging and end plate spurring worse in the right foramen where there is mild right foraminal stenosis.
Assessment
In my opinion, Ms McAullay is again considered to present with a clinical picture consistent with cervical pain, for which a left lower cervical facet joint arthropathy cannot be excluded. This is considered to remain symptomatic and despite the passage of time and various modalities pursued by Ms McAullay, to date. Ms McAullay is noted to present with an overall reported deterioration in the nature and extent of her cervical symptoms and functional capabilities. This is noted to have occurred over a period of approximately 7 months and without a specific incident or physical circumstance to account for the deterioration of symptoms. Ms McAullay is noted to report significant psychological symptoms, for which these symptoms may account for an overall deterioration of her symptoms and adversely impact upon her overall capacity for activity.
In my opinion, Ms McAullay is considered to present with significant inconsistencies on formal examination. It is not possible to reconcile the noted discrepancies and on the basis of a diagnosis of a cervical facet joint arthropathy or any other anatomical derangement.
Questions
With regard to the questions that you raise in your request of 23 January 2013:
1.Please provide your diagnosis of any medical condition/s suffered by Ms McAullay at the present time.
In my opinion, Ms McAullay is again considered to present with a clinical picture consistent with a left lower cervical facet joint arthropathy. Nonetheless, the possibility of other factors contributing significantly or adversely to her current presentation cannot be excluded. There are noted discrepancies between formal and informal assessment findings. It is not possible to reconcile such discrepancies on the basis of any underlying anatomical derangement. Ms McAullay is noted to report ongoing psychological symptoms. This may account (at least in part) for her noted discrepancies on formal versus informal assessment.
2.Is Ms McAullay currently fit to undertake a rehabilitation programme, such as a graduated return to work?
In my opinion, Ms McAullay has a capacity for work. With regard to her reported cervical symptoms, she is considered fit to undertake a return to work, forthwith. Ms McAullay is also considered fit, with regard to her cervical symptoms, to participate in a graduated return to work programme.
Ms McAullay reports ongoing intercurrent psychological symptoms. She reports lodgement of a worker’s compensation claim in January 2013. Any consideration towards a graduated return to work should include appropriate formal assessment of Ms McAullay from the psychological perspectives and specifically with addressing her reported claim for compensation.
In my opinion, it remains imperative that Ms McAullay’s capacity for work and ability to participate in a return to work programme be clarified between her cervical symptoms and reported psychological symptoms. This may be undertaken by a suitably qualified clinical psychologist.
3.If you consider Ms McAullay is currently unfit to commence a rehabilitation programme, please indicate:
a.when you consider she is likely to be fit to attempt a return to work
b.when would you consider it appropriate to conduct a review
c.activities/treatment that can be undertaken now to assist her regain [sic] capacity for employment/be work-ready.
In my opinion, with regard to Ms McAullay’s reported cervical symptoms, she is considered fit to participate in a return to work programme, forthwith. Ms McAullay is considered fit to undertake all of the inherent requirements of her employed role as an Employment Services Consultant – APS Level 5, forthwith. There is no indication to consider a requirement for any specific medical restrictions with regard to the nature and extent of Ms McAullay’s reported cervical symptoms.
4.Please discuss any barriers that you consider are impacting on a return to work, and include your recommendations for strategies to overcome these.
In my opinion, Ms McAullay’s reported psychological symptoms are considered to be contributing significantly and adversely towards her return to work. With this, it is recommended that Ms McAullay undergo appropriate assessment by a suitably qualified clinical psychologist. Should this not be successful in identifying and resolving such factors, then referral to a consultant psychiatrist is indicated.
5.Please comment on the extent to which any non-medical factors may be impacting on Ms McAullay’s capacity for employment?
In my opinion, Ms McAullay’ reported psychological symptoms are considered to be contributing significantly and adversely towards her ongoing incapacity for work. There is no evidence that Ms McAullay’s underlying cervical pathology is contributing significantly or adversely to a capacity for work. Again, it is not possible to reconcile the discrepancy between formal and informal findings on examination at the consultation of 23 January 2013.
6.Is Ms McAullay receiving appropriate medical treatment for her medical condition/s? Are there any recommendations you would make to enhance the treatment programme?
