Deo and Comcare (Compensation)

Deo and Comcare (Compensation) [2018] AATA 890 (16 April 2018)
Division:GENERAL DIVISION
File Numbers: 2015/1052, 2015/4726, 2016/4583,
2016/4623, 2017/3313 & 2017/3314

Re:Michelle Deo
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Miss E A Shanahan, Member
Date:16 April 2018
Place:Melbourne

The Tribunal affirms the reviewable decision dated 5 January 2015 denying liability for a MRI of the lumbar spine. (Application 2015/1052).
The Tribunal affirms the reviewable decision dated 2 September 2015 concerning the accepted condition of major depressive disorder, single episode (Application 2015/4726).
The Tribunal affirms the reviewable decision dated 19 August 2016 relating to the provision of medical treatment for the condition of cervical spine strain (Application 2016/4583).
The Tribunal affirms the reviewable decision dated 19 August 2016 ceasing incapacity payments pursuant to s 19 of the Act. (Application 2016/4623).
The Tribunal sets aside the reviewable decisions dated 31 May 2017 denying liability for chronic pain syndrome and somatic symptom disorder and remits the matter to the respondent for reconsideration in accordance with the reasons herein (Applications 2017/3313 and 2017/3314).
.............................[sgd]...........................................
Miss E A Shanahan, Member
WORKERS’ COMPENSATION – compensable soft tissue injury of the neck, consequent upon a motor vehicle accident 2010 – compensable major depressive disorder arising from workplace harassment – psychological permanent impairment acceptance for 10 per cent – cessation of liability for neck injury – claim for lumbar spinal MRI study – new claim for chronic pain syndrome and somatic symptom disorder denied – all decisions with the exception of the claims for chronic pain syndrome and somatic symptom disorder affirmed – decisions concerning chronic pain syndrome and somatic symptom disorder set aside and remitted to the respondent for reconsideration
Legislation
Administrative Appeals Tribunal Act 1975; s 37
Safety, Rehabilitation and Compensation Act 1988; ss 5A, 5B, 14, 16, 19, 24, 27 & 67
Secondary Materials
American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (DSM-IV)
American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (DSM-V)
Comcare, Guide to the Assessment of the Degree of Permanent Impairment (Edition 2.1)
World Health Organisation, International Statistical Classification of Diseases and Related Health Problems (ICD-10)
Bremner et al., ‘Hippocampal Volume Reduction in Major Depresson’ (2000) 157(1) American Journal of Psychiatry 115
REASONS FOR DECISION
Miss E A Shanahan, Member
16 April 2018

Ms Deo has the accepted conditions of cervical strain arising from a motor vehicle accident (MVA) which occurred on 22 December 2010 and arose from her employment with the then Commonwealth Rehabilitation Service, now part of the Department of Human Services. On 28 May 2013 her claim for a major depressive disorder, single episode resulting from harassment and bullying at work was accepted. In both instances payments in accordance with s 16 for medical treatment and s 19 of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) for incapacity payments were approved. In August 2014, Ms Deo sought approval for the performance of a lumbar spinal MRI (magnetic resonance imaging) as advised by Mr James King, neurosurgeon. This was denied as her compensable condition was for the cervical spine. This determination was affirmed on 5 January 2015. Ms Deo applied to the Administrative Appeals Tribunal (AAT) for review of this decision on 6 March 2015.
On 9 September 2015 Ms Deo lodged an application with the Tribunal for review of the decision of 2 September 2015, wherein Comcare affirmed the estimation of her permanent whole person impairment (WPI) at 10 per cent was correct, she having made application for this to be increased to 25 per cent.
On 25 May 2016 a delegate of Comcare informed Ms Deo that he had conducted a review of her claim file and as a result had determined that she no longer required medical treatment for her neck condition. A further decision of the same date advised Ms Deo that based on the medical evidence provided her incapacity payments pursuant to s 19 of the SRC Act would cease as of 3 June 2016. These decisions were affirmed by an authorised review officer (ARO) on 19 August 2016. On 26 August 2016 Ms Deo applied to the AAT for review of these decisions.
Ms Deo, via her solicitors, made an application on 24 April 2017 to extend liability to include chronic pain disorder and somatic symptom disorder. By a Determination of 10 May 2017 the application was rejected on the basis that the major depressive disorder had also been rejected and the delegate was not satisfied there was a contribution to a significant degree by the accepted conditions. This determination was affirmed on 31 May 2017 as an inaccurate history had been provided to various experts and in particular Dr Hundertmark relating to any pre-existing neck injuries. On 7 June 2017 Ms Deo lodged an application with the AAT for review of this decision.
ISSUES
Issues as identified by the parties and the Tribunal are:
(a)whether Ms Deo injured her lumbar spine in the car accident of 22 December 2010; or
(b)in the alternative whether she sustained a low back injury in the course of physiotherapy treatment in relation to the neck injury; and
(c)whether the MRI is reasonably required in relation to this injury.
In relation to the permanent impairment rating, the issue identified is whether she has greater than a 10 per cent whole person impairment rating in accordance as defined in Table 5.1 of The Guide to the Assessment of the Degree of Permanent Impairment (Edition 2.1) (The Guide).
The issues raised in relation to the neck injury were whether she continues to suffer the effects of the injury and if so, what medical treatment is required and whether this attracts payment under s 19 of the SRC Act for incapacity.
The issues raised in relation to the claim for chronic pain syndrome and somatic symptom disorder were:
(a)had this condition arisen from the accepted compensable conditions; and
(b)if so, had it made a significant contribution by way of aggravation of the accepted conditions thereby attracting liability.
The hearing of the matter was conducted over a period of nine days, unfortunately separated by some months. Ms Deo was represented by Ms Cassie Serpell of counsel, instructed by Angela Sdrinis Legal. Mr Roy Seit of counsel appeared for the respondent instructed by Sparke Helmore. In accordance with s 37 of the Administrative Appeals Tribunal Act 1975, the respondent provided four sets of T‑documents for the various applications. Both parties tendered further documentation, a list of which is appended to this decision. Evidence in person was given by Ms Deo, her husband Mr Lal, Associate Professor Paoletti and Mr Michael Shannon. The remaining witnesses Dr Cenap, Ms Deo’s general practitioner, her psychiatrist Dr Ibrahim and the independent medical experts Mr Gardiner, Dr Spence, Dr Low, Dr Hwang and Dr Hundertmark all gave evidence by telephone.
BACKGROUND TO THE APPLICATION
Ms Deo was born in Fiji of Indian parents. She says her father was a civil servant and diplomat, her mother was involved in home duties as there were five children and the family also cared for the seven children of a paternal uncle who had died at a young age. Ms Deo says she was schooled at various places around the world but completed Year 12 in Australia at the age of 17. She relocated to Australia in 1979 to further her tertiary studies.
Over the years she has obtained numerous tertiary qualifications. These include a Diploma in International Trade, Bachelor of Business Marketing and an Advanced Diploma in Information Technology. She subsequently obtained a Master of Business Administration from Royal Melbourne Institute of Technology finishing the course in 2010. She has a Postgraduate Diploma in Rehabilitation Studies completed at La Trobe University. While studying she was employed part time in a variety of jobs, such as waitressing, secretarial work and later she worked for the Multiple Sclerosis Society of Australia.
After the birth of her daughter in 1990, she commenced work for South Pacific Food Distributors as an operation manager in 1993 ceasing in 2003. In 2003 she commenced working with Yes West Employment Services (Yes West), a job search network providing services to the Department of Education, Employment and Workplace Relations (DEEWR). In September 2007 Ms Deo says she had been forced to resign after she reported what she considered to be unethical and illegal practices. She believed Yes West was claiming payment for services from the Commonwealth government, these services not having been provided.
It was her understanding that in order for her whistle blowing reports to be investigated she had to resign from her position. She then worked as an employment consultant with a company known as Interact Australia Employment Services (Interact) and thinks she may have been there for two years. In April 2009 she became an Employment Services consultant with the Commonwealth Rehabilitation Service (CRS) working from their office in Sunshine. She ceased work at CRS on 3 December 2012 and has not worked since.
Ms Deo’s only child, a daughter, was born in 1990. The daughter is a graduate in pharmacy, is undertaking further study and no longer lives at home. Since ceasing work Ms Deo attempted to undertake further study in 2014, 2015 and 2017 with Charles Darwin University. She had enrolled for an Associate Degree in Legal Studies but withdrew on eight occasions, having completed one subject in 2014 and another in 2016.
When Ms Deo commenced work with CRS on 8 April 2009, the so called ‘star rating’ at Sunshine was one. She said she loved the work, only directed the disabled and unemployed clients they dealt with to jobs to which they were suited and did so in consultation with potential employers and exceeded the requirement of 12 placements a month on a regular basis. She worked long hours with much overtime. She believes that as a result of her efforts the star rating of the Sunshine CRS office rose from one to four stars.
