DJLK and Comcare (Compensation)
[2016] AATA 457
•30 June 2016
DJLK and Comcare (Compensation) [2016] AATA 457 (30 June 2016)
Division
GENERAL DIVISION
File Numbers
2012/1055
2013/5012
Re
DJLK
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal Regina Perton, Member
Date 30 June 2016 Place Melbourne The Tribunal affirms the decisions under review.
.......................................................................
Regina Perton, Member
WORKERS’ COMPENSATION – whether accepted shoulder condition still affecting applicant – whether current shoulder condition is still the result of the accepted injury in 2010 – decision affirmed
whether mental health condition arose out of or in the course of employment – whether the result of reasonable administrative action in a reasonable manner – decision affirmed.
Safety, Rehabilitation and Compensation Act 1988 ss 4, 5A, 5B, 14, 16, 36
Commonwealth Bank of Australia v Reeve [2012] FCAFC 21
Hart v Comcare [2005] FCAFC 16
REASONS FOR DECISION
Regina Perton, Member
30 June 2016
DJLK worked for an organisation created under Commonwealth legislation (the employer) from 1989 until 2014. Most of her career was spent in the Information Technology area. (IT) However, she is not a qualified computer professional. A considerable part of her time was spent on the help desk. Later she was given a more technical role. DJLK left the organisation after she was classified as unfit to continue work and is now a superannuant.
DJLK lodged a claim for compensation on 7 June 2010 for sprain of shoulder and upper arm (right) and hand sprain (right) which she stated occurred in the course of her employment between 24 and 27 March 2010. Comcare accepted liability on 18 August 2010. On 15 May 2013 Comcare revoked the determination on the grounds that the condition had fully resolved.
On 14 June 2013 DJLK sought reconsideration of the decision. On 26 July 2013 the review officer affirmed the original decision. On 2 October 2013 DJLK lodged an application to this Tribunal (2013/5102) in respect of the injuries. She claimed that she was still suffering the effects of the sprains.
DJLK lodged a claim for compensation on 21 August 2011 for anxiety, depression & adjustment disorder. She stated that she had first noticed the illness on 26 May 2011. On 26 September 2011 Comcare determined that DJLK was entitled to compensation in respect of adjustment reaction with mixed emotional features. DJLK’s employer requested reconsideration of Comcare’s determination. On 7 February 2012 a review officer of Comcare revoked the determination made on 26 September 2011 and denied liability to pay compensation on the basis that DJLK’s psychological condition was significantly contributed to by reasonable administrative action undertaken in a reasonable manner and is therefore not compensable due to the exclusionary provisions in the governing legislation. On 20 March 2012 DJLK lodged an application to this Tribunal (2012/1055).
The Tribunal considered both applications together. The Tribunal made a confidentiality order resulting in a pseudonym for the applicant. Lay witnesses’ names have been given initials.
RELEVANT LEGISLATION
Section 14(1) of the Safety, Rehabilitation and Compensation Act 1988 (the Act) provides:
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
...
Section 5A of the Act states:
Definition of injury
(1) In this Act:
injury means:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.
(2) For the purposes of subsection (1) and without limiting that subsection, reasonable administrative action is taken to include the following:
(a) a reasonable appraisal of the employee’s performance;
(b) a reasonable counselling action (whether formal or informal) taken in respect of the employee’s employment;
(c) a reasonable suspension action in respect of the employee’s employment;
(d) a reasonable disciplinary action (whether formal or informal) taken in respect of the employee’s employment;
(e) anything reasonable done in connection with an action mentioned in paragraph (a), (b), (c) or (d);
(f) anything reasonable done in connection with the employee’s failure to obtain a promotion, reclassification, transfer or benefit, or to retain a benefit, in connection with his or her employment.
Section 5B of the Act states:
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
Ailment is defined in s 4 of the Act:
ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
Section 16 of the Act provides:
Compensation in respect of medical expenses etc.
(1) Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.
Section 19 of the Act provides for compensation where an employee is unable to work her usual hours due to the workplace injury.
