Contreras and Australian Postal Corporation (Compensation)
[2023] AATA 24
•17 January 2023
Contreras and Australian Postal Corporation (Compensation) [2023] AATA 24 (17 January 2023)
Division:GENERAL DIVISION
File Numbers: 2018/4734, 2018/4736, 2021/1083, 2021/1084, 2021/1085
Re:Julio Contreras
APPLICANT
AndAustralian Postal Corporation
RESPONDENT
Decision
Tribunal:Mrs J C Kelly, Senior Member
Date:17 January 2023
Place:Sydney
Each of the decisions the subject of review is affirmed.
..................................[sgd]......................................
Mrs J C Kelly, Senior Member
Catchwords
COMPENSATION – whether Respondent has present liability to pay compensation for the Applicant’s medical conditions – initially accepted liability for bilateral lateral epicondylitis – whether the bilateral lateral epicondylitis caused chronic pain syndrome in the period specified and contributed to a significant degree to major depression – whether major depression was caused by the claims process – whether the Respondent has present liability to pay compensation for bilateral lateral epicondylitis, C5-6 disc bulge and canal stenosis with cord compression, and bilateral shoulder pain -- reviewable decisions affirmed
Legislation
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Cases
Kirkpatrick v The Commonwealth [1985] FCA 440; [1985] 9 FCR 36
Renouf v Comcare [2019] AATA 1055Swindale v Comcare [2019] AATA 2426
REASONS FOR DECISION
Mrs J C Kelly, Senior Member
17 January 2023
Introduction
The Applicant, Mr Contreras, was employed as a mail sorter by the Respondent, the Australian Postal Corporation, from 7 September 2001. After completing night shift on 24 February 2016, he went to see Dr Dharmaratnam, his General Practitioner (GP). He has not worked since, apart from a brief period in 2016 when he attempted modified duties on reduced hours.
He was born in Chile in September 1956 and arrived in Australia in 1987. He had a couple of jobs and a period of unemployment before starting work for the Respondent. He and his wife were assisted by an interpreter during the hearing.
The relevant legislation is the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act). Section 5B provides:
(1) In this Act:
disease means:
(a) an ailment suffered by an employee; or
(b) an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.
(2) In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:
(a)the duration of the employment;
(b)the nature of, and particular tasks involved in, the employment;
(c)any predisposition of the employee to the ailment or aggravation;
(d)any activities of the employee not related to the employment;
(e)any other matters affecting the employee’s health.
This subsection does not limit the matters that may be taken into account.
(3) In this Act:
significant degree means a degree that is substantially more than material.
The proceedings
There are five proceedings before the Tribunal: 2018/4734, 2018/4736, 2021/1083, 2021/1084, and 2021/1085.
Proceedings 2018/4734 arise from the Applicant’s claim for compensation lodged on 29 February 2016 for pain in the left wrist while sorting in the large letter bullring. On 6 April 2016, liability was accepted for bilateral lateral epicondylitis based on the report of Associate Professor McGill, consultant rheumatologist, dated 21 March 2016. However, on 15 June 2017, the Respondent denied present liability to pay compensation for that condition based on the report to the Respondent of Dr Anderson, consultant occupational physician, dated 19 April 2017. That determination was affirmed on 9 July 2018 and review was then sought in the Tribunal.
Proceedings 2018/4736 relate to the Applicant’s claim for compensation in respect of anxiety. It is not clear when the claim was made, however, on 7 December 2017 the Respondent denied liability for ‘your recently submitted claim for compensation in respect of “anxiety” allegedly sustained as a sequelae to your accepted “bilateral epicondylitis”’. The determination was affirmed on 10 July 2018 and the Applicant applied for review in the Tribunal.
The 2021 proceedings are in respect of three claims made on 3 December 2019 for C5-6 disc bulge and canal stenosis with cord compression (2021/1083), bilateral shoulder pain (2021/1084), and chronic pain syndrome (2021/1085). Liability was denied in respect of all the claims on 24 December 2020 and affirmed on 4 February 2021. The Applicant applied to the Tribunal for review. Mr Grey, counsel for the Applicant, explained that the claims were made to avoid any jurisdictional issue. Of the three, the most important is the claim for chronic pain syndrome which is the principal basis on which the Applicant says the matter should be decided.
The Applicant only relied on conduct in the workplace by supervisors or other staff members which caused him distress, that occurred after he complained of physical symptoms, that is around 23/24 February 2016. I made a direction to that effect on 28 April 2022.
Issues
The principal factual issue is whether the bilateral lateral epicondylitis resulted in chronic pain over a period of one to three years before 24 February 2016. The Applicant submits that it did and the Respondent submitted that it did not.
If it did, the Applicant argues that it contributed to a significant degree to the Applicant’s chronic major depression which in turn amplified his pain which in turn contributed further to his chronic major depression.
The Respondent argued that the chronic major depression was caused by the claims process and cannot give rise to a compensable condition: Kirkpatrick v The Commonwealth which has been followed in a number of cases in the Tribunal.[1]
[1] Kirkpatrick v The Commonwealth [1985] FCA 440; [1985] 9 FCR 36; Swindale v Comcare [2019] AATA 2426, [38] and Renouf v Comcare [2019] AATA 1055, [148].
A secondary argument put by the Respondent was that there are other non-compensable causes of pain.
The Applicant’s duties and history of onset of symptoms
The Applicant wrote the following in his statement dated 26 August 2019.
He sorted small and large envelopes/letters and parcels. He worked five days a week, for approximately 38.5 hours. On a typical day he would start at 11pm and sort small letters while in a seated position until 2am. He had a tea break for 10 minutes at midnight and a break from 2am until 2:30am when he sorted large letters and parcels while standing. He was required to be seated at a desk and/or stand in one position for prolonged periods of time up to two hours and to do repetitive movements with both arms. He sorted approximately 38-40 letters per minute.