Within three months of her commencing work, she noted practices of one particular consultant, Vanita, who was creating paperwork that effectively claimed money from DEEWR that was regarded as illegal. Ms Deo reported this to the regional manager. The retail consultant was reprimanded and Ms Deo believes she then became the victim of ongoing escalating bullying and harassment for the next two years.
It was claimed that by September 2010 the bullying and harassment had reached a level where Ms Deo was being degraded and insulted frequently and at times in front of clients. Rubbish was placed in her flower pots, her coffee cup was hidden, her furniture was rearranged and other staff were incited to behave toward her in a similar manner.
On 22 December 2010, Ms Deo was involved in a MVA while driving a Commonwealth government owned Toyota Corolla on her way to attend a group of employers at Tullamarine and to deliver their Christmas presents. She was stationary, having stopped the vehicle when the taxi in front of her signalled they were turning right. She was rear-ended by another vehicle. She claims that the impact caused her head to hit the headrest then moved forward and again backwards to further collide with the headrest. She immediately experienced pain in her neck and has done so ever since.
As the accident occurred close to Ms Deo’s home, she called her husband who picked her up and took her to the Sunshine Hospital where she was observed for a period of six hours but was not x-rayed. She was off work for two weeks and during this time attended her general practitioner as her neck and upper back pain continued. An x-ray of the cervical spine was normal. The general practitioner that she saw at the time, Dr Loc Ngo, ordered a CT scan of her cervical spine. This revealed mild C5/6 cervical spondylosis with no definite nerve root compression and no significant disc prolapse although the views of C6/7 and C7/T1 levels were suboptimal and not able to be interpreted. The practice made a diagnosis of whiplash and prescribed non-steroidal anti‑inflammatory medication.
Ms Deo lodged a workers’ compensation claim for the neck pain and liability for a cervical sprain was accepted by Comcare. Ms Deo subsequently saw her general practitioner Dr Cenap who referred her for physiotherapy treatment. He certified as unfit to work for more than four hours per day, five days per week with restrictions on her driving time to 30 minutes. These restrictions were imposed on 4 March 2011. A graduated return to work plan was devised by Bridge Rehabilitation and maintained her on 5.5 hours minimum per day up to 7.30 hours per day up until the end of May 2011. The restrictions on driving remained in force until at least 29 November 2012.
From 2012 onwards, Ms Deo claimed that she was suffering from lower back pain, although prior to that date she had repeatedly described her cervical pain as commencing to the left of the midline of her neck and radiating down her entire back, i.e. cervical thoracic and lumbar spine and on occasion to both limbs with episodes of numbness from her buttocks to her feet, predominately on the left but also on the right side. She attributed the lumbar pain onset to either the MVA of 2010 or alternatively to the physiotherapy treatment for that injury. When placed on a treadmill and walked for some time she had developed lower back pain. The request for Comcare to pay for an MRI of her lumbar spine was denied by a determination of 8 October 2014 and affirmed by an ARO on 5 January 2015.
On return to work on reduced hours and driving time Ms Deo claims that the level of harassment and bullying increased substantially. She detailed this in her summary of grievances where she reports that her ergonomic desk position installed after the MVA was altered, that she was directed to place job seekers in positions regardless of whether they were suitable or not and in January 2012 her desk draw had been broken into and her address book, GPS and a USB removed. She noticed her case notes from some files were missing.
In December 2012 the then regional manager, Mr Maurice undertook her routine performance appraisal and described her as being useless in her job and not fit to hold the position. Having been acquainted with this appraisal, she left work and has not worked since.
Ms Deo claims that since that date her psychological injury has further deteriorated as has the neck injury sustained in the MVA. Despite ongoing monthly consultations with her psychiatrist Dr Ibrahim and a psychologist that she sees fortnightly, she says she has not improved and remains anxious and depressed, is fearful of driving, has trouble sleeping, has gained weight because of lack of exercise and has lost concentration and her memory frequently falters. She requires prompting by her husband to complete simple activities, to remember to turn off the iron and the stove and to take her medications.
Ms Deo has become isolated, sad, short tempered and depressed. She says she has a complete sense of helplessness and hopelessness. Her quality of life has greatly diminished, she no longer has friends and her social activities are confined to her immediate family. She is unable to meet with the Indian community as all of their activities require participants to sit on the floor and she cannot because of her neck and lumbar spinal problems. It has been claimed that she requires the supervision and direction of her husband to cope with day to day living.
ORAL EVIDENCE BEFORE THE TRIBUNAL
Ms Deo has provided four statements (Exhibits A1 to A4). Exhibit A4 is a list of grievances supplied to her solicitors. Exhibit A1 is a statement dated 8 November 2016 and that of 2 February 2016 was a less detailed but earlier statement (designated as Exhibit A2). Exhibit A3 is statement dated 27 March 2017 which provides information regarding an earlier MVA not previously declared to Comcare. This accident occurred on 14 August 2008 and was not related to her employment.
In her evidence before the Tribunal, Ms Deo gave an account of a MVA she had been involved in in 1990 while pregnant. She had been a passenger in the car and did not believe she had suffered any injury but had been taken to Sunshine Hospital as she was near term in her pregnancy. She was observed and discharged without any treatment.
Ms Deo described the accident of 14 August 2008 as occurring while she was stationary at an intersection. A car travelling at less than 60 kilometres an hour in a heavily built up area hit her left front passenger side. She said she attended Sunshine Hospital because she had a sore neck and does not recall being kept there overnight. She believed the Transport Accident Commission (TAC) claim was submitted, possibly at the hospital, but she made no claim for medical expenses or loss of income and had fully recovered after a few days. Ms Deo had no memory of any back problems prior to 22 December 2010.
In her evidence Ms Deo detailed her injuries, her workplace experiences and her ongoing symptoms relating to her neck, her back, her lower limbs and her psychiatric state. Her recall of events was at times impaired and she clearly believed she had been dealt with unjustly by her employers and by Comcare. She described her back pain as excruciating and preventing her from: performing household duties, washing more than two dishes at a time, being able to garden or pursue her previous hobbies of walking long distances such as to and from work, a total of 14 kilometres, attending gymnasium on a daily basis and pursuing the hobby of bushwalking. Her depression impacted on all phases of her life, including her relations with her husband. She regarded her husband as her full time carer. During the night he frequently massaged her back and her left leg to relieve her symptoms and restore her sleep.
She gave evidence that her husband had to retire in 2012 to provide her full time care and that in 2012 he had suffered a stroke which she believed was precipitated by her psychiatric state. Ms Deo agreed that despite all treatment her symptoms were unchanged. She had seen a neurosurgeon, Mr John King, regarding her lumbar spine pathology later diagnosed as an L4/5 disc posterior disc prolapse producing moderately severe canal stenosis, L5/S1 degenerative spondylosis with moderate bilateral foraminal stenosis and mild impingement of the exiting L5 nerve roots. Mr King had advised that there was no indication for surgical intervention.
In cross-examination by Mr Seit in relation to the 2008 MVA, Ms Deo confirmed that she was unaware of any TAC claims having been lodged as a result of any of the motor vehicle injuries. She denied filling out the claim for workers’ compensation dated 10 January 2013, although she agreed that it carried her signature. She thought the details had been filled out by someone at CRS.
Mr Seit went through all the details entered in that form some of which were correct and others she said were incorrect. Ms Deo agreed that the history she had given to Dr Wyatt in November 2013 and to Professor Paoletti in May 2014 were incorrect to the extent that she had denied ever having made previous workers’ compensation, Comcare and TAC claims.
Mr Seit put to her that she had attended Western Hospital in 1994 with panic attacks for which she had been prescribed Valium. She denied that this was anything like her current symptomology. She did not recall any previous complaints of back pain despite Dr Cenap’s records recording left sciatica on 29 March 2007, neck pain following the MVA of 18 November 2008 and left leg pain on 24 September 2010 for which Naprosyn was prescribed. Right lower back pain was not recorded as present until 7 October 2013. There was however the additional entry stating back pain on and off since May 2012. Throughout this period neck pain was continuously reported. The majority of these entries are no more than two lines of hand written comment. No physical examination has been recorded in the clinical records.