THE RIGHT SHOULDER/ARM/HAND CONDITION
DJLK lodged a claim for compensation on 7 June 2010. DJLK described her diagnosed condition as cervical radiculopathy associated with neck and shoulders pain as well as repetitive strain injury of the right arm and right hand. She stated that the parts of her body that had been injured were right arm, right hand and right shoulder. DJLK indicated that she was injured on 29 March 2010 and that she first sought medical treatment on 7 April 2010. DJLK stated that she had been referred to the Neuroscience Laboratory at Austin Health for nerve conduction studies and had also seen an osteopath.
DJLK stated that at the time she was injured, she was at her desk and described what she was doing as follows:
Enterprise wide virus attack increased calls to IT Helpdesk, Telephone support and system updating i.e. unlocking user accounts and changing passwords.
Asked to describe the action or event which happened to cause her injury, DJLK stated:
Extensive use of right arm caused repetitive strain to hand, forearm, upper arm and into the shoulder
The manager of the Information Technology (IT) branch, KG, signed the employer portion of the claim form on 9 June 2010. KG indicated the employee had been offered alternate or modified duties and that a return to work (RTW) plan had been developed and was awaiting signatures.
DJLK visited her general practitioner, Dr Sam Assad, regularly on and after 7 April 2010. On 11 May 2010 Dr Assad received a report on the results of a CT scan of DJLK’s cervical spine with the findings being:
There is no disc bulging at any level from C2/3 down to C7/T1.
The spinal canal and nerve root canals are normal and there is no space-occupying lesion.
No bone or joint abnormality is present.
Dr Tom Katsapis, osteopath, reported the following to Dr Assad on 4 June 2010:
…DJLK seems to have developed an RSI of her right arm and neck region. It seems her phone at work aggravated the condition and now I think without NSAIDS & 3 weeks off work she will continue to deteriorate. I suggest the above & then a gradual increase in her hrs on the 4th week, with perhaps 3 days a week to start with. I will leave it with you to organise.
The Austin Health Neuroscience Laboratory’s report dated 18 June 2010 concluded:
Electrophysiological studies of the right upper limb are normal, with no evidence of median neuropathy at the right wrist or cervical radiculopathy
On 7 July 2010 Comcare wrote to Dr Assad seeking his view on DJLK’s medical history, diagnoses and other related questions. Comcare also wrote to the employer seeking information about DJLK’s work duties and related issues.
KG replied on 19 July 2010 on behalf of the employer. She described the normal IT Help Desk duties which included telephone and face to face support as well as system administration. Asked to detail any changes to DJLK’s normal duties in the period up to 29 March 2010 and other related questions, KG stated:
…
An enterprise wide Virus attack that occurred 24-26 March 2010 increased calls to the IT Helpdesk which resulted in a higher than normal amount of telephone support and system updating i.e. unlocking user accounts and changing passwords.
The amount of keying and mouse work performed by… [DJLK] on a daily basis.
20% of IT Helpdesk Officer Duties are keying and mouse work, which involves primarily viewing information with limited data entry.
Were… [DJLK’s] duties changed as a result of reporting the injury to her employer?
Directly after the incident was reported … [DJLK] took scheduled leave for 5 working days, and returned on 6 April. At the time of her return the Enterprise wide Virus attack had been rectified and normal duties resumed.
Please detail the normal hours worked by … [DJLK] and any changes (increase etc) to those hours leading up to and/or after 29 March 2010
… [DJLK] works variable part time hours averaging 6 hr 45 minutes per day, to accommodate her family arrangements, which were not altered at this time.
…
DJLK and KG had agreed to a RTW plan on 29 June 2010. Dr Assad and AN, her designated case manager at her workplace, also signed off on the RTW plan on 9 July 2010. The plan had DJLK working for 25% of her regular hours for the first few days, then increasing by 25% each week leading to a return to her regular hours of 6 hours 15 minutes by 19 July 2010. Her work was to be varied in nature and in and she was to alternate between sitting/standing etc and to take a five minute break after every 30 minutes.