He also worked overtime one to three hours when required.
The Applicant claimed that he loved his job with the Respondent and never had an issue until February 2016, apart from an incident in 2013 when he felt that he had been bullied by his team leader. He also claimed that he did not have any psychological symptoms until February 2016. He described the development of symptoms in his right forearm sometime in late 2014 or early 2015. He started to use his left arm to rest his right arm which resulted in symptoms developing in his left arm during the course of 2015 and early 2016 until in February 2016 he felt the same symptoms in both forearms.
The evidence
The earliest clinical record for the Applicant from subpoenaed material from several general medical practices was 29 November 2013. There is no medical record before 24 February 2016 which mentioned the Applicant reporting work-related pain in either wrist or arm. There were occasions when he was unable to go to work because of illness / got a medical certificate: 29 November 2013, 26 March 2014, 28 May 2014, 25 August 2014, 17 December 2014, 11 September 2015, and 15 September 2015
The Applicant did visit a doctor complaining of pain in other parts of his body on a number of occasions. On 26 March 2014, the Applicant reported that he had a sore throat, headache, body aches and pains, shoulder pains, mild fever and a cold. On 28 May 2014, the Applicant was experiencing neck pain, especially while trying to look back. On 17 November 2014, he had back pain which started suddenly while he was lawn mowing. On 11 September 2015, he had a sore back and aches and pains all over, although the reason for the visit was an unrelated condition. On 15 September 2015, he felt tired, had body aches, sore arms and shoulder, and musculoskeletal pains, having helped his son move house two days ago. On 12 February 2016, he had mild pain in the groin.
The first contemporaneous record of work-related injury to the arms or wrists is the clinical note made by the GP on 24 February 2016. While sorting mail the Applicant ‘noticed some soreness in his left wrist’. The GP recorded:
0/E: Tenderness in lat epicondyle
ROM restricted in wrist
Tenderness + in dorsal surface of the wrist
The diagnosis was lateral epicondylitis. An imaging request was printed for ultrasound to left elbow/left wrist.
The GP and the Applicant completed a WorkCover NSW – certificate of capacity on the same day. The diagnosis was lateral epicondylitis, wrist injury. Only the left wrist was referred to.
A surgery consultation on 26 February 2016 appeared to refer only to one elbow/wrist.
The Applicant completed a Claim for Rehabilitation and Compensation on 29 February 2016 for pain in his left wrist. He claimed that he first noticed it at 3am on 23 February 2016. His manager completed his part of the form on 1 March 2016. The form was stamped ‘RECEIVED 07 MAR 2016 COMPENSATION’.
Also on 1 March 2016, the manager prepared a supplementary statement.
Before going to that statement, I note that there seemed to be some confusion about dates because the Applicant was working night shift. I understand that the manager refers to the date a shift finished.
The manager did not support the Applicant’s compensation claim and set out the following. The Applicant did not report any injury on 23 February 2016 and stayed back on overtime to sort large letters, which is the same work he claims gave him his injury. At 12:00am, the Applicant said that his left wrist was hurting and that he could not lift the large letter trays. He said that he felt pain in his left wrist when he woke up on 23 February 2016. The manager moved the Applicant to sorting small letters, and at 6:00am the Applicant told the manager he would see his doctor that morning.
I understand the manager’s version to be that the Applicant reported that he had pain when he woke up after sleeping on 23 February 2016, after his shift. He reported the pain at midnight of the following shift which ended on 24 February 2016.
On 3 March 2016, the GP’s clinical note is ‘Rt Lat Epicondylitis’. An imaging request was printed for an ultrasound of the right elbow. The reason for visit was ‘Lateral epicondylitis’. No examination or symptoms were recorded.
The clinical note of 4 March 2016 recorded that the Applicant had not got a claim number from his work and the doctor contacted the Applicant’s manager who said that the claim number will take three to four weeks to be obtained. The doctor also asked the manager for the insurance company details. The manager said he would give them to the Applicant on Monday. The doctor noted for the first time that the Applicant was ‘apparently’ being bullied at the workplace by the ‘manager who has been calling him names at this point in time’.
On 7 March 2016, the GP summarised the reason for the visit as ‘workplace harrassment’ (sic). The Applicant was being bullied by his manager. From his cross-examination, it seems that the Applicant had received the manager’s supplementary statement before this visit to his GP.
On 9 March 2016 the GP noted that the Applicant had been given a claim number. The Applicant’s wife had spoken to the manager and was told that the Applicant needed to return to work for light duties and use Medicare for physiotherapy services. The Applicant ‘continues’ to have pain in both elbows. His manager refuses to believe he was injured at work. Despite working for the Respondent for 16 years he is treated shabbily and feels insulted because he is not believed. ‘This pain in his elbows has been ongoing and he has tried to manage it conservatively’.
The Applicant had ultrasound-guided injections into his left and right elbows on 14 and 15 March 2016. Both reports recorded that the Applicant was pain-free immediately post-procedure, having had a pre-test pain score of 7/10 and 8/10 respectively.
Associate Professor McGill, consultant rheumatologist, was the first doctor to examine the Applicant and provide a comprehensive report. He saw the Applicant and reported on 21 March 2016 at the Respondent’s request. Liability was accepted on 6 April 2016 based on Associate Professor McGill’s report.
Associate Professor McGill recorded the following. The Applicant worked full hours (37.5 per week) as a mail sorter at a delivery centre. The vast majority of his work involved sorting either, small letters while seated on a swivel chair with modules of pigeonholes around him, or large letters while standing with the frames in a curve around him. In previous years his work sometimes involved moving unit load devices (ULDs) on dollies. He last worked on Tuesday 23 February 2016 and was due to see his GP within the next couple of days to determine when a return to work may be appropriate.
Given the challenge to the histories given by the Applicant and his wife, it is useful to quote the Applicant’s first recounting of his history to Associate Professor McGill.