During cross-examination it was determined that Ms Deo had resigned from Yes West in mid-2007 and commenced at CSR on 8 April 2009. In the interim she had worked for Interact for an unknown period. After she ceased employment with Yes West, subsequent investigations had resulted in Yes West being fined 24 million dollars for their illegal practices.
Ms Deo could not recall having seen a general practitioner by the name of Dr Sheriff in March 2008 or that she had undergone mental health plan testing that indicated she suffered from depression or an adjustment disorder. She had subsequently been referred to the psychiatrist Dr Albert Kaplan. Ms Deo had no memory of these events. A K10 questionnaire completed on 2 May 2008 provided a score of 32 out of 50 indicating a moderate degree of depression. Evidence was produced that following the vehicle accident in 2008 she had been taken to hospital by ambulance. This, she said, she had forgotten.
Similarly, she had forgotten that a chest x-ray and a CT scan had been performed or that she had then been transferred from Western Hospital to the Royal Melbourne Hospital for further observation. She had no recall of any of the correspondence with TAC or the entries in the Western Family Medical Centre relating to her neck and shoulder pain following the MVA in 2008. Documentation recorded at that time said she had worked at Yes West from 31 October 2004 to 17 May 2007 and that at the time of the accident she was unemployed and receiving a Newstart allowance. Ms Deo had no recall of a letter from the TAC dated 27 November 2008 stating her claim had been accepted and they were considering a loss of earnings claim. Again she did not recall that expenses had been paid by the TAC for medical attendances and physiotherapy in 2008.
In cross-examination, Ms Deo was taken to the records of the three physiotherapists who had treated her between December 2011 and May 2012. These records were devoid of any reference to lumbar pain occurring in May 2012. The Tribunal was provided with the records of Mr Michael Tricarico, physiotherapist, who saw Ms Deo between December 2011 and February 2012. In all reports the pain was cervical spine sited and the physiotherapist had been told this was due to C5-7 disc trauma diagnosed on CT scan. This is clearly incorrect as the report had stated that the C5/6 to C7/T1 discs had not been visualised properly because of technical difficulties. The notes include a description of radiation of the neck pain to the head giving rise to headache but there was no record of radiation to the thoracic and lumbar spine or to the lower limbs.
Ms Deo could not recall the history she had given to Dr Hwang when she saw him in June 2012 and August 2012, or to Dr Ramage in November 2012. Both doctors are Occupational Physicians. Dr Hwang recorded that by 2011 her neck pain had resolved and elicited a normal range of movement of the cervical spine. Dr Ramage also reported a full range of movement of the entire spine.
Given Ms Deo’s evidence that she thought her husband’s stroke occurred in 2012 and had been precipitated by her ill health, she gave evidence that in 2012 he had experienced a headache and attended the Footscray Hospital but no abnormality was found. This was inconsistent with the reported history given to her psychologist Dr Rafael regarding her husband’s health. Similar details have been recorded by the psychiatrists Dr Nathar and Dr Majoor and the occupational physician Dr Wyatt with all recording that Mr Lal ceased work in 2012 because of his own health problems and to care for Ms Deo. Ms Deo agreed that that information she had given to the doctors was incorrect. Her husband had ceased work in 2008 when the company he then worked for closed.
In re-examination by Ms Serpell, Ms Deo explained these given inconsistent histories as being due to her poor memory.
Mr Lal
Mr Lal provided a witness statement dated 27 March 2017. In this he said that prior to the MVA of December 2010, Ms Deo was sharp, active, engaged and in good health. She had been diagnosed with hypertension which was well controlled with medication. In relation to the accident of 2008, he recalled that she attended hospital immediately after the MVA but made a full recovery. He could not recall her having any time off work or needing medical treatment following that accident.
In relation to the MVA of December 2010, he stated that she had developed neck and back pain which became chronic and shortly thereafter she started experiencing problems at work and became psychologically unwell. He said that since December 2010 their lives had been severely impacted on by her injuries and mental health conditions. Ms Deo’s personality had changed dramatically and she was no longer a smart, strong, capable woman and had become dependent on him and others to survive.
Mr Lal was fearful that without the support of her medical practitioners and psychiatrists she may have done something stupid as she frequently stated her life was not worth living. He described Ms Deo as being fearful and distrustful of people, temperamental, forgetful and her concentration as poor. He stated that she left things on the stove, forgetting that they were cooking and would also leave the iron on. He had to remind her to take her medication. Ms Deo had trouble sleeping, lacked energy and was lethargic most of the time. As a result of her symptoms they rarely went out and their social life was greatly restricted.
In his evidence before the Tribunal, Mr Lal confirmed that he had ceased work in approximately June 2008. He had been working in a hotel in the city performing office work plus maintenance and the hotel had been sold. He then bought an investment property which he renovated and he continues to perform a considerable amount of maintenance, working from 7.00am to 11.00am most days of the week.
He gave evidence that the MVA in August 2008 had occurred five minutes walking distance from their home. He was at home having lunch when a lady called in person to tell him of the accident. He then walked to the site and found his wife standing in the road talking to the police. She said she was okay and he went home to get his car. He noted that the left front fender of his wife’s SUV was damaged. The police instructed him to remove her car, so he took it home and parked it. He could not recall if he had taken his wife to hospital or an ambulance had been called. He said he was more worried about the car.
Mr Lal had not visited his wife at the Sunshine Hospital but having been informed she was to be transferred to the Royal Melbourne Hospital he went there and stayed for two to three hours. Ms Deo was discharged from the Royal Melbourne Hospital at 9.00pm or 10.00pm on the same day. Mr Lal was certain she had not stayed overnight. He recalled she had been given what he called a sick sheet at the hospital.
After the accident Mr Lal had attended Kenyons Lawyers as he was worried there may be litigation arising from the MVA and in addition the SUV had not been covered by comprehensive insurance. He thought he saw Kenyons Lawyers on two or up to four times. He had been provided with TAC forms for his wife but he did not fill them out. He did not know if any money had been paid to either his wife or himself. He said that on arrival home his wife was free of pain and did not require any further treatment, in particular no physiotherapy. He could not recall if she had any time off work but certainly he did not stay at home to look after her.
In contrast, the 2010 accident had had a major effect on Ms Deo’s functioning. Immediately after the accident his wife had rung him saying she was suffering from neck pain. Mr Lal drove to the site of the accident which again was close to their home and took his wife to the Sunshine Hospital Emergency Department. He noted that the boot of the Toyota Corolla was caved in. Mr Lal said he collected his wife from the Sunshine Hospital at approximately 10.00pm on the same day. She was still in pain and had been given Panadol. He could not recall how long she was off work following the MVA. Ms Deo continued to have pain localised to the cervical spine near the base of the skull (occiput) and the pain radiated to her left leg. Mr Lal would perform massage and apply Vicks Vapour Rub to his wife’s sore areas until he got sick doing so and shifted down stairs to sleep.
Mr Lal had been unaware of any problems at work until a few months after the accident when Ms Deo told him of the difficulties she was experiencing with a co-worker, the activities such as putting rubbish in her pot plant, calling her names and encouraging the job seekers to refer to her as the black lady. His wife had become progressively frightened and distressed and her mood changed. As these problems escalated Ms Deo had left work in December 2012. He had been aware that she was not meeting her KPIs (key performance indicators) and that she had been accused of not making reports after her notes disappeared.
In examination-in-chief Mr Lal was questioned about his attendance at the hospital in 2012, and Ms Deo’s report that he had a stroke. He explained he had a funny feeling in his tongue causing him to stutter and had experienced pain in his neck. He had been advised to attend hospital if the pain increased. As a CT of his brain showed no evidence of a cerebrovascular accident he was prescribed low dose aspirin and was referred to a neurosurgeon and told there was nothing serious.
Mr Lal confirmed that he did most of the cooking, washing, made the beds, vacuumed and mopped, did all the gardening but his wife came with him to do the shopping. Prior to her sustaining her injuries she had done all the cooking, washing and cleaning of the house. Mr Lal had put in a second kitchen at home in the undercover patio with wider and higher benches so that his wife could do some activities without having to bend her neck.
He advised his wife to try and come to terms with her chronic pain but did not believe her loss of esteem, consequent upon loss of her job, could be rectified.
In cross-examination Mr Seit asked Mr Lal if he had any other medical conditions. Mr Lal said he had been diagnosed with stenosis of the second diagonal branch of the left anterior descending coronary artery but as all other major arteries were excellent, no treatment was required. This diagnosis was made in 2016. He has also had some pain in his right knee in 2010 and 2011 but following arthroscopy in 2011 he was much improved. He had had left shoulder pain initially diagnosed as a frozen shoulder and this had since totally resolved. Ms Deo had in her evidence said that her husband’s ability to assist in carrying things, putting out the rubbish or doing the gardening was limited by his left shoulder condition which according to Mr Lal has fully resolved.
Mr Lal confirmed that he had worked for the Fijian Government in technology and finance and was in receipt of a Fijian Civil Service pension.
Ms Deo gave her evidence over three and a half full hearing days requiring one break when she became tired and her pain level increased.
The hearing of the matter resumed three months later on 5 March 2018.
Dr Umit Cenap – General Practitioner
Dr Cenap has been Ms Deo’s general practitioner since March 2006. He provided a report dated 28 January 2012 and another dated 19 March 2013. In the first report he addressed the MVA of 22 December 2010 and in his evidence confirmed that he had first seen Ms Deo in relation to these injuries on 24 February 2011 at which time she complained of constant neck and back pain with reduced endurance. At that time he made a diagnosis of a whiplash injury.
According to his report Ms Deo had not worked for two months after this injury. Dr Cenap described clinical findings of painful movement of the neck and back, no sensory changes in the neck, back and arms, normal muscle power but reduction of the cervical spine range of movement. Ms Deo also complained of headaches and insomnia. The Tribunal notes that none of these examination findings are entered in the clinical records. Dr Cenap said he had been aware of Ms Deo’s work related conflicts and these he addressed in his report of 19 March 2013 detailing the nature of these in the same terminology as the summary of grievances. In his report Dr Cenap confirmed he had referred Ms Deo to a psychologist and a psychiatrist as she was suffering from anxiety, stress, insomnia, depression and an adjustment disorder.
In his evidence before the Tribunal, Dr Cenap could not recall the name of the psychologist, nor when he had referred Ms Deo to Dr Ibrahim. In a further report dated 14 June 2016 Dr Cenap opined that the lumbar disc degenerative changes demonstrated in the CT scan were not a direct result of the MVA of December 2010 but were pre-existing degenerative changes that had been aggravated by the physiotherapy prescribed for treatment of her cervical pathology. He remained of that opinion and also that the two conditions (i.e. the physical injuries and the psychological injuries) interacted and aggravated each other resulting in a vicious cycle.
Dr Cenap confirmed that Dr Ibrahim ordered the medication for the psychiatric condition but he would prescribe Valium and on occasion Endep. In his report of 2016, Dr Cenap provided a whole person impairment rating of 25 per cent. He was asked if he was trained in the interpretation of the Guide to which he answered he roughly remembered what was in it. He did not know if Ms Deo had attended a pain management clinic but thought it would be worth trying.
In cross-examination Dr Cenap agreed that Ms Deo’s back pain was long standing but had been aggravated by the MVA. In relation to the entries which referred to the back, Dr Cenap clarified this as meaning the entire back, not just the cervical spine or the upper thoracic spine.
Associate Professor Paoletti - Psychiatrist
Associate Professor Paoletti first saw Ms Deo on 21 May 2014. He obtained a very detailed history of her education, her post graduate education, her shift to Australia and the subsequent events already referred to. He made a diagnosis of an anxiety disorder not otherwise specified and a depressive disorder not otherwise specified as described by DSM-IV. He attributed both conditions to a combination of bullying in the workplace and the sequelae of the MVA and estimated her WPI impairment due to the psychiatric condition as 25 per cent. He also performed an assessment of non-economic loss under Comcare Part B with a total score of 10.4.
In regard to Ms Deo’s treatment he recommended a change in antidepressant medication, replacing the dothep with an SNRI (serotonin-norepinephrine reuptake inhibitor) such as Cymbalta to target both the depression and the pain threshold. In addition he would consider the use of Seroquel to target her post-traumatic stress type symptoms and her poor sleep and cease treatment with benzodiazepines (Mogadon and Valium). He considered Ms Deo’s prognosis to be static for the foreseeable future and that she was incapacitated for any form of work.
Associate Professor Paoletti provided a further report dated 12 November 2014. He confirmed the total psychiatric impairment to be 25 per cent assigning 15 per cent of this to the bullying and associated events at work and 10 per cent to the MVA. A further report dated 11 October 2017, addressed all of the symptomatology that has arisen in the intervening period since the event of 2011 and 2012.
In the 11 October 2017 report, Associate Professor Paoletti reiterated already reported symptoms and the mental state examination findings of depressive ideation, anxious phobic ideation but no delusional thinking. Ms Deo did have hypervigilance in traffic and reported flashbacks of incidents work and the MVA. He considered her cognition at the time of interview to be reasonable as was her memory. Associate Professor Paoletti again assessed Ms Deo’s impairment rating and on this occasion concluded that it was above 10 per cent but fell short of the Comcare Table 5.1 requirements for a 25 per cent rating. He made a halfway compromise assigning a rating of 18 per cent, with 12 per cent due to the events at work and 6 per cent to the MVA. He assessed the non-economic loss in accordance with Comcare Part B arriving at a total score of 11.
He confirmed his diagnosis of an unspecified anxiety disorder in accordance with DSM-V, an unspecified depressive disorder and added the new diagnosis of a somatic symptom disorder (SSD) with predominant pain, again in accordance with DSM-V. The anxiety and depression were attributed to the combined effect of the bullying at work and the MVA and the SSD was attributed to the MVA. He believed that the work elements had contributed to the progress of the SSD. Once more he suggested a change in antidepressant therapy, cessation of Mogadon and Valium and regarded her prognosis as being guarded. Ms Deo remained totally incapacitated for work and the duration of this was indefinite. On psychiatric grounds alone Associate Professor Paoletti considered Ms Deo unable to engage in sustainable employment.
In evidence before the Tribunal, Associate Professor Paoletti confirmed the content and opinions of his previous written reports and explained the differences in his 2014 diagnoses to those made in 2017 as reflecting the DSM-V coding which he had followed strictly in making the diagnoses. The changes he had made to the allocation and total figure for permanent impairment, that having been 25 per cent in 2014 and 18 per cent in 2017 in contrast to Dr Spence’s rating of 10 per cent arose from his methodology derived from risk management criteria whereby he made his permanent impairment estimations by considering the individual as living alone, exposed to a risk of self-harm experienced accidently and without immediate support.
While Dr Spence had made a diagnosis of a major depressive disorder, Associate Professor Paoletti did not believe this differed substantially from his diagnoses. In general Associate Professor Paoletti agreed with Dr Spence’s opinion except that some of the terminology used, particularly that of the abnormal illness behaviour, was now outdated. He agreed that a return to work program was most unlikely to succeed as was a rehabilitation program but disagreed that Ms Deo had a narcissistic trait. Associate Professor Paoletti had added SSD to his earlier diagnoses on the basis of DSM-V but could well have included the diagnosis of a pain disorder in 2014. He agreed with the content of Dr Hundertmark’s report.
Associate Professor Paoletti provided information relating to more recent research in concept of chronic pain syndrome/somatic symptom disorder relating to the afferent input of pain sensation and the filtering of this at both the spinal and cerebral level. It had been suggested the decrease in the normal filtering effect may be genetically determined.
Mr Seit ascertained that Associate Professor Paoletti had been unaware of the MVA of 1990 and the 2007 whistle blower complaint Ms Deo had made leading to her resignation from Yes West. The information that Ms Deo had been referred to a psychiatrist Dr Kaplan in or about 2008 was provided. The Associate Professor was asked to comment on the K10 assessment rating of Ms Deo’s level of depression. This he said was not diagnostic but indicated moderate severity. Associate Professor Paoletti considered that the MVA of 2008, may have been significant in terms of the development of symptoms after the 2010 accident and similarly the 2007 whistle blowing complaint and subsequent resignation could have impacted on the events at work at CRS.
Associate Professor Paoletti was further questioned about Ms Deo’s medication. He repeated his earlier opinion that tricyclic antidepressants such as Dothep were now rarely used for depression and the dose of 25 mg was inadequate. He considered an SNRI such as Cymbalta was safer in terms of the risk of overdose, had less side effects at therapeutic levels and was effective in terms of pain control. He did not believe that Ms Deo was at risk of taking her own life but suicidal risk could arise in the future.
Dr Samir Ibrahim – Psychiatrist