In my opinion, it is not possible to reconcile why Ms McAullay requires narcotic analgesia in the form of OxyNorm and Maxamox. She is noted to report a deterioration of her symptoms and overall level of functioning subsequent to her initial assessment of June 2012 and despite the commencement of narcotic analgesia. With this, it is recommended that a comprehensive review of Ms McAullay be undertaken in order to ascertain the nature and extent of all factors contributing significantly and adversely to her current presentation.
In my opinion, it is considered more likely that psychological and/or psychiatric treatments will be of benefit with regard to addressing and improving Ms McAullay’s symptoms and overall clinical status.
7.What impact will the condition/s have on Ms McAullay’s capacity for employment long-term?
In my opinion, Ms McAullay’s ongoing psychological symptoms are considered more likely to be contributing significantly and adversely to her long term capacity for employment, rather than any manifestations of her reported cervical pathology.
8.If Ms McAullay has the capacity, will Ms McAullay be able to return to her substantive role as the [sic] Employment Consultant?
In my opinion, Ms McAullay is considered to be medically fit from the physical perspective to return to her substantive role as an employment consultant, forthwith. Again, other factors are considered to be contributing significantly and adversely to her current presentation.
9.If Ms McAullay has signed an authority, please discuss her case and obtain further medical information from her treating GP Dr Barr … and discuss this here. In your discussion, please include topics relating to current medical management, the employee’s capacity to perform duties, and any relevant issues that should be addressed now or in the future.
Ms McAullay’s clinical status has been previously discussed with Dr Anthony Barr (treating Medical Practitioner). As previously noted, following telephone consultation with Dr Barr on 22 June 2012, Ms McAullay was deemed fit to undertake a return to the inherent requirements of her employed role and that a significant ongoing barrier to a return to work was the relationship issue with her manager. This is noted to have deteriorated on the basis of Ms McAullay’s testimony and with increased psychological symptoms and subsequent lodgement of a worker’s compensation claim.
10.With regard to releasing the contents of this report, do you recommend that this report be released directly to Ms McAullay or through a treating medical professional?
In my opinion, the contents of this medical report may be released directly to Ms McAullay.
11.Please provide any other comments you feel are relevant to assist the management of Ms McAullay’s medical condition/s in the workplace.
In my opinion, there is again evidence of cervical symptoms consistent with a previously diagnosed left cervical facet joint arthropathy. Nonetheless, the significant problem continues to be deemed related to ongoing psychological manifestations of the reported relationship between Ms McAullay and her initial manager at CRS. Ms McAullay is noted to have subsequently lodged a worker’s compensation claim in January 2013. It remains imperative that such matters are appropriately addressed and resolved in order to facilitate a satisfactory resolution of symptoms and other circumstances that likely preclude Ms McAullay’s return to work.
In my opinion, should Ms McAullay’s reported psychological/psychiatric symptoms not be appropriately addressed and resolved, then she is considered unlikely to achieve any satisfactory recovery or progress and sufficient to undertake a successful and sustainable return to work.
…” (Exhibit R1, ST83)
In his oral evidence-in-chief Dr Silbert said that a “formal’ (or “direct”) examination process follows a set of rules and includes (relevantly) asking the examinee to move their head and neck, and that “informal” (or “indirect”) examination is “equally as scientific” and involves observation of the examinee’s movements during the rest of the consultation (other than the formal examination). He disagreed with Dr Harper’s opinion that informal examination is not a valid or reliable method of assessment. He said that informal assessment is a valid and reliable methodology and is utilised to validate or invalidate the examinee’s reported medical complaints.
As regards his expressed opinion that the applicant, notwithstanding her complaints of neck pain, has the physical capacity to undertake a return to work program and, indeed, to undertake all of the requirements of her employment as an employment services consultant, Dr Silbert confirmed that his informal (or indirect) assessment of the applicant during his consultations with her “played a part” in his forming that opinion.

In her examination-in-chief Dr Wyatt was asked to elaborate on the discrepancy, which she found, between the applicant’s neck movements on formal examination and her spontaneous neck movements during the rest of the consultation. She said that there was “almost negligible movement” when she asked the applicant to demonstrate neck movement – a very small amount of movement in bending the neck forward and turning the head to the side - but, when the applicant was sitting during the consultation and “interacting with the history”, she tended to move and stretch her neck, thereby demonstrating a lot more movement of her neck than she demonstrated when asked to do so.
In cross-examination Dr Wyatt acknowledged that she had not included in her report specific details about the employment duties performed by the applicant in her role as an employment services consultant but she added that she had asked the applicant to describe those duties.