History of the Major Complaint
In response to my request to describe his problem from the very beginning, he explained that when he first started with Australia Post he performed V sort sorting. He was then moved to other types of sorting. He emphasized that he did "a lot of work". He is right handed and does most of his sorting with the right hand.
He first experienced pain approximately three years ago. The pain was over the dorsum of the right forearm. The area felt hot. The symptoms came on gradually and there was no change in his work or non-work activities in the preceding months or weeks. He tried using a liniment. The pain would feel worse at work and improve at home. He reported the symptoms to his friend (but not as far as he could recall to any doctor or his work). He started using his left hand to sort some of the mail. He was slower when doing so and he felt that he and others were pushed at work to sort faster. He repeatedly emphasized that he has always given 100% to his work and has never had time off on sick leave even when he has felt ill. He noted that other employees did not work as quickly as he did.
He thought he first reported his symptoms to his current general practitioner Dr Manoj Dharmaratnan in 2016. I checked as to the name of his previous general practitioner and although he was unsure of the spelling of her surname, he thought it was Dr Evelyn Khoon. She worked at more than one medical practice in his area before moving to Wollongong. He thought that he reported his symptoms to her but it was not clear from his comments what, if any, intervention occurred.
Over the last few years, he has used both hands when sorting mail. The rapidity of the recent deterioration was unclear but he explained with considerable emotion that on 23 February 2016 "I collapsed" and he was unable to continue any work due to the pain in both forearms. Since then he has continued to experience symptoms in both forearms. He recently had injections initially of the left lateral elbow region and then the right lateral elbow region. Although he initially thought the injections occurred three days ago he subsequently thought they occurred about one week ago. He felt the injections made no difference, I returned to that question on two further occasions and he confirmed that there had been no difference.
Current Symptoms
His sleep has been poor and he has felt depressed, something which he felt was secondary to his forearm symptoms.
With respect to treatment he has not been provided with any tennis elbow or similar support although he mentioned that there are two or three other people at work with the same symptoms and one of his colleagues had offered him some kind of bandage. He has been using a very small amount of Diclofenac (at most 50mg daily). He recently had a cortisone injection of each elbow.
On several occasions he expressed the view in relation to his workplace that "they don't care".
Associate Professor McGill wrote that the Applicant appeared emotionally upset and freely acknowledged anger and unhappiness which he directed to the workforce at Australia Post. Having taken a history from the Applicant, examined him, considered investigations and other information provided, Associate Professor McGill set out the following summary:
This 59 year old man reported a history of mid forearm pain, initially on the right and then bilaterally dating back two or three years. He emphasized that he had always worked very hard for Australia Post and had done a lot of work. There was no specific event. He reported that in the one month period since he stopped work there has been no change in his symptoms and no change since the injections of his lateral epicondyle regions approximately one week ago.
On examination he reported tenderness in the mid dorsal forearms bilaterally but no tenderness at the epicondyles and provocative tests for epicondylitis were negative. From the history and the manner of his speaking, it appeared clear that psychological and interpersonal relationship factors have played a substantial role.
The doctor answered a schedule of questions the Respondent had asked:
I think it is likely that lateral epicondylitis has played a role in the symptoms he experienced.
I think his bilateral lateral epicondylitis is work related.
The duration of the abnormalities at both common extensor tendons cannot be determined with precision although the presence of calcification within the right common extensor tendon origin indicates a process at least many months and probably years old.
The physical prognosis is good. Lateral epicondylitis (common extensor origin tendinopathy with or without tendon tear) has a good natural history with respect to resolution of most of the symptoms and an ability to resume most or all physical activities. The clinical signs today were very reassuring in regard to his lateral epicondylitis. The absence of any discomfort on resisted manoeuvres with the potential to irritate lateral epicondylitis and the absence of tenderness at the common extensor tendon origins would normally indicate a high likelihood of the person being able to resume full activities within the following three months. The important yellow flag in this circumstance is his perception that his workplace has been unsupportive and that he has been unreasonably pushed.
He is fit to return to mail sorting, initially with a 5kg lifting restriction for each hand. The use of a tennis elbow strap on both sides would be reasonable. Although he is currently using minimal Diclofenac, it would also be reasonable for him to use Diclofenac at least in the small dose of 50mg twice daily. As he has had peptic ulcer symptoms in the past, a proton pump inhibitor should also be used to minimise the risk of gastric or oesophageal irritation.
He is fit to return to full hours. Rotation of activities may be of assistance and thus initially I would suggest that he spend no more than two hours doing the same activity before changing to a different activity.
Support from a psychologist may be of assistance. I do not have expertise in psychological matters but as a clinician, it appeared to me that the perception by Mr Contreras that he has not been believed or has been unreasonably dealt with in regard to his work is substantially aggravating his response to what should be a minor physical problem.
The prognosis for the work related condition is good with respect to functional capacity and symptoms. The degenerative changes are permanent on ultrasound and MRI and I think there is nothing to be gained by further imaging. A single corticosteroid injection on each side was reasonable. Particularly noting the lack of pain on provocative manoeuvres and the lack of local tenderness, there is no role for further injection (corticosteroid, platelet rich plasma or other).
On 23 March 2016, the GP noted that the Applicant ‘continues to have pain’, has had the steroid injections for his elbows and seen Associate Professor McGill. He saw the GP again on 6 April 2016.
On 11 April 2016 the GP recorded that the Applicant ‘is wanting to try the work plan’ for suitable duties of four hours on three days. On 18 April 2016, the Applicant had started work and was finding it hard to cope with the pain. He was working with the rehabilitation person who told him to rest because the pain is not settling.
On 2 May 2016, the GP recorded the Applicant was continuing to have pain, which was disturbing his sleep, physiotherapy was not helpful. The pain was causing him a lot of stress and ‘He hfeels (sic) that he has to convince his work place he has an issue when he is struggling like this’.