Dr Ibrahim is Ms Deo’s treating psychiatrist. He first saw her on 21 December 2012 and had obtained the history of the workplace harassment and bullying in detail and to a lesser extent that of the MVA of 2010. At that time he had made a diagnosis of Major Depression (adjustment) with biological and melancholic features. He prescribed antidepressants in the form of Dothep with limited response.
Dr Ibrahim has seen Ms Deo approximately monthly since 2012. He had provided a further report of 2 July 2016 and corresponded regularly with Dr Cenap.
Dr Ibrahim said he had a particular interest in a psychopharmacology and attended numerous meetings as a medical correspondent for Pfizer and other drug companies. He also undertook postgraduate training in psychiatry for overseas trained doctors, taught psychiatric diagnostics for the Australian Psychologists Association and was a cofounder of Psychopharmacology Education Associates.
In his report of 2 July 2016, Dr Ibrahim detailed Ms Deo’s work performance at CRS. He understood that she had contributed a massive improvement in the quality of service provision but her reporting to management of various errors resulted in her being labelled a whistle blower. Ms Deo had informed him of the various work incidents but he could not recall the details. He was aware of the MVAs which he believed had resulted in neck/disc lesions at C5 and C6 and these had also contributed to her psychological illness. Dr Ibrahim said that restrictions in self-care and household duties was the antithesis of her culture in which the housewife took pride in home achievements and felt unworthy when aided. He noted Ms Deo’s poor concentration, memory loss and her mood changes and that she continued to ruminate about the behaviour of her superiors and co-workers fearing similar treatment should she resume work.
In 2016 Dr Ibrahim made a diagnosis of an adjustment disorder with mixed depression and anxiety symptoms. He refrained from commenting on her physical injuries but agreed that chronic pain syndrome could follow such injuries. He referred to an article by Bremnar published in the year 2000, reporting a reduction in the volume of the hippocampus in depressive illnesses. The Tribunal requested that he provide a copy of this article which was received later.
In his evidence before the Tribunal Dr Ibrahim was provided with extra information regarding the MVA’s of 1990 and 1998 and the whistle blower role Ms Deo had assumed in 2007 while working for Yes West. This did not alter his opinion. He informed the Tribunal that people of south-east Asian origin have different genetic alleles which affect the enzymes dealing with psychomimetric drugs in such a way they require a lesser dose of antidepressants. For this reason he started treatment with a low dose and increased it in accordance with the therapeutic effect balanced with the side effects the drugs produced.
Ms Deo had developed a dry mouth with Dothep and therefore he started with a small dose. He prescribed Mogadon and Valium, both of which he had ordered at some time, as short term treatment only. Dr Ibrahim had commenced Ms Deo on 25 mg of Dothep a day with little benefit, had increased it to 50 mg per day with a slightly improved response and currently she was taking 75 mg daily. He attributed her persisting symptoms to a combination of the sequelae of the events of 2009 to 2012, she having been belittled as a person, lost her career, and suffered financial loss from not working, all of which has impacted on her and her family.
Dr Ibrahim disagreed with Dr Spence’s opinion that Ms Deo had narcissistic traits, he did not understand Dr Spence when he said she was not fit for a rehabilitation program. Dr Ibrahim considered Ms Deo’s poor memory was due to areas of brain shrinkage, in particular the hippocampus. Such changes had been demonstrated in studies using functional MRI.
Dr Ibrahim disagreed with the recommendations of other psychiatrists that Ms Deo should be trialled with an SNRI such as Cymbalta. He preferred the use of tricyclics and avoided Cymbalta as it had no sedative action. Dr Ibrahim differentiated the drug response in endogenous depression to that of exogenous depression. It was his opinion that individuals with endogenous depression responded much better to medication and other treatments such as transient magnetic stimulation than those with exogenous depression due to an external stressor.
In cross-examination Mr Seit apprised Dr Ibrahim of Ms Deo’s referral to Dr Albert Kaplan in 2007 or 2008 and Dr Sheriff’s estimation on a K10 level of depression at 32 out of 50. Dr Ibrahim regarded that score as quite severe and was unaware of this previous estimate or the referral to Dr Kaplan. In terms of the response to treatment, Dr Ibrahim felt that Ms Deo had improved in the past two to three years and this may have been due to the increase in the dose of Dothep from 25 mg to 75 mg.
Dr Ibrahim said he would support a pain management program provided it was multi-disciplinary, although Ms Deo was seeing him and a psychologist regularly and this may be sufficient as, in his experience, the majority of pain management clinics concentrated on the prescribing of analgesics. While Dr Ibrahim declined to provide a WPI or percentage figures for various factors impacting on Ms Deo’s psychological condition, he opined that they were significant in terms of the legislation.
Mr Douglas Gardiner – Orthopaedic Surgeon
Mr Gardiner is an orthopaedic surgeon who saw Ms Deo at the request of the applicant. His opinion was sought in relation to the MVA of 2010 and the claimed cervical sprain and the later reported lower back pain. Ms Deo described the MVA as previously recorded. Her complaints as recorded by Mr Gardiner were of ongoing left sided neck pain radiating to her body, chest, down to her lower back and on some occasions to both lower limbs. She also experienced episodes of bilateral lower limb numbness extending from the buttocks to just below the knees. He noted she was no longer able to engage or participate in any physical activities including those associated with religious pursuits and that while she had been told she needed an MRI of her entire spine Comcare had denied liability and payment.
On examination Mr Gardiner noted some spasm of the cervical, thoracic and lumbar muscles, some tenderness on palpation and limitation of all movements of the spine by pain. Straight-leg raising was within the normal range. No abnormality was detected on neurological examination.
On examination of the cervical spine all movement was again limited by pain, there was some muscular spasm on the left side and examination of both upper limbs was normal as was the power of the musculature and the reflexes.
Mr Gardiner had not been supplied with any radiological imaging films or CDs but was provided with the reports of the CT of the cervical spine of 2011 and the subsequent MRI of June 2014, the CT scan of the lumbar spine of 2013, a further CT scan of the lumbar spine of 2014 and a CT of the thoracic spine of 12 June 2014. (Tribunal note: these have been referred to previously in the course of this decision)
In his opinion Mr Gardiner said there was radiological evidence of pre-existing disease at the cervical, thoracic and lumbar spinal levels but had been asymptomatic while she was physically active. The MVA of 2010 had rendered this pathology symptomatic. Ms Deo had told him she was very keen to resume her pre-injury duties as she had planned to work for a further 10 years with CRS or a similar government department. Mr Gardiner provided a diagnosis of traumatic exacerbation of cervical, thoracic and lumbar spondylosis with a poor prognosis. He confirmed that surgical treatment would not be of benefit. A permanent impairment assessment of the cervical, thoracic and lumbar spine in accordance with Tables 9.15, 9.16 and 9.17 respectively, resulted in a whole person impairment rating of 22 per cent.
In his evidence before the Tribunal, Mr Gardiner was first informed of the documented MVAs of 1990 and 2008 and the recent diagnosis by Associate Professor Paoletti of a somatic symptom disorder. He was asked what impact that had on his opinion and whether he was familiar with a somatic symptom disorder. Mr Gardiner said it was his understanding that SSD was characterised by non-anatomically based symptoms but as far as the details of the condition were concerned he was not the right person to ask. As he had detected muscle spasm at the time of his examination with limitation of movement by pain, he thought these physical signs were genuine. He had not detected any evidence of so called abnormal illness behaviour.
Mr Gardiner was informed of the content of Dr Cenap’s clinical notes and the diagnosis of sciatic pain and earlier neck pain arising from earlier motor vehicle incidents. Mr Gardiner said he did not know what sciatica meant in the terms of a general practitioner’s records but this history was contradictory to that which he had obtained and while it did not change his opinion, it changed his estimation of the contribution of the 2010 MVA to the whole person incapacity.
In relation to the claim that the treadmill exercise prescribed by the physiotherapist had resulted in lumbar back pain, Mr Gardiner could not comment on the viability of such a hypothesis.
In cross-examination Mr Gardiner said he had been given a history of pain in Ms Deo’s lower back, other than the description that the neck pain radiated to the lumbar region. He considered it possible that neck pain could radiate to the upper thoracic spine but the correlation between the two years after the MVA was, in his opinion, tenuous, particularly when there were earlier reports of lumbar pain by the general practitioner. This was also supported by the records of Sunshine Hospital of 2004 when Ms Deo had attended following a fall over a desk, following which it was recorded that she had lumbar back pain of three months duration. Mr Gardiner said he could only provide an opinion based on the history given to him at the time but this further information had undermined that opinion.