Dr Wyatt acknowledged that she did not use an instrument to measure the applicant’s neck movements and that she had made an estimate of those movements on observation.
In response to questions from the Tribunal, Dr Wyatt said that the normal ranges of neck movements are:
·45 degrees in flexion and extension;
·80 degrees in rotation;
·45 degrees in lateral flexion;
although the expected ranges of movement for a person of the applicant’s age would probably be less. She added that the applicant demonstrated:
·approximately 10% of the expected range of movement in flexion;
·approximately 40%-50% of the expected range of movement in extension;
·approximately 15%-20% of the expected range of movement in rotation; and
·approximately 30% of the expected range of movement in lateral flexion.
Dr Wyatt also expressed the opinion that, while it would be appropriate to require the applicant to undertake a rehabilitation program having regard only to her neck condition, it would not be appropriate to require her to undertake a rehabilitation program having regard to her “general presentation”, including her personality and psychological or psychiatric condition. She added, however, that she was expressing the latter opinion “as a lay person” and that a psychiatric review, and especially a neuropsychological assessment, should be obtained in order to determine that issue.
Other Medical Evidence
Dr Anthony Barr
Dr Barr has been the applicant’s treating general practitioner since 1983. Unfortunately, Dr Barr was not called as a witness in this proceeding but it appears from documentation which is in evidence that Dr Barr has regularly issued workers’ compensation medical certificates relating to the applicant’s incapacity for work by reason of chronic neck pain since July 2011 and has certified her as “totally unfit for work” from May 2012 to July 2013 (see T65, T73, T76, T80, T92, T94, T95, T103, T136, T138 and Exhibit R1, ST40).
In a report addressed to the respondent, dated 25 January 2013, Dr Barr, in response to a question about the relationship between the applicant’s psychological condition and her physical condition, opined that there is “a direct relationship between these two factors”. He also opined, in response to a question about the applicant’s “current capacity to work”, that she is “completely incapable of working”. (Exhibit R1, ST82)
Dr Barr has also been involved in the preparation of various rehabilitation programs for the applicant since her last attendance at work on 9 May 2012. However, a Closure Report, dated 23 January 2014, by Ms G Mehan, Occupational Therapist with IPAR Rehabilitation, regarding the applicant’s rehabilitation programs with IPAR Rehabilitation, notes that on 16 January 2014 a case conference was held at which Dr Barr indicated that the applicant continued to “not have any work capacity” and that he was unable to determine when she will have work capacity “as her symptoms have not yet stabilised”, and that:
“ It was agreed by all parties that as Ms McAullay continues to have no work capacity that [sic] vocational rehabilitation should cease and be re-engaged if and when suitable and when Ms McAullay’s symptoms have stabilised. …” (part of Exhibit R2)
The Tribunal notes that the applicant, in para 22 of her supplementary statement dated 21 January 2014 (set out in paragraph 9 above), refers to a “meeting with Dr Barr and a rehabilitation consultant” on 16 January 2014.
Dr Barrie Slinger
A report of Dr Slinger, Consultant Orthopaedic Surgeon, dated 30 September 2011, which is in evidence (T25), was referred to briefly in submissions. In that report, which relates to Dr Slinger’s assessment of the applicant on 28 September 2011 at the request of the respondent, Dr Slinger stated (inter alia):
“ …
In the cervical spine and shoulders there was no tenderness and no wasting. Movements in the cervical spine were said to be associated with stiffness and certainly lacked a few degrees in all directions with minor discomfort.
At the shoulders, no wasting, no tenderness and movements were full and painless.
…
In my professional opinion this lady sustained an aggravation of a pre-existing symptom as a result of the incident of 15 July 2011, the precise diagnosis is that of a soft tissue injury increasing the already symptomatic degenerative change in the cervical spine.
…
There is no suggestion that this lady is voluntarily exaggerating her symptoms, consciously guarding restriction of movement, displaying symptoms and examinations inconsistent or demonstrating a range of movement during passive observation which was not replicated during clinical examination. In effect there were no inconsistencies.
…”
Dr Rod Thompson
A report of Dr Thompson, Orthopaedic Surgeon, dated 22 August 2012, which is in evidence (T106), was also referred to briefly in submissions. In that report, which relates to Dr Thompson’s assessment of the applicant on 22 August 2012 at the request of the respondent, Dr Thompson stated (inter alia):
“ …
On examination today, when she was sitting in consultation she was frequently moving her neck in slightly circular motions which she felt was to try and relieve the neck pain.