Dr Kannangara, consultant physician – rheumatology and sports medicine, saw the Applicant at the request of the GP and reported on 24 June 2016:
...His symptoms are not specific but he talks about cervical pain, shoulder pain, upper arm pain and forearm pain... He said he had quite a few assessments and treatments including an injection and doesn't think that anything has helped. On detailed interrogation and examination there was no evidence of an inflammatory picture, but there was certainly evidence of anxiety and depression, which clouds the physical symptoms... When the upper limbs were examined both musculoskeletally and neurologically there was minimal tenderness over the lateral epicondyle area. There was no evidence of any muscle weakness at the wrist, the forearms, upper arms or the shoulders and rotator cuff tendons. There were certainly subjective symptoms and signs, but when asked to concentrate and do things properly he had no difficulty doing it.
He may have had mild lateral epicondylitis but the current situation is largely functional and if this cycle is not broken he will go into complications like disuse atrophy and...
Dr Ho, pain and rehabilitation specialist, initially saw the Applicant on six occasions at the request of the GP. The Respondent approved the treatment. His first report was dated 22 November 2016 and his last was dated 9 May 2017. The treatment ceased when the Respondent determined that there was no present liability for bilateral lateral epicondylitis on 15 June 2017. On 22 November 2016, Dr Ho obtained a ‘two year history of progressive bilateral elbow and shoulder pain’. The substance of Dr Ho’s reports is similar. The last report of 9 May 2017 included:
Pain Issues
1.Central sensitisation
2.Repetitive strain of common extensor origin of bilateral elbow
3.Medication sensitivity
4.Maladaptive coping
5.Adjustment disorder with anxiety and depression features
…
Julio's pain remains at status quo. He reports benefit from psychology which reduces the distress related to the pain. However, functionally there is still no significant improvement. He has maladaptive cognition with unrealistic expectation of how hydrotherapy will eliminate his pain. I have discussed the principal of pain management program with the focus of developing self-management strategies without relying on passive treatment or external modalities. I have reinforced the medication contract with him focussing on medication safety. I have discussed with him not to use Diclofenac daily for a long time due to it's side effect profile. We may consider pulsed radio frequency of the extensor tendon origin if he is refractory to treatment and not progressing functionally. He would benefit from ongoing pain psychology treatment.
Dr Anderson, consultant occupational physician, reported to the Respondent on 19 April 2017, having seen the Applicant on 3 April 2017. The doctor was unable to demonstrate bilateral epicondylitis or ‘realistically’ another diagnosable physical condition but did not think there was any conscious exaggeration. In Dr Anderson’s opinion, the Applicant’s main problem was the way he held himself with excessive muscular tension. It was very evident that he was psychologically in a severe state and needed a lot of mental health support. The Applicant said that he could drive his manual car for about half an hour but sometimes he had difficulty operating the gearstick. He complained of pain in his arms and shoulders. The Applicant had been referred for pain management under the direction of Dr Ho and reported that he had been told that he had developed chronic pain and had to learn to live with and manage it. In Dr Anderson’s opinion, the Applicant was not fit to return to work. He wrote:
He is emotionally and psychologically very labile and also holds himself with extraordinarily high muscle tension. If he was to return to work like this, it would be disastrous.
Mr O’Neill, clinical psychologist, wrote three reports to the Respondent. The first dated 23 May 2017 was a file review to consider whether the Applicant required psychological treatment in relation to his physical injury and/or whether an independent assessment was necessary. The Applicant had had six sessions of psychological treatment to address chronic pain, adjustment to injury, depression, and anxiety. Mr O’Neill recommended a further six sessions of focused structured cognitive behavioural therapy to address specific symptoms related to his distress, further develop his relaxation skills, promote independence and self-management of his pain, and a return to work focus.
Mr O’Neill saw the Applicant on 28 June 2017 and prepared a report dated 4 July 2017. His opinion was that the Applicant ‘likely has a Somatic Symptom Disorder with persistent pain of a moderate degree’. He considered that the Applicant was ‘very pain focused’ and there was ‘some voluntary guarding’. Mr O’Neill considered it difficult to determine whether the Applicant’s psychological disorder was substantially work-related in light of Dr Anderson’s report. He reported that the Applicant attributed his pain to the repetitive nature of his work, the diagnosis of bilateral epicondylitis, the subsequent management of pain and heightened sensitivity to it. There was significant distress associated with the pain symptoms. In Mr O’Neill’s opinion:
It is possible that these could be significantly work related. However, personality and psychosocial factors play a role in such cases.
While noting that the Applicant reported that he was totally unfit for work, Mr O’Neill wrote that he was capable of normal sitting and standing tolerances, had movement in his arms, and appeared to have normal memory and cognitive function. He suggested a functional assessment at the Applicant’s workplace to determine suitable duties that he could commence, such as simple administrative tasks where he could pace himself. Mr O’Neill suggested commencing the Applicant on five hours per day, three days per week, with an upgrade to normal working hours within a six to eight week period and could see no reason ‘if he paces himself, why he could not slowly upgrade to some form of preinjury duties’, subject to review of his hydrotherapy and antidepressant medication, over the next couple of months.
Mr O’Neill recommended another six to eight sessions of treatment with his current psychologist at the Pain Clinic, assisted by an interpreter for a couple of sessions, ‘(G)iven (the Applicant’s) level of catastrophising, difficulties engaging with muscle relaxation, and significant avoidance behaviour’.
The Applicant told Mr O’Neill that he had been experiencing soreness in both arms for approximately two years prior to injury, began to use his left arm when he had overuse of his right arm and when he told his manager, he was advised that was normal for his age and he should alternate between his arms. He continued to work until 23 February 2016 when his forearms became too sore to work. He told his manager he could not work and was given alternative duties at a desk for a brief period but he could not cope. His manager tried to convince him to remain at work. However, he went to the doctor.