Mr Gardiner was taken to Dr Hwang’s report of August 2012 recording a normal range of movement and that Ms Deo was pain free with no tenderness in her cervical spine. He was also acquainted with the fact that, following the accident in 2008, Ms Deo had been taken first to Sunshine Hospital and then to the Royal Melbourne Hospital with left sided neck pain and remained symptomatic for a further three months. He was asked whether this impacted on his opinion and he said it did to a moderate degree.
In re-examination Ms Serpell asked how often patients with psychiatric diseases and perhaps hippocampal atrophy had affected memory. In Mr Gardiner’s experience this was common.
Dr Brendon Spence - Psychiatrist
Dr Spence saw Ms Deo on 26 May 2015 at the request of Comcare. He had been provided with the reports of Dr Jennifer Majoor of 4 July 2014 and that of Dr Nathar of 18 October 2013. He had at least one report from the treating psychiatrist Dr Ibrahim.
Dr Spence obtained the full history of both the MVA in 2010 and the workplace harassment and bullying. He described in detail her limitation of activities and dependence on her husband in many ways, although Ms Deo had told him she did on occasion drive herself to medical appointments, shopped with her husband in the supermarket and shopped by herself locally.
Dr Spence had been informed that there was no past history of psychiatric symptoms. On a mental state examination he described her as having an affect of veiled anger that heightened when she discussed the workplace, her co-workers and the insurer. He assessed her as having very fixed views about her physical illness and that she was an invalid, with both her physical and mental problems attributed to the workplace.
Dr Spence made the diagnosis of a major depressive disorder, single episode, and a pain disorder associated with psychological factors. He agreed with Dr Majoor’s recommendations that her treatment with antidepressants be changed to an SNRI and that her use of five tablets of Valium a day should cease. He considered her prognosis to be poor.
In examination-in-chief Mr Seit informed Dr Spence that Ms Deo’s claim that her husband had suffered from a stroke in the year 2012 was incorrect. This did not change his opinion. He was also informed of her attendance in 2008 on a Dr Sheriff who had diagnosed an adjustment disorder and referred her to Dr Kaplan and that a K10 questionnaire had revealed a score of 32 out 50 for depression. While Dr Spence thought this may be relevant he could not comment further without access to Dr Kaplan’s notes.
Dr Spence did not agree with Dr Ibrahim’s diagnosis of an adjustment disorder with depressed mood. He considered such a diagnosis to be a diagnosis by default attracted by the number of symptoms and their lesser severity to that of a major depressive disorder. He regarded such an approach as being inferior psychiatric practice. He considered the dose of Dothep to be ineffective as the usual dose was 150 mg. He was unaware that there was said to be genetic difference in tolerance for tricyclic antidepressants in persons of south-east Asian origin including those of Indian heritage.
Dr Spence recommended prescribing of Cymbalta and treatment in a multidisciplinary pain clinic and believed this would lead to improvement in Ms Deo’s conditions. Dr Spence confirmed his 10 per cent WPI rating due to psychiatric factors.
Mr Seit informed Dr Spence that Ms Deo’s memory lapses such that she forgets she has left the stove on and has to be reminded to take her medication. Dr Spence had not been given such a history and on questioning her, had not found that Ms Deo had any memory deficit.
Dr Spence agreed with Associate Professor Paoletti’s diagnosis of a somatic symptom disorder as she satisfied the DSM-V criteria for that diagnosis. He reiterated his opinion as expressed in his report that Ms Deo had a narcissistic tendency in assessing her own abilities and he thought this may well have impacted on fellow workers.
Dr Ibrahim’s opinions of biological depression being easier to treat in terms of response to medication was, in Dr Spence’s opinion, old fashioned thinking. He said that current treatment was on the basis of symptoms, not the origin of the depression. Dr Spence believed that Ms Deo required treatment with SNRIs and such treatment should be provided indefinitely. He disagreed with any suggestion that Ms Deo required supervision and direction in her daily activities.
Mr Michael Shannon - Orthopaedic Surgeon
Mr Shannon provided a report on 3 August 2015 having seen Ms Deo on that day. He obtained a history of the MVA of 22 December 2010 resulting in severe neck pain extending into the upper back. Ms Deo had not specifically complained of low back pain but said she had pain in the whole of her back. She had informed him that she was on reduced workhours until August or September 2011, having experienced increased pain in her neck and her entire back when she attempted working full-time hours and despite having reduced her driving time.
After ceasing work she had developed pain in her left leg with numbness in the lateral aspect of the thigh to the knee extending to mid-calf level. Her current symptoms were described as ongoing pain and stiffness in her neck and pain in the low back extending into the left leg. At the time of the consultation her treatment was Panadol Osteo and Nurofen for pain and she was taking Lyrica 75 mg twice a day. Mr Shannon was aware of her psychiatric problems and her attendance on Dr Ibrahim. He outlined the previous activities which she could no longer pursue.
On physical examination he noted mild symmetrical restriction of movement globally, the absence of muscle spasm, no neurological abnormality in the upper limbs and mild restriction of flexion and extension of the lower back with a normal range of lateral flexion but a mild restriction of rotation. Straight-leg raising was 70 degrees on both sides and there was no muscle wasting. All reflexes were present and equal.
Mr Shannon was provided with x-ray reports, in particular the x-rays of 2013 and the CT scan of 2014, which have already been referred to in earlier reports.
The MRI scan of the cervical spine conducted in June 2014 was reported to show degenerative changes in C5/6 and C6/7 with some foraminal stenosis at C6/7 and no significant central canal stenosis. The CT scan of the thoracic spine was reported to show multilevel thoracic spondylosis and the CT scan of the lumbar spine showed a broad based L4/5 disc prolapse causing subarticular stenosis with advanced degenerative changes in the disc with facet joint arthritis.
Mr Shannon had noted that Ms Deo had been seen at the Sunshine Hospital on 14 August 2008 and had x-rays performed and had also attended the Emergency Department in February 2002 complaining of neck pain and headache. There was an attendance in 2004 when Ms Deo gave a history of back pain for three months following a domestic fall against a desk. Mr Shannon opined that the MVA of 22 December 2010 could have aggravated pre-existing asymptomatic cervical disc degeneration but there was no objective evidence of the development of radiculopathy.
Mr Shannon considered the earlier complaint of upper back pain was consistent with the cervical spinal aggravation and as he had estimated from the information provided that the collision was of modest proportions, he did not believe she would have sustained any lower back injury. He also noted that in the reports of Dr Cenap of 12 October 2012 and that of Dr Ramage of 1 November 2012 both stated that Ms Deo’s low back pain had completely resolved. Mr Shannon believed that any physiotherapy, in particular walking on a treadmill, could cause temporary exacerbation of symptoms but at the time Ms Deo ceased work she had no such pain.
Mr Shannon concluded it would be reasonable to perform an MRI scan of the lumbar spine based on her new symptoms but doubted they would show anything other than spondylosis. In his opinion Ms Deo had suffered a temporary aggravation of the lumbar spine spondylosis which had ceased before she left work.
Mr Shannon had been aware of the episodes of back pain, particularly those of 2004, 2007 and 2008 documented in Dr Cenap’s records, although Ms Deo had not provided this information. He agreed with Dr Ramage’s opinion that treadmill exercise could cause an increase in back discomfort or pain but only on a temporary basis.
Dr Sean Low Occupational Health Physician
Dr Low saw Ms Deo at the request of Comcare on 1 March 2016 and later provided two supplementary reports.
Dr Low’s opinion was sought in relation to Ms Deo’s spinal injuries said to be sustained in the MVA of 22 December 2010. The history he obtained was similar to those already reported. Dr Low had been provided with the 2012 reports of Dr Hwang and noted the inconsistency of the history he had obtained, given that Ms Deo had informed Dr Hwang in 2012 that her neck pain had fully resolved.
When seen, Ms Deo complained of constant neck pain which she rated as being between four and nine out of ten on the visual analogue scale and said she tried to maintain her neck in a flexed position to reduce the pain. The pain was exacerbated by extension of the neck and rotation. The pain was said to radiate to her shoulders and lower back and was of a throbbing nature. At night her pain escalated to a ten out of ten rating. Ms Deo denied that the pain had been in remission at any time since the day of the accident.
Ms Deo denied any significant relevant past history and did not mention the earlier MVAs in which she had been involved. Dr Low obtained a detailed history of Ms Deo’s global reduction in her ability to perform the activities of daily living and her dependence on her husband. Ms Deo claimed an inability to hold any posture for greater than 15 minutes. This included sitting and standing and she avoided driving whenever possible. During the consultation Ms Deo was observed to sit comfortably for a period of 40 minutes.