However, when she was examined she was very reluctant to move the neck in extension and flexion more than a few degrees because she said this was painful. I did not push her any further for fear of aggravation. Lateral tilt to the left and right was about two thirds of what I would expect. Rotation was approximately 75% of what I would expect. There was no neurological deficit in her upper limbs.
…
3.Are there any aspects of the clinical examination which tend to suggest Ms McAullay is:
a)    voluntarily exaggerating her symptoms.
I do not feel that Ms McAullay is voluntarily exaggerating her symptoms.
b)    consciously guarding restriction of movement.
I think there may be some consciously [sic] guarding of the cervical spine flexion and extension and that she is afraid that this movement would aggravate her pain.
c)    displaying symptoms and examination findings inconsistent with the claimed condition,
In the normal course of events, I would have expected her symptoms to be slowly improving rather than deteriorating as she claims.
d)    demonstrating a range of movement during your passive observation which were no [sic] replicated during clinical examination.
I think that Ms McAullay’s movements during the course of the discussion were rather more evident than they were during the clinical examination.
…”
The Relevant Legislation
The SRC Act relevantly provides as follows:
“ 36   Assessment of capability of undertaking rehabilitation program
(1)     Where an employee suffers an injury resulting in an incapacity for work or an impairment, the rehabilitation authority may at any time, and shall on the written request of the employee, arrange for the assessment of the employee’s capability of undertaking a rehabilitation program.
(2)     An assessment shall be made by:
(a)a legally qualified medical practitioner nominated by the rehabilitation authority;
(b)a suitably qualified person (other than a medical practitioner) nominated by the rehabilitation authority; or
(c)a panel comprising such legally qualified medical practitioners or other suitably qualified persons (or both) as are nominated by the rehabilitation authority.
(3)   The rehabilitation authority may require the employee to undergo an examination by the person or panel of persons making the assessment.
(4)   Where an employee refuses or fails, without reasonable excuse, to undergo an examination in accordance with a requirement, or in any way obstructs such an examination, the employee’s rights to compensation under this Act, and to institute or continue any proceedings under this Act in relation to compensation, are suspended until the examination takes place.
(5)   The relevant authority shall pay the cost of conducting any examination of an employee and is liable to pay to the employee an amount equal to the amount of the expenditure reasonably incurred by the employee in making a necessary journey in connection with the examination or remaining, for the purpose of the examination, at a place to which the employee has made a journey for that purpose.
(6)   In deciding questions arising under subsection (5), a relevant authority shall have regard to:
(a)the means of transport available to the employee for the journey;
(b)the route or routes by which the employee could have travelled; and
(c)the accommodation available to the employee.
(7)   Where an employee’s right to compensation is suspended under subsection (4), compensation is not payable in respect of the period of the suspension.
(8)   Where an examination is carried out, the person or persons who carried out the examination shall give to the rehabilitation authority a written assessment of the employee’s capability of undertaking a rehabilitation program, specifying, where appropriate, the kind of program which he or she is capable of undertaking and containing any other information relating to the provision of a rehabilitation program for the employee that the rehabilitation authority may require.
37Provision of rehabilitation programs
(1)   A rehabilitation authority may make a determination that an employee who has suffered an injury resulting in an incapacity for work or an impairment should undertake a rehabilitation program.
(2)   If a rehabilitation authority makes a determination under subsection (1), the authority may:
(a) provide a rehabilitation program for the employee itself; or
(b)make arrangements with an approved program provider for that provider to provide a rehabilitation program for the employee.
Note: …
(2A)A determination under subsection (1) is not a legislative instrument.
(3)   In making a determination under subsection (1), a rehabilitation authority shall have regard to:
(a)    any written assessment given under subsection 36(8);
(b)any reduction in the future liability to pay compensation if the program is undertaken;
(c)    the cost of the program;
(d)any improvement in the employee’s opportunity to be employed after completing the program;
(e)the likely psychological effect on the employee of not providing the program;
(f)     the employee’s attitude to the program;
(g)the relative merits of any alternative and appropriate rehabilitation program; and
(h)    any other relevant matter.
(4)   The cost of any rehabilitation program provided for an employee under this section shall be paid by the relevant authority in relation to that employee.