In his report of 28 August 2017 report Mr O’Neill recommended that the six sessions he had previously recommended be undertaken. The Applicant was far more agitated than on the previous occasion and told Mr O’Neill that the assessment processes were stressful and he had not received any psychological treatment since his last review. Mr O’Neill repeated his previous diagnosis of Somatic Symptom Disorder and wrote that the ‘relatedness to original injury remains complicated’ given that various medical practitioners had indicated that bilateral epicondylitis had resolved. Mr O’Neill concluded:
Individuals can develop problems with Chronic Pain as a result of physical injuries despite there being a resolve to the physical symptoms.
He stood by his previous recommendations.
It seems from the determination dated 7 December 2017, that the Applicant submitted a claim for anxiety after Mr O’Neill’s 28 August 2017 report.
Associate Professor Champion examined the Applicant for the first time on 16 October 2018 at the request of the Applicant’s solicitors and prepared a comprehensive report dated 29 October 2018.
He recorded a detailed history up to the date of examination.
Relevantly and in summary, symptoms began in the early months of 2015. Pain was mainly in the right forearm from elbow to wrist and gradually extending up his arm to the top of his shoulder and then his neck on the right side. As his symptoms worsened, he reversed the action of his arms intermittently and eventually reached the stage of alternating the hand which held the letters and the hand/arm which inserted the letters into the boxes. Notwithstanding his modification of his work, his symptoms steadily worsened until February 2016. By then he was having considerable difficulty using his hands and upper limbs for such tasks as driving his car or doing anything much at home. He claimed he reported the symptoms to his supervisor but was met with ‘a highly sceptical reaction’. He ‘could barely hold anything’ and discussed it with a workmate who lent him a bandage to see if that helped. The friend and others had experienced upper limb disorders in the course of postal sorting and he became increasingly aware of the problem. The manager did not want him to attend a medical practitioner, so he struggled on with the stack of letters on his lap using his right hand more than left. His friend recommended that he made an incident report but that did not happen because the supervisor tried to reassure him that everything would be okay. He saw his own GP. Associate Professor Champion clarified that the symptoms in the left upper limb developed during 2015 after a period of more sustained use of that limb. By February 2016 both arms ‘were distressingly involved’, substantially interfering with his sleep. The Applicant told Associate Professor Champion that ‘his mental health was holding reasonably well until February 2016’.
Associate Professor Champion reviewed numerous medical and imaging reports and examined the Applicant. He critiqued Mr O’Neill’s reports which he said suggested a primary psychiatric disorder ‘whereas there is no such evidence’. Associate Professor Champion’s opinion was that the psychological symptoms ‘came relatively late in the evolution of the pain disorders, that is not significantly until February 2016 by which time the pain disorders had become prominent’. He wrote:
…The history which I recorded over several pages is highly illustrative and typical of the evolution of a chronic regional neck and arm pain disorder from repetitive work. There is no competing alternative. As the history made clear,… the psychological factors were secondary to the chronic work-related pain disorder. …Not being believed after deriving so much of his self-esteem from his work capability and output has clearly been distressing. He obviously persevered to a point of irreversible chronic pain, and… By the time he stopped work in February 2016, the irreversibility was such that the chronic regional pain disorder (bilateral cervicobrachial distribution) has continued more or less unabated to the present. There was no hiatus in the symptoms at any stage so it is the same condition now as it was in February 2016.
…There has been underlying pathology such as the extensor enthesopathy at the elbows, but given the widespread nature of the chronic pain disorder and related physical signs, it is difficult to evaluate the significance of the enthesitis/epicondylitis in the ongoing disorder. Much of the chronic pain is now accounted for by the neurobiological process of central sensitisation probably with other neurobiological processes that we cannot measure in clinical practice…
Associate Professor Robertson, consultant psychiatrist, examined the Applicant on 21 January 2019 at the request of the Applicant’s solicitors and prepared a report dated 22 January 2019. In his opinion, the Applicant presented with a chronic major depressive disorder occurring in the context of chronic pain arising from a presumed diagnosis of work-related bilateral epicondylitis. The Applicant’s depressive illness emerged in the course of bullying behaviour and in part as a response to pain, and has amplified his experience of pain. Associate Professor Robertson’s opinion as to the bullying behaviour relied on a history of bullying at work going back to at least 2004.
During examination-in-chief, Associate Professor Robertson was asked to remove the alleged bullying other than that occurring in connection with the claim for compensation for the purpose of his opinion.
In response to being asked about the role of the physical pain in either causing or amplifying the depressive illness, Associate Professor Robertson said:
It was a significant factor (indistinct) his depression. Chronic pain is apt to cause depression, particularly when it is associated with impairment of day-to-day function, whether it’s working, self-care, recreational activities. It creates a substantial loss experience. The experience of pain itself is depressing, and moreover there is a problematic relationship between chronic pain and depression that each amplifies the other for very complex reasons. They’re not a good combination ----
Associate Professor Robertson said that he and Dr Cocks concurred that there were two components to the origin of the Applicant’s depression: the pain he experienced and the adverse interactions with his employer in the context of that pain. Given the assumptions he was asked to make by Mr Grey, Associate Professor Robertson said he would weight his opinion of causation more consistently with Dr Cocks’s opinion.
During cross-examination by Mr Gollan, Associate Professor Robertson said that chronic pain is over a period of 12 months or more and therefore if the Applicant had only been experiencing pain for a month, and was experiencing a psychological condition within that month as suggested by Associate Professor McGill, it is more likely than not that his depression resided in his grievances with the employer. Mr Gollan submitted that Associate Professor Robertson was adhering to his earlier opinion despite the assumption Mr Grey had asked him to make.
Associate Professor Robertson agreed that in January 2019 when he saw the Applicant, he continued to present as someone with chronic anger, embitterment, demoralisation, preoccupied with the treatment by his employer and the unreasonable rejection of his claim and that caused Associate Professor Robertson to diagnose depression as a primary condition in the context of the treatment by his employer, as opposed to secondary to his epicondylitis, subject to the qualification that the pain experienced was exacerbated by chronic depression in the psychosocial context.