Physical examination of the cervical spine revealed a global reduction in the range of movement with flexion at 10 degrees and extension zero degrees. There was slight tenderness over the spinous processes. No abnormality was detected in the upper limbs or shoulder girdles. On inspection of the thoracic lumbar spine there was no obvious deformity but there was tenderness to light palpation in the thoracic spine and lumbar thoracic junction. Once more, there was global reduction in the lumbar spine with flexion being 10 degrees and extension zero, lateral flexion 10 degrees and rotation 10 degrees. Straight leg raising on the right was limited to 30 degrees and on the left to 20 degrees. No abnormality was detected in the lower limbs and while Ms Deo was unable to perform active hip flexion, she was noted to so during postural transfer. All reflexes were normal and sensation was reduced over the lateral aspect of both knees.
Dr Low reviewed the reports of the occupational physicians Dr Grant Ramage and Dr Tim Hwang. Dr Ramage had concluded that the barriers for Ms Deo in returning to work were primarily psychological and Dr Hwang had made a diagnosis of musculo-ligamentous damage in the neck with complete resolution of pain and his interpretation of the radiology was that there was no significant cervical disc prolapse.
Dr Low made a diagnosis of a chronic pain syndrome with no objective evidence of ongoing physical pathology that could explain Ms Deo’s level of symptoms and disability. He regarded Ms Deo’s prognosis as poor given the inherent nature of chronic pain and the symptom persistence for years. He regarded the range of motion testing in the neck, lower back and lower limbs as being consistent with his observations that they were outside formal testing. Dr Low was of the opinion that psychological factors were impacting on the chronic pain syndrome but declared this to be outside his area of expertise. He concluded that Ms Deo’s employment did not continue to materially contribute to her current condition. He did not believe a return to work program would be successful and considered her unable to participate in a rehabilitation program.
In the supplementary report Dr Low was asked to comment on CT scan performed on 1 February 2011 and further scans of the lumbar spine on 7 October 2013 and 9 October 2013. It was his opinion that the radiological findings did not correspond to the clinical symptoms and maintained his original opinion. He was also asked to comment on Dr Cenap’s report of underlying cervical and lumbar arthritis aggravated by the effects of the MVA and the physiotherapy provided thereafter. Dr Low referred to the report of Dr Hwang of August 2012, reporting that all cervical pain had resolved by 9 August 2012. He agreed that Ms Deo’s psychological conditions were augmenting any pain syndrome.
Dr Low maintained his opinion and opined further that Ms Deo showed abnormal pain behaviour as the physical findings did not match the objective radiological evidence and on distraction of her attention, the physical findings altered. He considered that a multidisciplinary pain management course was unlikely to be of any benefit.
In cross-examination by Ms Serpell, Dr Low informed the Tribunal he had been qualified as an occupational physician since March 2015. He was familiar with the concept of a somatic symptom disorder. Dr Low was asked whether he would alter his opinion if Dr Hwang’s opinion was shown to be incorrect. He responded that Dr Hwang’s opinion that all pain had resolved in 2012 was not the only factor as he would still find it hard to attribute Ms Deo’s current status to a whiplash injury in 2010.
Dr Low was of the opinion that Ms Deo’s failure to participate in activities around the house, particularly home duties, was indicative of avoidance behaviour as most people with such symptomatology persevere through the pain levels. He did not regard a fixation on compensation as being relevant.
Dr Tim Hwang - Occupational Physician
Dr Hwang had seen Ms Deo on 18 June 2012 and reported to the employer DHS on 22 June 2012. When seen, Ms Deo was on a return to work plan, working five hours a day, five days a week with an expectation that she would return to full time work by 1 July 2012. He obtained the already reported details of the MVA of 22 December 2010. The history given was that, by mid-2011, Ms Deo felt she was back to her pre-injury state and ceased physiotherapy. She had minor increased symptoms in October 2011 and had one further attendance on a physiotherapist. There had been another flare up in neck symptoms in November 2011 and physiotherapy in October 2011, including walking on a treadmill, had provoked lower back pain.
At the time of consultation with Dr Hwang, Ms Deo described her neck pain as having resolved. As far as her back pain was concerned this had improved significantly although there was still some mid-line pain in the lower lumbar region. This was said to be intermittent and more severe with prolonged standing or prolonged walking. There was no radiation of the pain. On examination Dr Hwang recorded full ranges of back movement and straight leg raising of 90 degrees on both sides. On full extension of the back Ms Deo did note some discomfort in the mid-lumbar region. The neck movements were also said to be of full range and no local tenderness was elicited. All neurological examinations were normal
Dr Hwang had been provided with the report of the CT cervical spine of 1 February 2011 which showed mild cervical spondylosis and mild canal stenosis but no definite nerve root compression. That report further outlined that no significant prolapse of a disc was revealed, however the radiologist had stated that the lower cervical and C7/T1 levels were suboptimal due to interference from a shoulder.
Dr Hwang’s opinion with respect to the compensable neck injury was that Ms Deo had fully recovered. He considered that the lower back pain was not incapacitating and Ms Deo should be able to perform her normal duties. He declared her fit to return to normal duties.
In the supplementary report on August 2012 Dr Hwang reiterated his former opinion and disagreed with the certificate of Dr Cenap limiting Ms Deo’s driving to a distance of under ten kilometres.
In examination-in-chief Dr Hwang confirmed his opinion and examination findings in 2012 and confirmed that he had not been given a history of any MVAs prior to that of 22 December 2010. He remained of the opinion that, when seen, all Ms Deo’s neck symptoms had resolved and that these had been of a musculo-ligamentous nature.
Ms Serpell challenged Dr Hwang’s opinion on the basis that he did not know how she was before or after he saw her in August 2012. He said that with respect to the period before he saw her, he had relied on the history she had given him and had no way of knowing whether it was accurate or not.
The Tribunal asked whether walking on a treadmill could be the cause of Ms Deo’s lumbar pain. Dr Hwang’s response was that he did not accept that there was a causal relationship, although he had previously said that treadmill walking could aggravate by increasing symptomatology. It did not alter the underlying pathological change.
Dr James Hundertmark – Psychiatrist
Dr Hundertmark saw Ms Deo on 23 August 2016 and provided a report to Comcare on 8 September 2016. He had been provided with the reports and records of the psychiatrists Dr Majoor, Dr Nathar, Dr Spence and Dr Ibrahim and those of the occupation physician Dr Ramage. Dr Hundertmark identified Ms Deo’s major health difficulties as the effect of bullying and harassment in the workplace and secondly the sustaining of whiplash in a MVA that had developed into a significant chronic pain state. Dr Hundertmark indicated that he had obtained the same history in regards to both complaints as outlined in other expert reports.
He recorded Ms Deo’s chronic pain state as experiencing sharp and nagging pain down her back to both sides of her chest, her knees were numbed as was an ankle and she had experienced numbness in both hands. The pain woke her from sleep. Ms Deo had accepted her doctor’s advice that the pain emanated from her neck. When in pain she became irritable and frequently argued with her husband.
Ms Deo had informed Dr Hundertmark that when she was working, she had performed the majority of the work in the CRS office in Sunshine. She was of the opinion that as nothing had been done to assist her she had become depressed. Since being out of the workforce for four years she had done very little.
Ms Deo was of the belief that the Commonwealth has an obligation to retrain her, but she could not access such retraining as her doctor was not prepared to give her a clearance to do so. She described some fleeting suicidal thoughts in the past and regarded life as now being meaningless. She was no longer able to study and had suffered loss of income by not being able to work.
Dr Hundertmark noted that at the time he saw her Ms Deo was taking Dothiepin at 75 mg per day. This he regarded as being a low dose, the recognised gold standard for tricyclic antidepressants being 150 mg per day. He recorded that she was using diazepam (Valium) at least three nights per week to assist with sleep. He was aware of her other medications in the form of antihypertensive therapy, vitamins, Nexium and analgesics including Lyrica. He noted the MVA of December 2012 in which she had sustained cervical spine injuries. He recorded she had not seen a pain specialist nor been involved in multidisciplinary pain management clinic.
Dr Hundertmark recorded a family history of Ms Deo’s father being a farmer in Fiji, not as she had stated to others, a civil servant and diplomat. She said her mother was involved in home duties. She said her father had died of a heart attack in the mid-1990s and her mother died in the 2000s. Both parents’ had been born in India. According to the history given to Dr Hundertmark, Ms Deo had attended both Catholic and Hindu schools in Fiji, where her primary and secondary education had been completed. He was aware of her tertiary study in Australia and the degrees and diplomas and the MBA she had obtained. Ms Deo did tell him of the earlier MVA although the year 2008 was not mentioned.
Ms Deo had confirmed that she had been married for 24 years and said that her husband ran an import/export business as well as working for the Department of Primary Industry. Her daughter reportedly had a biomedical science degree.
On mental state examination Dr Hundertmark found her to be cognitively intact and had judged her to be of above average intelligence. She was centrally focused on her pain and her belief that she had not been adequately supported by her employer. Her mood was flat and she was tearful.
Dr Hundertmark was aware of what she perceived to be bullying and harassment while employed in CRS and that the MVA of 2010 had resulted in whiplash.
Dr Hundertmark made a diagnosis of a widespread chronic pain state, meeting the criteria of a somatic symptom disorder with predominant pain as delineated in DSM-V. He believed the condition was triggered by the MVA and her pain state was in keeping with the known organic aetiology. In addition she suffered from a moderate major depressive disorder recurrent also meeting the criteria of DSM-V. He was of the opinion that her current condition would persist. He believed that there was a degree of illness affirming abnormal illness behaviour but this was consistent with the somatic symptom disorder. He noted that both the perceived bullying and harassment in CRS and the MVA while working with CRS giving rise to cervical pain had been accepted as arising out of her employment but he considered there may also be pre-existing congenital and constitutional issues predisposing her to the development of the somatic symptom disorder.
Dr Hundertmark concluded that the conditions suffered by Ms Deo namely, the somatic symptom disorder and the chronic major depression, had been contributed to by both the car accident and the bullying and harassment.
Dr Hundertmark recommended Ms Deo participate in a recognised pain management program through a major hospital or rehabilitation service. He also recommended that her antidepressant medication dose should be increased to 150 mg and if this was not tolerated she should be switched to a trial of Duloxetine (Cymbalta). He believed Ms Deo would need treatment indefinitely, although a pain management course could alter a subsequent course of her illness. He considered Ms Deo unfit for any type of work and that the prognosis was guarded. Should she not respond to a pain management program he recommended that she be considered for total and permanent invalidity. He concluded that she had become somewhat entrenched in the compensation system and this was a barrier to rehabilitation.
Dr Hundertmark’s giving of evidence before the Tribunal was delayed because of his ill health. He gave evidence by telephone on 21 March 2018. Dr Hundertmark has been in practice as a psychiatrist for 23 years. On questioning by Mr Seit he agreed that Ms Deo’s loss of career and the financial loss of $2,000 a month in income had both contributed to her symptomatology. He did not agree that despite the fact that she ceased work in December 2012 the effect of the bullying was no longer an active or perpetuating factor.
Mr Seit informed Dr Hundertmark of Ms Deo’s whistle blowing activities in 2007, while in the employ of Yes West and in relation to that, she had in 2008 or thereabouts been diagnosed with an adjustment disorder and been referred to Dr Albert Kaplan. Her depression on K10 testing had been 32 out of a possible 50. In response Dr Hundertmark said he had never used the K10 scale as it had been devised for the use of general practitioners as an aid to the recognition of psychiatric disease. As there were no records relating to referral to Dr Kaplan, Dr Hundertmark was unable to comment. He regarded adjustment disorder as being made when there was a slighter than normal increase in certain symptoms and overall considered it a low level diagnosis. He described the making of a diagnosis of an adjustment disorder as lazy psychiatry.
Dr Hundertmark explained that major depressive disorder was a historically long standing psychiatrically diagnosed disorder, whereas an adjustment disorder had been a recent introduction in the United States of America. An adjustment disorder classically gets better after a period of six months, and a chronic adjustment disorder was just a renaming of symptoms that persisted beyond six months.
He was asked to explain abnormal illness behaviour. Dr Hundertmark said it was a term invented by an Adelaide professor of psychiatry. He gave the example of someone ill with flu. The norm was to stay at home, rest and drink liquids whereas if you have the flu and go out, partying and drinking alcohol this equates to abnormal illness behaviour. Illness affirming abnormal behaviour is an excessive amount of these symptoms.
He was asked if these conditions were a conscious act. Dr Hundertmark explained there were two levels, a conscious level which equated to malingering and an unconsciously motivated level equating to a conversion disorder. Any compensation effect was different and did not fall within these categories. In relation to treatment he considered the dose of Dothep at 75 mg as too low, as anything less than 150 mg had been shown to be useless.
Dr Hundertmark was averse to the use of tricyclics and although amitriptyline was used for pain it was, in his opinion, wrongly used. Once more he reiterated his opinion that Ms Deo should be switched to Duloxetine which would have an effect on both the pain and the depression. He would not add Seroquel to the regime as it could be very sedating, resulted in weight gain and therefore would be unlikely to assist Ms Deo.
The Tribunal asked him what level of improvement might be obtained by attendance at a multidisciplinary pain management course. This he assessed as being 25 per cent. Dr Hundertmark was unaware of the south-eastern Asian patient population having a decreased tolerance to Dothep.
In cross-examination Ms Serpell pointed out that Dr Ibrahim described psychopharmacology as being his forte; Dr Hundertmark was asked if he had any experience in this field. In response Dr Hundertmark outlined his role lecturing in psychopharmacology to general practitioners in South Australia and in various courses at Adelaide University. He agreed with Dr Ibrahim that if medication was changed to a SNRI there may be a need for a sleeping tablet but this would be worthwhile if a change in medication relieved her level of depression.
Dr Hundertmark was asked why his prognosis was limited. Interestingly, he expressed his opinion that most psychiatric conditions are life-long. This prompted questions from the Tribunal in relation to Ms Deo as to whether he believed she had a predilection or propensity for developing such a condition. He explained that a genetic link to bipolar disorder and schizophrenia had been determined as had a link in obsessive compulsive disorder. These links had been developed or demonstrated since with the advent of functional MRI imaging and the United States research conducted by implanting electrodes to the mid-brain area which along with MRI functional imaging had revealed an increase in the volume of the third ventricle. The third ventricle is the cerebrospinal fluid containing cavity in the mid-brain.
(Tribunal note: This opinion tallies with the article by Bremner et al., ‘Hippocampal Volume Reduction in Major Depresson’ (2000) 157(1) American Journal of Psychiatry 115, submitted by Dr Ibrahim and showing a reduction in volume of the left limb of the hippocampus in individuals with major depression. The hippocampus forms part of the lateral border of the third ventricle and any reduction in size would be mirrored by an increase in the size or volume of the third ventricle. It is however noted that, in the Bremner article, the changes in hippocampal volume in major depression were considered to be alternatively due to the effects of the major depressive disorder with hippocampal damage or alternatively the hippocampal volume reduction might be present from birth and predispose to the development of major depressive disorder).
DOCUMENTARY EVIDENCE BEFORE THE TRIBUNAL
There is a large volume of documentary evidence provided however, and relevant documentation has been considered above. However the report of Dr Majoor dated 7 March 2013 which along with the report of Dr Ibrahim dated 21 April 2013 would appear to be the only two reports from psychiatrists available when the determination accepting initial liability for a psychological injury was made on 28 May 2013.
As previously reported, Dr Ibrahim has made a diagnosis of major depression (adjustment) with biological and melancholic features.
Dr Majoor in her report of 7 March 2013 made a diagnosis of an adjustment disorder with depressed mood. She advised that, if this had not resolved within terms of achieving a return to work in six months, further review was necessary. Dr Majoor did not see Ms Deo again until July 2015.
Both Dr Ibrahim and Dr Majoor had made their diagnosis based on the criteria outlined in DSM-IV or DSM-IV-TR.
The Determination of 28 May 2013 (T12 of 2015/4726)
This decision was made by a delegate and used the International Statistical Classification of Diseases and Related Health Problems (ICD) determined by the World Health Organisation. It does not refer to the criteria outlined in the Diagnostic and Statistical Manual of Mental Disorders, which is the basis for all of the psychiatric reports in relation to Ms Deo. The delegate, rather than adopting the diagnosis of Dr Ibrahim which was, as previously stated, major depression (adjustment), or that of Dr Majoor which was an adjustment disorder with depressed mood, concluded in the terms of the ICD that she had a major depressive disorder, single episode with a date of injury/onset of 6 February 2012.