(5)   Where an employee is undertaking a rehabilitation program under this section, compensation is not payable to the employee under section 19 or 31 but:
(a)if the employee is undertaking a full-time program – compensation is payable to the person of an amount per week equal to the amount per week of the compensation that would, but for this subsection, have been payable under section 19 if the incapacity referred to in that section had continued throughout the period of the program; or
(b)if the employee is undertaking a part-time program – compensation is payable to the employee of such amount per week as the relevant authority determines, being an amount not less than the amount per week of the compensation that, but for this subsection, would have been payable to the employee under this Act and not greater than the amount per week of the compensation that would have been payable under paragraph (a) if the employee had been undertaking a full-time program.
(6)   An employee who is entitled to receive compensation under subsection (5) during a period is not entitled to receive rehabilitation allowance under the Social Security Act 1991 during that period.
(7)   Where an employee refuses or fails, without reasonable excuse, to undertake a rehabilitation program provided for the employee under this section, the employee’s rights to compensation under this Act, and to institute or continue any proceedings under this Act in relation to compensation, are suspended until the employee begins to undertake the program.
(8)   Where an employee’s right to compensation is suspended under subsection (7), compensation is not payable in respect of the period of the suspension.”
The phrase “approved program provider” is defined in s 4(1) of the SRC Act to mean:
“ a person or body approved under section 34F or 34H as a rehabilitation program provider and includes a person or body so approved whose approval is renewed under section 34L.”
The Issue
The parties presented their respective cases on the basis that the substantive issue for the Tribunal’s determination is whether the applicant, having regard to her accepted compensable neck injury, is fit to undertake a rehabilitation program.
The applicant submitted that, by reason of her accepted compensable neck injury, she is not fit to undertake a rehabilitation program. The applicant did not seek to rely on any psychiatric or psychological condition in support of her contention that she is not fit to undertake a rehabilitation program.
The respondent, on the other hand, submitted that the applicant’s accepted compensable neck injury does not render her unfit to undertake a rehabilitation program.
The Tribunal notes, however, that, in terms of s 37(1) of the SRC Act, the substantive issue for its determination is whether the applicant “should undertake a rehabilitation program”. In accordance with the parties’ presentation of their cases, and their expectations, the Tribunal will determine that issue having regard to the effects of the applicant’s accepted compensable neck injury alone and without regard to the effects of any psychiatric or psychological condition from which the applicant may be suffering.
Analysis
The decision under review in this proceeding is a decision, in effect, that the applicant should undertake an appropriate rehabilitation program to be developed and provided by an approved program provider “with the goal of achieving a return to pre-injury hours and duties”. Although a rehabilitation program was subsequently developed by an approved program provider and is in evidence (part of Exhibit R2), that rehabilitation program does not form part of the decision under review in this proceeding.
Accordingly, the matter for the Tribunal’s determination, pursuant to s 37(1) of the SRC Act, is not whether the applicant should undertake a particular rehabilitation program that has been developed by an approved program provider, but rather whether the applicant should undertake a rehabilitation program to be developed by an approved program provider.
Pursuant to s 37(3) of the SRC Act, the Tribunal, in making a determination pursuant to s 37(1), is obliged to have regard to the matters set out in paras (a)–(h) of s 37(3). Most of those matters (see paras (b)–(g)), however, appear (by the use of the definite article “the”) to presuppose that a particular rehabilitation program has been developed and refer to matters associated with that program. In the present case – where, as previously mentioned, a developed program is not part of the decision under review by the Tribunal – the matters referred to in paras (b)–(g) of s 37(3) of the SRC Act are, in the Tribunal’s opinion, not applicable.
Accordingly, the Tribunal, pursuant to s 37(3) of the SRC Act, will have regard to:
·“any written assessment given under subsection 36(8)” (para (a)); and
·“any other relevant matter” (para (h)).
The only relevant “written assessment given under subsection 36(8)”, to which it is appropriate for the Tribunal to have regard, is the “Section 36 Rehabilitation Assessment” report of Dr Silbert, dated 28 June 2012, set out in paragraph 22 above. Other relevant matters to which the Tribunal will have regard include:
·the applicant’s evidence (set out in paragraphs 8–9 above);
·the reports and oral evidence of Dr Harper (set out in paragraphs 11–20 above);
·the “Fitness for Duty Assessment” report of Dr Silbert, dated 28 June 2012 (set out in paragraph 23 above), Dr Silbert’s report of 12 February 2013 (set out in paragraph 24 above), and his oral evidence (referred to in paragraphs 25–28 above);
·Dr Wyatt’s report of 17 September 2013 and her oral evidence (set out in paragraphs 30–35 above); and
·the other medical evidence referred to in paragraphs 36–40 above.