Dr Cocks, forensic psychiatrist, prepared a report dated 14 August 2019 at the request of the Respondent following a consultation with the Applicant on the same day with the assistance of an interpreter.
The Applicant stated that in the years prior to the claimed injury he started to develop some discomfort in his upper limbs which became functionally impairing in 2016. He developed pain, particularly in his left upper limb while sorting mail. In February 2016, it became unbearable. He described how his supervisor resisted his attempt to make a workers compensation claim and how his mood substantially deteriorated. From 2016, the Applicant reported an increasing emergence of functionally debilitating pain involving both his upper limbs, extending to his neck. Dr Cocks wrote:
In my opinion, from assessing Mr Contreras and reviewing the documentation provided, Mr Contreras’ depressive illness has emerged as a consequence of the manner in which he was treated at Australia Post. For 16 years Mr Contreras displayed an impressive work ethic. He devoted himself to the work, possibly to his detriment. He accumulated large amounts of sick leave and rarely took annual leave. He worked long hours including overtime. Despite this, when Mr Contreras’ presented with physical health complaints, support from his supervisor was not provided. This is reflected in General Practice medical records. Mr Contreras perceived that his physical health symptoms were dismissed and this was very confronting for him, particularly given Mr Contreras’ had commitment to his work as an Australia Post mail sorter over his 16 years of employment. I suspect that the lack of support he was provided within the workplace exacerbated his pain which further compromised his capacity to appropriately engage in a return to work programme. This unfortunately has resulted in Mr Contreras losing a sense of his role and identity as a provider for his family. This had a profound impact upon his sense of self and identity. This, in my opinion, underlies the development of a severe depressive illness suffered by Mr Contreras.
Again, Mr Grey sought to have Dr Cocks address the causal connection between the epicondylitis and the major depressive disorder, as distinct from the causal connection between the bullying at work and the major depressive disorder. When asked about the reports of Associate Professor Champion and Dr Ho about issues of central sensitisation, Dr Cocks agreed that if their opinions were correct, that would have affected the Applicant’s depression.
Mr Grey submitted that both Associate Professor Robertson and Dr Cocks agreed that the Applicant’s pain was a cause of depression which in turn amplified his pain and that the contribution was significant.
Mr Gollan submitted that the opinion of both psychiatrists was that the major depression was a primary diagnosis and was not secondary to epicondylitis. The major depression is not compensable because it arose as a result of a compensation process.
Associate Professor McGill prepared a report dated 21 August 2019. He had seen the Applicant on the same day. In summary, in his opinion, there was no current physical upper limb condition and the objective findings indicated that the Applicant was continuing to use his upper limbs in a manner that allowed persistence of callus in the palms and good muscle bulk in both upper limbs with no evidence of disuse. There was evidence of non-organic factors, his behaviour during examination not being explicable on a physical basis.
On 20 November 2019, Dr Kinzel, orthopaedic surgeon, wrote to the GP having reviewed the Applicant that day following an MRI scan of his cervical spine. She reported that it showed severe disc bulging at the level of C5/6 with impingement and canal stenosis at the same level, in keeping with his clinical presentation. She advised a spinal review and said that the Applicant will also require surgery to his shoulder but there would be a ‘gross amount of overlapping symptoms if his cervical spine is not addressed prior to shoulder surgery’. She referred the Applicant to Dr Hsu. The Applicant ‘will continue trying to get these conditions approved by his workers’ compensation’. In her opinion, his shoulder and disc bulging in the cervical spine were likely due to the repetitive movement he had to perform when working in the mail sorting facility.
On 16 January 2020, Dr Kam, neurosurgeon, wrote a report to the GP. Dr Kam referred to an MRI that showed severe foraminal stenosis involving the right C5/6 level. The only surgery he could offer the Applicant was an anterior cervical discectomy and fusion of the C5/6 level to address the marked foraminal stenosis at that right C5/6 level which would potentially alleviate symptoms going down his right upper extremity in the C6 distribution. He placed the Applicant on a waiting list.
Associate Professor Fearnside, neurological surgeon, prepared a comprehensive report dated 21 May 2020 at the request of the Applicant’s solicitors, having seen the Applicant on the same day. He felt that the Applicant had had bilateral lateral epicondylitis which had continued for a longer period than would normally be anticipated, and noting that the Applicant had not worked since mid-2016, ‘anticipated’ that there would be improvement or resolution ‘over this time’. He observed that the physical signs continued on the background of a chronic pain syndrome and more likely than not, psychological factors were amplifying the Applicant’s pain experience. With respect to his area of expertise, cervical spondylosis, maximal at C5/6, cervical spine, it was difficult to relate the cervical spine symptoms to the Applicant’s work with the Respondent.
Associate Professor Champion prepared a second comprehensive report dated 26 November 2021, after seeing the Applicant on 23 November 2021. He had previously seen the Applicant on one occasion. He summarised the position he had previously expressed in reports dated 29 October 2018, 24 November 2018 and 8 April 2019 as follows.
I assessed him as having work-related chronic regional neck/arm pain disorders. That diagnostic assessment was made before the updating of the International Classification of Diseases Pain Terminology ICD-II, so I shall modify the terminology in the conclusions to this report.
He had previously expressed the opinion that he could not see the Applicant being able to return to work and that his mental health was greatly impaired.
Associate Professor Champion observed that the Applicant was more wretched with overt distress, despair, and overtly defeated demeanour than three years before when he saw him.
Associate Professor Champion addressed each of the five conditions the subject of these proceedings and concluded in each case that while there must be some additional non-work causal influences in each, ‘the overwhelming causal influence’ has been the nature and conditions of employment with the Respondent.