The determination advised the treatment claims and time off work claims resulting from the injury had been accepted up to 14 April 2013 inclusive but that any further incapacity claims etcetera would require further supporting medical evidence from the treating doctor or specialist.
RELEVANT LEGISLATION
The following provisions of the SRC Act are relevant to assessing the issues before the Tribunal:
5A       Definition of injury
(1)In this Act:
injury means:
(a)a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.
…
5B       Definition of disease
(1)       In this Act:
disease means:
(a)       an ailment suffered by an employee; or
(b)       an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.
(2)In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:
(a)       the duration of the employment;
(b)       the nature of, and particular tasks involved in, the employment;
(c)       any predisposition of the employee to the ailment or aggravation;
(d)       any activities of the employee not related to the employment;
(e)       any other matters affecting the employee’s health.
This subsection does not limit the matters that may be taken into account.
(3)       In this Act:
significant degree means a degree that is substantially more than material.
14       Compensation for injuries
(1)Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
…
16Compensation in respect of medical expenses etc.
(1)Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.
(2)Subsection (1) applies whether or not the injury results in death, incapacity for work, or impairment.
…
19       Compensation for injuries resulting in incapacity
(1)This section applies to an employee who is incapacitated for work as a result of an injury, other than an employee to whom section 20, 21, 21A or 22 applies.
(2)Subject to this Part, Comcare is liable to pay to the employee in respect of the injury, for each week that is a maximum rate compensation week during which the employee is incapacitated, an amount of compensation worked out using the formula:
NWE – AE
where:
AE is the greater of the following amounts:
(a)the amount per week (if any) that the employee is able to earn in suitable employment
(b)the amount per week (if any) that the employee earns from any employment (including self-employment) that is undertaken by the employee during that week
NWE is the amount of the employee’s normal weekly earnings.
…
24       Compensation for injuries resulting in permanent impairment
(1)Where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury.
(2)For the purpose of determining whether an impairment is permanent, Comcare shall have regard to:
(a)the duration of the impairment;
(b)the likelihood of improvement in the employee’s condition;
(c)whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; and
(d)any other relevant matters.
…
27Compensation for non-economic loss
(1)Where an injury to an employee results in a permanent impairment and compensation is payable in respect of the injury under section 24, Comcare is liable to pay additional compensation in accordance with this section to the employee in respect of that injury for any non-economic loss suffered by the employee as a result of that injury or impairment.
SUBMISSIONS
The Applicant – Ms Serpell
In her submissions Ms Serpell addressed all of the evidence before the Tribunal, in particular that of the treating general practitioner and that of the experts including the treating psychiatrist. It was conceded that the 2008 MVA had caused symptoms but had been a minor accident and all symptoms had resolved with Ms Deo being able to work full time and undertake physical activities such as daily gymnasium exercise, bushwalking and walking to and from work. It was also conceded Dr Cenap’s records indicated episodes of pain arising from arthritis and some reports of left sided sciatica.
Ms Serpell stated that the treadmill episode leading to the development of pain and numbness in both legs had been accepted as arising from the treatment for the cervical spine sprain and that Ms Deo’s harassment and bullying in the workplace had not been challenged. The workplace harassment and bullying evidence was detailed. In addition it was submitted that Ms Deo had denied telling Dr Hwang that her neck and upper back pain had completely resolved by 2012.
The panic attacks reported in 1994, the back injury relating to a desk fall in 2002 and the whistle blower events of 2007 were all addressed but it was submitted no psychiatric disorder had arisen from any of these episodes.
It was contended that the 2010 MVA coupled with the preceding and post-accident harassment at work led to a personality change with an incapacity to perform many of the household duties and activities of daily living and that she had by 2013 required supervision and direction on a daily basis, this being provided by her husband and to an extent by her general practitioner Dr Cenap. The applicant relied on the opinion of Associate Professor Paoletti that she required supervision and direction, noting that he had assessed this as if she lived alone without a resident carer or helper.
It was further submitted that Ms Deo’s current medical condition was compatible with the diagnosis of a somatic symptom disorder and the respondent’s witness Dr Hundertmark was in total agreement that this was the correct diagnosis in addition to that of a major depressive disorder.
It was concluded that the Tribunal should set aside the reviewable decisions and find that the applicant was entitled to compensation for the MRI of the lumbar spine, that she continued to suffer from the neck injury of 22 December 2010, attracting compensation payments under s 16 and s 19 of the SRC Act and that she was entitled to compensation under s 24 and s 27 of the SRC Act for a 25 per cent whole person impairment as assessed under Table 5.1 with respect to the accepted psychological condition. Costs were also requested in favour of the applicant under s 67 of the SRC Act.
The Respondent – Mr Seit
Mr Seit submitted that all six decisions should be affirmed.
Liability for the performance of an MRI of the lumbar spine had been denied and it was submitted that this was the correct decision based on the medical evidence before the Tribunal as this had documented from 2004 onwards the symptoms of lower (i.e. lumbar) back pain, following a domestic fall against a desk with persistence of back pain for some four months; the general practitioner Dr Cenap’s records from 2007 and intermittently thereafter recording the symptom of left sided sciatica and arthritis of the back requiring Brufen; the TAC claim form of 2008 following the earlier MVA reporting spinal and back pain; and Dr Cenap’s entries in his notes, with the entry of 24 September 2010 recording left leg pain due to low back pain.
Mr Seit contended that Ms Deo had not given an accurate past history to the orthopaedic surgeons and neurosurgeons that she had seen. In addition complaints of pain after the motor vehicle accident of 22 December 2010 had been limited to the neck and upper thoracic spine. The contemporaneous records after the MVA made no reference to lumbar back pain. The first time this was recorded was on 11 May 2012 in Dr Cenap’s records.
The alternative claim that her lumbar back pain had arisen from physiotherapy treatment for her neck, in particular that this had been caused by walking on a treadmill, was addressed and based on the medical records. Mr Seit contended that this was unlikely given the evidence of Mr Gardiner and Mr Shannon. Dr Hwang in mid-2012 had found a normal range of lumbar spinal movement, no back pain in that region and that the cervical pain had fully resolved. According to the records, it had not been until October 2013 that she had developed lumbar back pain radiating to the lower limbs. This was three years after she had been involved in the MVA and 12 months after she ceased work.
The second application related to the WPI rating due to psychiatric impairment, this being an application for an increase from the 10 per cent already determined to a 25 per cent psychiatric impairment rating. Mr Seit relied on the evidence of Associate Professor Paoletti and Dr Spence. Despite Associate Professor Paoletti determining a 25 per cent impairment rating he had in his evidence acknowledged that Ms Deo performed all of her own activities of daily living but needed to be reminded of certain tasks such as her medication.
Mr Seit contended that Associate Professor Paoletti had in his evidence concluded that this did not amount to supervision and direction and his estimate was based on risk management criteria for an individual living alone. Similarly, Dr Spence’s opinion had been that Mr Lal supervised his wife and did not direct her and therefore the Table 5.1 level of impairment was 10 per cent.
Mr Seit further submitted that in relation to the impairment rating the Tribunal is required, in accordance with s 24(2) of the SRC Act, to consider the likelihood of improvement in the employee’s condition and whether the employee had undertaken all reasonable rehabilitative treatment for the impairment and any other relevant matters. He contended that Ms Deo had not undergone a reasonable rehabilitative treatment at any stage for her psychiatric illness and that based on the opinions of all psychiatrists other than Dr Ibrahim, she had not had appropriate medication to relieve her chronic pain and depression. In addition a pain management program had been recommended by several experts but had not been instituted.
In relation to the cessation of payment under s 16 and s 19 of the SRC Act for the cervical injury, classified as a musculo-ligamentous strain, it was submitted that the so called whiplash aspect of the motor vehicle injury of 2010 had resolved and that any recurrent pain was a reflection of previous injury and spondylosis, there being well documented MVAs in 1990 and 2008, both of which had involved hospital attendance and the pain persisting after the accidents for up to several months before resolving.
On 18 June 2012 Dr Hwang had recorded a normal cervical spine range of movement and that Ms Deo’s pain had completely resolved. While Mr Gardiner had initially considered the MVA of 2010 as a major factor in the neck pain, once acquainted with the past previous history of neck injury he had modified his opinion.
The fifth and sixth applications lodged in 2017 were for a chronic pain disorder or, in the alternative, a somatic symptom disorder. Mr Seit contended these were based on the applicant’s subjective appreciation of symptoms and did not reflect underlying pathology. As such, it was contended that given the inconsistency of the history and the inconsistency in examination findings as outlined by Dr Low and the unreliability of Ms Deo’s evidence, acceptance of such diagnoses should be subject to caution.
TRIBUNAL’S DELIBERATIONS AND DECISION
The Tribunal’s decision is based primarily on the medical evidence and opinion provided to the Tribunal. This has been outlined at length above and both parties have made submissions as to the weight and accuracy of the evidence.
It is regrettable that many of the expert opinions provided were made on the basis of an incomplete past medical history. The Tribunal also notes that the determination accepting the psychiatric disorder dated 28 May 2013, was an acceptance of a claim for major depressive disorder single episode under s 14 of the SRC Act.
The Tribunal is aware that Comcare uses the International Classification of Diseases and Injuries constructed by the World Health Organisation (WHO) and in particular for psychiatric disorders does not use the Diagnostic and Statistical Manual of Mental Disorders (DSM). All of the reporting psychiatrists, including the treaters, have made their diagnoses in terms of DSM-IV-TR or DSM-V. As the determination was made within two months of Ms Deo first seeing a psychiatrist, the WHO coding attracted, namely a major depressive disorder single episode, was correct. The course of events thereafter would negate this original coding as all of the psychiatrists have considered her psychiatric disorder to be ongoing, severe and poorly responsive to treatment and most favour a diagnosis of a major depressive disorder.
The first claim lodged related to a request for Comcare to pay for an MRI of Ms Deo’s lumbar spine. The basis of the claim was that she had either damaged her lumbar spine in the MVA of 22 December 2010, this having arisen from her employment or had been sustained during the provision of physiotherapy for her accepted condition of neck sprain.
The medical records of Dr Cenap and reports from various hospitals she attended prior to the MVA of 2010, reveal several attendances for lower back or lumbar pain, including, according to Dr Cenap, several presentations with left sided sciatica and numbness in the lower limbs. Dr Cenap’s records document his diagnosis of spinal arthritis from 2007 onwards. The symptoms clearly waxed and waned over the years.
In 2012 Dr Hwang, the occupational physician, found no abnormalities in the range of movement of Ms Deo’s cervical spine, nor her lumbar spine and recorded her statement that all neck pain had resolved. The investigations reveal that spondylosis, a degenerative disease involving both the cervical and lumbar spine and to a lesser degree the thoracic spine. Thus the history is one of recurrent episodes of pain frequently precipitated by injury or some activity but with resolution of the symptoms within periods of months.
The most recent expert opinion has been provided by Dr Low, who believes that the extreme global reduction in the range of movement of Ms Deo’s cervical spine is not compatible with the imaging provided and while Mr Gardiner had concluded that the MVA was the pre-eminent cause of her current pain arising from the cervical and thoracic spinal regions and had provided a whole person impairment based on these orthopaedic components of 22 per cent, he modified this opinion once made aware of the pre-2010 history of neck and lumbar pain with symptoms of radiculopathy in the lower limbs. While it did not change his overall diagnosis, it certainly impacted on the WPI estimation.
Mr Shannon assessed Ms Deo as having pre-existing lumbar and cervical spondylosis which at times become symptomatic but resolved symptomatically with the passage of time. These he considered to be a temporary aggravations of degenerative conditions. His comments were directed mainly to the lumbar spine.
The Tribunal affirms the reviewable decision denying funding pursuant to s 16 for an MRI of the lumbo-sacral spine (application 2015/1052).
Based on the medical evidence of repeated bouts of trauma to the cervical spine and fluctuation of symptoms, with resolution having occurred in 2012 in terms of physical findings and the symptomatology then complained of, the Tribunal affirms the decisions in relation to the cessation of liability for medical treatment and incapacity payments pursuant to s 16 and s 19 of the SRC Act for the accepted condition of cervical sprain (applications 2016/4583 and 2016/4623).
Mr Deo’s application for review of the decision accepting her WPI rating of 10 per cent for the psychological condition was based on Associate Professor Paoletti’s assessment of the degree of impairment as 25 per cent. All assessments before the Tribunal of the WPI for this condition were made in accordance with Table 5.1 of the Guide. The difference in the two degrees of impairment relates to levels of performance relating to activities of daily living, disturbances in thinking and behaviour but predominantly to whether or not there has been a need for supervision and direction of the activities of the daily living.
Associate Professor Paoletti subsequently reduced the total assessment and the fractionation of contribution to psychiatric impairment with his last estimate being a 12 per cent impairment arising from the harassment and bullying events at work and a 6 per cent impairment arising from the MVA sustained in the course of work. He had performed his assessment in accordance with risk management criteria on the basis that Ms Deo lived alone without any assistance. She does not live alone, she has the assistance of her husband and the general evidence was that he did supervise several of her activities, in particular her medication and her tendency to neglect things but there was no evidence that he exercised any direction.
The Tribunal noted that Ms Deo attended seven days of the hearing unaccompanied and while she frequently changed positions, standing and sitting as required and of course had the support of her legal advisors, she did not require any obvious physical assistance.
Associate Professor Paoletti was the first of several psychiatrists to raise the diagnosis of a somatic symptom disorder with predominant pain in accordance with DSM-V and ICD‑10-CM F45.4 which retains nomenclature of somatisation syndrome including undifferentiated somatoform disorder.
Based on the interpretation of Table 5.1 of the Comcare Guide the Tribunal determines that the assignment of a psychiatric impairment rating of 10 per cent for the psychiatric condition, then that of a major depressive disorder, was appropriate in that no evidence was provided that Ms Deo was not capable of performing the activities of daily living with minor loss of personal and social efficiency, that she required directing in her behaviour, or that she experienced even minor distortions of thinking. A rating of 20 per cent requires marked disturbance in thinking and a definite disturbance in behaviour, as well as the need for some supervision and direction in the activities of daily living.
The Tribunal therefore affirms the decision of the 10 per cent whole person impairment rating in respect of the accepted psychological condition (application 2015/4726).
In the Tribunal’s experience it is unusual to have the level of diagnostic agreement that is evident in this matter. All three independent expert psychiatrists, Associate Professor Paoletti, a witness for the applicant, and Dr Spence and Dr Hundertmark, both called by the respondent, agree that the correct diagnoses are that of a major depressive disorder, resulting from the workplace bullying and harassment, and a somatic symptom disorder contributed to by both the workplace events and the physical injuries sustained in the MVA of 22 December 2010. Their opinions were supported by the early results of on-going research in areas such as functional magnetic resonance scanning and brain electrode implantation studies.