The Tribunal notes the applicant’s evidence that, at the present time, she does not think that she would be able to complete a work rehabilitation program by reason of “the pain relating to [her] neck injury” (see para 24 of her supplementary statement of 21 January 2014 set out in paragraph 9 above). In the Tribunal’s opinion, however, the question whether the applicant is physically capable of undertaking a rehabilitation program, having regard to her neck injury, is a matter to be determined by the Tribunal primarily on the basis of the relevant medical evidence before it.
The evidence of the medical witnesses regarding the applicant’s physical capability of undertaking a rehabilitation program is not consistent. Dr Harper has opined that the applicant, by reason of her neck injury and resulting neck pain, is “totally incapacitated for all forms of gainful employment” and, furthermore, is not fit for rehabilitation and will continue to be unfit for rehabilitation until she receives sufficient and proper treatment to enable her adequately to manage her neck pain. Dr Silbert and Dr Wyatt, however, have opined that the applicant, notwithstanding her neck injury and resulting neck pain, is physically capable of undertaking a rehabilitation program and, indeed, is physically capable of undertaking her pre-injury employment duties on a full-time basis.
Although Dr Barr, the applicant’s longstanding treating general practitioner, was not called as a witness, the Tribunal accepts, having regard to the documentary evidence before it, that his opinion is that the applicant is “completely incapable of working” (see Exhibit R1, ST82, p 223). The Tribunal notes, however, that, in workers’ compensation medical certificates issued by Dr Barr from June 2012, he has referred not only to the applicant’s chronic neck pain but also to her stress/anxiety. The Tribunal notes, furthermore, that, although there is documentary evidence that on 16 January 2014 Dr Barr indicated that the applicant had “no work capacity” and agreed that “vocational rehabilitation should cease” and not be resumed until her “symptoms have stabilised” (part of Exhibit R2 – see paragraph 38 above), there is no documentary evidence before the Tribunal which clearly indicates that Dr Barr is of the opinion that the applicant is incapable of undertaking a rehabilitation program by reason of her neck injury alone.
The opinion of Dr Silbert and of Dr Wyatt, to the effect that the applicant’s neck injury and resulting neck pain do not render her incapable of undertaking a rehabilitation program and, indeed, her full pre-injury employment duties, is largely based on the “informal assessment” of the applicant’s voluntary or spontaneous neck movements which each of them made upon observing the applicant throughout each consultation. According to their reports and evidence, Dr Silbert and Dr Wyatt each noted a significant discrepancy between the applicant’s ranges of neck movements on formal examination and her voluntary neck movements throughout the rest of the consultation – the ranges of neck movements being significantly less on formal examination than on informal observation. In short, Dr Silbert and Dr Wyatt both were of the opinion that the ranges of the applicant’s voluntary or spontaneous neck movements during the bulk of the consultation (other than the formal examination) were such as to indicate that her neck injury and resulting neck pain did not render her incapable of undertaking a rehabilitation program.

Dr Harper, on the other hand, based his opinion, that the applicant is “totally incapacitated for all forms of gainful employment” and is not fit for rehabilitation, on the applicant’s complaints of neck pain and her “very limited” ranges of neck movements as demonstrated by her on his physical examination of her. Dr Harper made no reference to informal examination or assessment of the applicant in his reports and, in his oral evidence, he said that he regarded informal examination as “totally unreliable”.
The Tribunal prefers the evidence of Dr Silbert and Dr Wyatt to that of Dr Harper. The Tribunal accepts the evidence of Dr Silbert regarding the utilisation of “informal assessment” and it accepts that informal examination or assessment is an appropriate process which an examining medical practitioner may utilise for the purpose of objectively testing the validity of an examinee’s subjective musculoskeletal complaints, including (as in the present case) subjective complaints of neck pain associated with movements of the neck. In the Tribunal’s opinion, it is appropriate to attach great weight to the opinions of Dr Silbert and Dr Wyatt regarding the applicant’s physical capacity to undertake a rehabilitation program, which opinions were based on both a formal examination and an informal examination of the applicant. The Tribunal, on the other hand, attaches considerably less weight to the opinion of Dr Harper regarding the applicant’s physical capacity to undertake a rehabilitation program, which opinion was based on the applicant’s subjective complaints of neck pain and his (formal) physical examination of her.