With respect to bilateral lateral epicondylitis, Associate Professor Champion said that it was certainly prominent early in the history and is continuing. It had contributed importantly to the Applicant’s chronic regional pain disorders in the upper limbs. ‘It is difficult to assess how clinically important in isolation this continues to be because of the widespread deep hyperalgesic state of his upper limbs’.
As psychological conditions are outside Associate Professor Champion’s area of expertise, I do not refer to his opinions on anxiety and major depressive disorder.
Apart from causation, his comments about C5/6 disc bulge and canal stenosis with cord compression do not add to the previous expert opinions on the condition.
Associate Professor Champion wrote that in current terminology, the Applicant’s major disorder is a chronic secondary musculoskeletal pain syndrome. It is secondary to the nature and conditions of employment and underlying pathology as reported in imaging.
In respect of bilateral shoulder pain, Associate Professor Champion’s opinion was that the right shoulder chronic pain disorder is the dominant symptom and a major component of the overarching chronic pain syndrome.
In Associate Professor Champion’s opinion, the Applicant was unfit for work at that time and in the foreseeable future.
Associate Professor Champion referred to a number of articles about chronic pain which were provided to the Tribunal.
Dr Ho prepared a medico-legal report dated 24 December 2021 which was contentious because he was not available for cross-examination. I admitted it subject to weight. He assessed the Applicant on 2 December 2021 and had previously examined him on 24 October 2019. In summary, Dr Ho maintained his diagnosis of central sensitisation precipitated by bilateral epicondylitis which was work-related. He noted the cervical spondylosis and right C5/6 foraminal severe stenosis and wrote ‘but the overall clinical picture is superseded by the central sensitisation process’.
Associate Professor McGill saw the Applicant for a third time on 21 March 2022. On the three occasions he had seen the Applicant, the findings had not been in keeping with lateral epicondylitis. ‘Behaviour not explicable on the basis of physical disease has been present and recorded repeatedly since 2016’. He noted the degenerative change in the cervical spine and lower limb abnormalities which he thought were more likely due to cervical spine disease than to other causes, which he felt warranted reassessment by a neurologist.
Associate Professor McGill confirmed that it was probable that the ultrasound abnormalities at the elbows were influenced by the Applicant’s work for the Respondent. Although when he saw the Applicant in March 2016, he did not have clinical evidence of lateral epicondylitis, Associate Professor McGill thought it was moderately likely that he had previously had lateral epicondylitis. He found it difficult to believe that the Applicant’s subsequent psychological problems arose from the lateral epicondylitis. He agreed with Associate Professor Fearnside that the Applicant’s degenerative cervical spine disease and any cervical nerve root compression related symptoms were not related to his work with the Respondent. There was no current physical condition related to his employment with the Respondent.
Associate Professor McGill addressed Dr Ho’s opinion expressed in his 24 December 2021 report, as set out above:
To suggest that lateral epicondylitis which had interfered with activities for less than one month and at the end of that period was not clinically evident, somehow put in train a chronic pain syndrome, is not plausible.
In Associate Professor McGill’s opinion, Associate Professor Champion’s comment in his report of 26 November 2021 that bilateral epicondylitis ‘was certainly prominent early in the history and is continuing’ was not consistent with the symptoms and signs recorded by Dr Kannangara and himself in 2016. Associate Professor Champion’s suggestion that the degenerative changes in the cervical spine had been aggravated and rendered symptomatic by the nature and conditions of work over many years was not supported by the literature on the aetiology of cervical spondylosis. Associate Professor McGill agreed with Associate Professor Champion that the Applicant reported widespread chronic pain but did not agree that his symptoms and reported disabilities were related to his employment.
The Applicant’s case
The Applicant is right-handed. He suffered pain in the left wrist while sorting in the large letter bullring at the delivery centre in February 2016 which caused him to cease work and claim compensation.
The Applicant’s condition was a gradual onset disease from 2014/15 with symptoms coming on gradually in the right forearm and then the left, resulting in the Applicant using both arms to sort mail up until February 2016 resulting in chronic pain syndrome which was present at the time of the original claim in February 2016.
Bilateral epicondylitis was an inadequate diagnosis. Dr Ho’s reports were a correct diagnosis but were wrongly ignored or not properly taken into account by the Respondent in the decision-making process. A decision in the Applicant’s favour should have been made much earlier. It was apparent that there was a very high psychological content to the Applicant’s presentation as recorded by Associate Professor McGill, Dr Kannangara, Dr Ho, Dr Anderson and Mr O’Neill.
According to both Associate Professor Robertson and Dr Cocks there were two causal factors contributing to the Applicant’s major depressive disorder - the Applicant’s reaction to the chronic pain and his dissatisfaction with the way he had been treated in the workplace, notably by his manager, and the treatment of his workers’ compensation claim. Each was effectively a significant contributor to the ongoing chronic pain syndrome and there was a reverse contribution.
The diagnosis of chronic pain depends on the history given by the Applicant and his wife being accepted. They gave their evidence honestly. They did not agree that they were concocting their evidence. Mr Grey accepted that some of their evidence was confusing. That may have been because of language issues, including during the hearing. They conceded that they made mistakes filling in forms and did not understand what they had to do. The Applicant failed to see a GP for treatment earlier. The Applicant’s wife encouraged him to go, but he is a proud man, dedicated to his work, and did not want to get involved in medical treatment until he could no longer avoid it.
When questioned about the Applicant not seeking medical attention when he stopped using his right hand, Mr Grey submitted that it is quite common that people do not go to doctors even if they think there might be something seriously wrong. When the Applicant’s condition got really bad so that he was unable to work, he sought medical attention. He said that he ‘collapsed’. The fact that he went so late meant that the condition was harder to treat.
Mr Grey criticised Associate Professor McGill and Dr Kannangara because of the limits of their discipline of rheumatology compared with the discipline of pain medicine practised by Associate Professor Champion and Dr Ho.