Dr Assad replied to Comcare on 28 July 2010. He stated that DJLK had not been referred to specialists as no abnormalities had been detected. He indicated that treatment was conservative and that no surgical intervention is expected. His diagnosis was that his patient suffered from:
Repetitive strain injury involving her right arm and hand associated neck and shoulders pain. In addition to subjective cervical radiculopathy.
Comcare accepted DJLK’s claim on 18 August 2010 for sprain of shoulder & upper arm (right) and hand sprain (right).
The employer advised Comcare on 31 August 2010 that DJLK had returned to her regular hours on 19 July 2010. The employer went on to state:
To ensure no aggravation or exacerbation to her injury, … [DJLK’s} duties continued to be modified and her daily work practices monitored. These processes continue.
On 2 August 2010, … [DJLK] presented a Certificate of Capacity from her treating Doctor stating that she was only able to work 50% of her regular hours from 2 to 20 August 2010.
On 16 August … [DJLK] presented another Certificate of Capacity from her treating Doctor stating she was only able to work 4 hours per day every second working day for the period 16 August to 6 September 2010. A copy of the certificate was faxed to you on 16 August 2010.
Our concern here is the relapse in respect of her injury, ie going from 100% on 19 July to 50% on 2 August and then 4 hours per day 3 days per week from 16 August 2010.
Our other concern is that … [DJLK} may aggravate/exacerbate her injury in her home life. As we are unable to assist … [DJLK] in the management of her injury outside work this claim may have a long continuance.
On 17 September 2010 the employer referred DJLK for rehabilitation assessment under section 36 of the SRC Act with the goal of having the employee to return to full time duties.
On 11 October 2010 DJLK signed off on a Return to Work Plan which was then followed up by an Initial Assessment Report prepared by an ergonomist, SI. Part of the report is reproduced below:
DUTIES:
…
Since returning to work … [DJLK’s] duties have been modified to decrease the level of computer usage and she is now performing a Systems Administration role. This task is more self-paced than the previous role on the Help Desk.
HOURS
Pre-injury. I understand … [DJLK] worked 64.3 hours per fortnight which are part-time hours. Previously, … [DJLK] started work at 8.00am and on some days of the month worked up to or in excess of nine hours per day. Most days she finished at 3.10pm to allow her to pick up her child from school.
RECOMMENDATIONS
A proposed return to work program has been developed which will be discussed with … [DJLK] and her treating doctor…
The program incorporates the following:
…
I have recommended a program of incorporating breaks as … [DJLK] informs me she is not taking regular breaks and this is affecting her injury. She will work for approximately 50 minutes before taking a 10 minute break. I would recommend she changes her posture during this 10 minute break and does not continue sitting or using a computer. Up to five hours per day does not require a meal break however beyond five hours requires a half hour unpaid meal break.
Whilst on a return to work program … [the employer] has requested … [DJLK] start at 8.30am each day as assistance is available at this time from other staff members as well as a supervisor being present. In addition, there are few other staff who start at 8.00am and … [DJLK] may be inadvertently asked … to perform duties outside her return to work program. Once … [DJLK] has returned to normal duties and hours without restrictions then her start time can be re-negotiated and … [the employer] has indicated she could then return to an 8.00am start.
On 12 October 2010 Comcare wrote to DJLK advising that it was accepting liability for consultations with her general practitioner, specialist, osteopath, massage therapy and related pharmaceuticals. Comcare advised it would accept liability until 2 December 2010.
On 4 November 2010 the RTW program was modified at Dr Assad’s request. He recommended a reduction in working hours to three hours every second day with a ½ hour increase each week until his patient returned to her normal working hours. Dr Assad approved the duties listed in the RTW plan. SI also mentioned in his progress report that Dr Assad stated that DJLK had been assessed by a specialist who was unable to identify a cause or reasons for DJLK’s discomfort and felt it most likely it was soft tissue in nature.