All three psychiatrists regard Ms Deo’s prognosis as guarded or poor and that the conditions are highly likely to persist. All three have supported alternative treatment options. The treating psychiatrist Dr Ibrahim was not averse to these suggestions although he doubted they would be effective. The Tribunal determines that these recommendations should be supported and at least trialled despite reservations as to a positive outcome. The options advanced are a trial change of anti-depressant medication and the provision of a multi-disciplinary pain management course.
The Tribunal sets aside the decisions denying liability for a chronic pain disorder and a somatic symptom disorder (applications 2017/3313 and 2017/3314) as the majority psychiatric opinion is that the somatic symptom disorder which embraces the concept of a chronic pain disorder arose out of Ms Deo’s employment. The Tribunal remits these matters to the respondent for reconsideration in accordance with these reasons.

I certify that the preceding 194 (one hundred and ninety -four) paragraphs are a true copy of the reasons for the decision herein of Miss E A Shanahan, Member

................................[sgd]........................................
Associate
Dated: 16 April 2018

Dates of hearing: 27-30 November 2017 & 5-6, 13-14, 21 March 2018

Counsel for the Applicant: Ms Cassie Serpell

Advocate for the Applicant: Ms Kim Sweeney

Solicitors for the Applicant: Angela Sdrinis Legal

Counsel for the Respondent: Mr Roy Seit

Advocate for the Respondent: Mr Nam Nguyen

Solicitors for the Respondent: Sparke Helmore
APPENDIX – LIST OF EXHIBITS
Applicant’s Exhibits
A1                   Statement of Michelle Deo dated 8 November 2016
A2                   Statement of Michelle Deo dated 22 February 2016
A3                   Statement of Michelle Deo dated 27 March 2017
A4Document prepared by Michelle Deo and titled “Summary of Grievances at CRS, Sunshine”

A5 Statement of Mr Lal lodged with the Tribunal on 28 March 2017
A6Further Review Report of Associate Professor Paoletti dated 11 October 2017
A7Supplementary Report of Associate Professor Paoletti dated 12 November 2014

A8                   Report of Dr Cenap dated 19 March 2013
A9                   Ms Deo’s student enrolment history at Charles Darwin University
A10                 Report of Mr Gardiner dated 14 September 2015 including CV
Respondent’s Exhibits
R1                  Five volumes of T-documents
R2                  Extracted reports from Summons documents
R3Extracts from Sunshine Health Medical including cervical spine x-ray and subsequent CT scans

R4                  Extracts of records of Dr Cenap between 2006 and May 2015
R5                  Notes of PhysioWest from period 18 January 2011 until 21 October 2011
R6                  Clinical notes by Dr Tricarico relating to Ms Deo
R7Dr Chan, physiotherapist, report on Ms Deo Page 1 of 2 Printed: 11 April 2018

R8 Report of Mr Michael Shannon dated 3 August 2015

[2018] AATA 890

16 April 2018

Key Legal Topics

Areas of Law

Employment Law

Administrative Law

Negligence & Tort

Legal Concepts

Causation

Statutory Construction

Appeal

Procedural Fairness

Remedies

Dates of hearing:	27-30 November 2017 & 5-6, 13-14, 21 March 2018
Counsel for the Applicant:	Ms Cassie Serpell
Advocate for the Applicant:	Ms Kim Sweeney
Solicitors for the Applicant:	Angela Sdrinis Legal
Counsel for the Respondent:	Mr Roy Seit
Advocate for the Respondent:	Mr Nam Nguyen
Solicitors for the Respondent:	Sparke Helmore