As regards the opinion of Dr Barr regarding the applicant’s physical capacity to undertake a rehabilitation program, the Tribunal, having regard to the abovementioned documentary evidence before it, and in the absence of any oral evidence from Dr Barr, is uncertain whether he would go so far as to opine that the applicant is incapable of undertaking a rehabilitation program by reason of her neck injury and resulting neck pain alone.
The Tribunal does not accept Dr Harper’s somewhat extreme opinion to the effect that the applicant’s neck injury and resulting neck pain render her “totally incapacitated for all forms of gainful employment” and totally unfit for any rehabilitation process. The Tribunal instead accepts the evidence of Dr Silbert and Dr Wyatt and, on the basis of that evidence, it finds that the applicant, notwithstanding her neck injury and resulting neck pain, is physically capable of undertaking a rehabilitation program.
Having found that the applicant is physically capable of undertaking a rehabilitation program, the Tribunal, pursuant to s 37(1) of the SRC Act, is ultimately required to determine whether the applicant “should undertake a rehabilitation program”.
The Tribunal notes Dr Wyatt’s opinion (referred to in paragraph 35 above) that, having regard to the applicant’s “general presentation”, including her personality and psychological/psychiatric condition, it would not be appropriate to require her to undertake a rehabilitation program. The Tribunal, however, in accordance with the parties’ presentation of their cases and their expectations, will (as previously mentioned) determine whether the applicant “should undertake a rehabilitation program” (within the meaning of s 37(1) of the SRC Act) having regard to the effects of her accepted compensable neck injury alone and without regard to the effects of any psychiatric or psychological condition from which she may be suffering.
In the Tribunal’s opinion, having regard to the effects of the applicant’s accepted compensable neck injury alone and to the Tribunal’s earlier finding that the applicant, notwithstanding that neck injury and resulting neck pain, is physically capable of undertaking a rehabilitation program, there is no good reason to determine that she should not undertake an appropriate rehabilitation program to be developed and provided by an “approved program provider” within the meaning of s 37(2)(b) of the SRC Act. By “an appropriate rehabilitation program” the Tribunal has in mind a rehabilitation program to be developed in consultation with, not only the applicant’s treating general practitioner, but also her treating pain management specialist, and to be provided in a location removed from the workplace where she suffered the relevant neck injury on 15 July 2011 and where she apparently experienced an adverse relationship with her manager. In the Tribunal’s opinion, consideration should be given, for the purpose of developing an appropriate rehabilitation program for the applicant, to arranging for her to undergo a neuropsychological assessment, as suggested by both Dr Silbert (see paragraph 23 above) and Dr Wyatt (see paragraph 35 above). In the Tribunal’s opinion, a rehabilitation program developed and provided as suggested above would be more likely to be successful, or at least to be a more productive exercise, than the rehabilitation programs in which the applicant has unsuccessfully participated to date.
Conclusion
The Tribunal concludes that the applicant should undertake an appropriate rehabilitation program to be developed and provided by an “approved program provider” within the meaning of s 37(2)(b) of the SRC Act, and it so determines pursuant to s 37(1) of the SRC Act.
Decision
For the above reasons, the decision under review is affirmed.

I certify that the preceding 64 (sixty -four) paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop

....................[sgd D Brodie]...........................................
Administrative Assistant
Dated 26 March 2014

Dates of hearing 29, 30, 31 January 2014

Counsel for the Applicant Mr P Lafferty

Solicitors for the Applicant Butcher Paull & Calder

Counsel for the Respondent Mr J Lenczner

Solicitors for the Respondent Australian Government Solicitor

Division	General Administrative Division
File Number	2013/1084
Re	Colleen McAullay
APPLICANT
And	Comcare
RESPONDENT

Tribunal	Deputy President S D Hotop
Date	26 March 2014
Place	Perth

Dates of hearing	29, 30, 31 January 2014
Counsel for the Applicant	Mr P Lafferty
Solicitors for the Applicant	Butcher Paull & Calder
Counsel for the Respondent	Mr J Lenczner
Solicitors for the Respondent	Australian Government Solicitor