The Respondent’s case
Mr Gollan summarised the Respondent’s primary case as being based on the proposition that the Applicant and his wife both concocted a false narrative in relation to the history of chronic pain for up to three years before 24 February 2016. His secondary case was that there were other physical causes of the Applicant’s pain.
Consideration
The Applicant worked very hard for the Respondent for sixteen years. He was proud that his hard work had enabled him to support his family, including educating his children to university level. He took very little leave. This is the first time he has claimed workers’ compensation. His medical records show that until 24 February 2016 his health was generally good. It is not in dispute that he now suffers major depressive disorder and is unfit for work. The cause of this condition is in issue.
It is also not in dispute that on 24 February 2016 he suffered bilateral lateral epicondylitis. The effect of this condition is in issue.
The resolution of the issues depends on whether I accept that the Applicant suffered pain in his left and right upper limbs as a result of his work for a period of one to three years before 24 February 2016 as he claimed. That history is essential to the opinions of Associate Professor Champion and Dr Ho.
To accept that history, I must accept that the Applicant did not seek medical treatment for pain in either upper limb until a point when he ‘collapsed’ because of pain while working on 24 February 2016.
The GP’s contemporaneous record does not support the pain being so debilitating as to cause the Applicant to collapse. It records that the Applicant ‘noticed some soreness in his left wrist’.
I find that the Applicant reported the pain in his left wrist to his manager about midnight on 23 February 2016 and was moved to sort small letters until the end of his shift at 6am on 24 February 2016 when he told his manager he was going to the doctor. He was able to continue to work until the end of his shift. He did complain about that later but whether he complained at the time, I do not know.
The contemporaneous records demonstrate that soon after 1 March 2016 when the manager prepared the supplementary statement in which he did not accept that the Applicant suffered an injury at work on 23 or 24 February 2016, the Applicant felt he was being bullied in relation to his claim. That claim has continued and evolved ever since.
I infer that it was not a coincidence that the first reference to the right arm was on 3 March 2016, after that report was prepared. An ultrasound was requested, although no examination or symptoms were recorded.
It is clear from the first report of Associate Professor McGill who saw the Applicant within a month of the injury, that the injury had severely adversely affected the Applicant’s psychological health. It was also clear to the doctors who saw him within the next 18 months, including Dr Kannangara, Dr Ho, Mr O’Neill and Dr Anderson.
Unfortunately, the Applicant’s psychological condition did not improve when the Respondent accepted liability for the bilateral lateral epicondylitis on 6 April 2016.
The clinical note of the GP on 2 May 2016 reflects the Applicant’s state of mind. The GP recorded that the Applicant was continuing to have pain which was disturbing his sleep. Physiotherapy was not helpful. The pain was causing him a lot of distress and ‘He hfeels (sic) that he has to convince his workplace he has an issue when he is struggling like this’.
I accept that the Applicant was struggling and has struggled ever since. However, I do not accept that he had a history of chronic pain in his upper limbs beginning in his right arm, for one to three years before 24 February 2016. I do not accept that the reason there were no clinical notes of such pain before 24 February 2016 was because the Applicant was proud, dedicated to his work and did not want to get involved in medical treatment until he could not avoid it. I also do not accept, which was implied in Mr Grey’s argument, that the first report to the GP reflected stoicism rather than an honest report of the pain the Applicant had experienced. The Applicant had evidence of lateral epicondylitis in his right arm which Associate Professor McGill accepted, and I accept that the Applicant may have modified his work to manage that condition, however I do not accept that he had a history of pain he has claimed. When he had pain which concerned him and adversely affected his capacity to work or do other activities, he consulted his GP. It follows that I do not accept the diagnoses of Dr Ho or Associate Professor Champion. I prefer the diagnosis and opinions of Associate Professor McGill.
The history I have found leads me to accept the opinion of Dr Cocks that the Applicant meets the criteria for a Major Depressive Disorder which emerged in the context of the claimed injury as a result of the manner in which he was treated when he presented with physical health complaints and made a claim for workers compensation.
On the basis of the history I have found, I find that Associate Professor Robertson is of the same opinion.
I do not accept Mr Gollan’s submission that the Applicant and his wife had concocted their evidence. Rather, I would say that the evidence has evolved as both have been overwhelmed by the Applicant’s major depressive disorder. Their evidence was unreliable.
Mr Gollan relied on the decision of Kirkpatrick v The Commonwealth [1985] 9 FCR 36 (Kirkpatrick), as authority for the proposition that a condition arising as a result of the compensation process is not compensable and which has been followed in a number of cases in the Tribunal.[2] Mr Grey said the case did not stand for that proposition. Having reviewed Kirkpatrick and the decisions in the Tribunal which have followed it, I accept Mr Gollan’s submission. The consequence is that the Applicant’s claim for anxiety, which became in effect a claim for major depressive disorder, cannot succeed.
[2] Swindale v Comcare [2019] AATA 2426, [38]; Renouf v Comcare [2019] AATA 1055, [148].
In relation to the claims for for C5-6 disc bulge and canal stenosis with cord compression (2021/1083) and bilateral shoulder pain (2021/1084), the evidence of Associate Professor McGill and Associate Professor Fearnside lead me to conclude that those conditions are not work-related.
Conclusion
For the above reasons, each of the decisions the subject of review is affirmed.
I certify that the preceding 112 (one hundred and twelve) paragraphs are a true copy of the reasons for the decision herein of Mrs J C Kelly, Senior Member
...................................[sgd].....................................
Associate
Dated: 17 January 2023
Dates of hearing: 24-27 May and 18 July 2022 Counsel for the Applicant: Mr L Grey Solicitors for the Applicant: Mr S Hankey, CMC Lawyers Counsel for the Respondent: Mr M Gollan Solicitors for the Respondent: Mr O'Brien, Moray and Agnew Lawyers
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