Dr Stuart Turnbull, Senior Medical Advisor – Occupational Health provided a report to the employer dated 28 February 2011. Dr Turnbull had been asked to undertake an assessment of DJLK’s fitness for employment. In his report, he provided an employment and education history as well as a medical history. As part of a medical history, he stated that DJLK told him she had developed thoracic back pain about 16 years earlier. She had been on secondment to an area she was not keen on and her back pain was exacerbated due to the amount of standing there was in that job. Dr Turnbull reported that whilst things improved after she was transferred to the IT Department, she still suffers from back pain from time to time. She has continued with physiotherapy and acupuncture in relation to her back. DJLK told Dr Turnbull that the back pain is bearable and had been for many years but in recent times it had been getting worse again. She told Dr Turnbull that there was no diagnosis of prolapsed disc or any other pathology on scans.
In relation to the injury under investigation, Dr Turnbull’s summary is as follows:
SUMMARY:
… [DJLK] is a 45-year-old lady with chronic pain. Over the past 16 or so years, she has had chronic thoracic back pain for which there is no diagnosis made. She now complains of chronic right hand, arm and forearm pain and despite investigation no cause has been found. She remains on restricted work duties.
In answer to your specific question, I have the following responses.
SCHEDULE OF QUESTIONS
1. … [DJLK] was referred to a specialist by her treating doctor. Following a number of consultations and tests, she has not provided a diagnosis and has not recommended treatment. There is no review planned. In your view, what is the likely medical condition leading to … [DJLK’s] discomfort?
… [DJLK] has chronic pain. She has had investigations and has been examined by a surgeon and I understand that MRI and EMG tests were normal although I have not seen the documentary evidence. The diagnosis is chronic pain syndrome as there is no known physical cause. There is no recommendation for ongoing treatment and nor should there be any review by the surgeon.
2. . … [DJLK] has not shown any signs of improvement since reporting the discomfort in April 2010. Is there any treatment which could be considered which may assist?
The patient has undertaken various physical treatments with minimal effect. I do not consider that any physical treatment is likely to be beneficial. Psychological counselling may be of assistance and perhaps a referral to the workplace EAP may be useful.
…
Dr Lawrence Cher, neurologist, prepared a report for Dr Assad on 12 April 2011, parts of which are cited below:
Thank you for asking me to review … [DJLK], a R handed woman aged 46, who presents with a history of thoracic back pain and more recent R upper limb pain. She dates the pain to April 2010, and it started at a time when a computer virus attacked the computer system. She was left by herself to answer the phone and she was recurrently answering calls for 3 to 4 days continuously…. After that the pain was quite severe and she was in a lot of pain. She has had ongoing pain in the R arm since then. She took two weeks off work at one stage and the arm was better, but she was not doing housework or driving.
The pain is localised over the shoulder which is tight, and there is pain radiating down her arm and can have a burning component to it. The pain is worse when using the computer. She says she can be awakened at night with pain….
She has nerve conduction studies, CT and MRI of cervical spine which are all normal.
She has seen Craig Timms who could find no neurosurgical cause. She has seen a Medibank Health Solutions doctor, Dr Stuart Turnbull. He recommended she returned to full time work.
…
She is currently on Mobic 7.5 mg daily. It helps modestly. …
On examination she was alert and oriented. Visual fields were full and fundi were normal. The remainder of her cranial nerves were intact. She was tender on the right side over the cervical facet joints. She had no Horner’s syndrome.
There was no wasting or fasciculations noted in the upper limbs. Tone and power was normal when compensating for pain. Reflexes were intact and sensory examination was normal. There were no long tract signs in the lower limbs. Co-ordination was normal.
Thus, she has a regional pain syndrome which may in part be related to her cervical facet joint issues.
I think she would benefit from cervical manipulative physiotherapy… However, this does not explain the pain in her right upper limb. There are no features to suggest Chronic Regional Pain Syndrome 1, formerly known as Reflex Sympathetic Dystrophy. “Repetitive Strain Injury”, is a difficult diagnostic issue and is not a clear diagnosis.
I have suggested also a trial of Endep 10mg initially building up to 30mg nocte. I think she would also be best served by having a multidisciplinary input from a chronic pain clinic. I have had discussion with her and she does seem genuinely keen to improve from her current situation. I will plan to review her again in two months time to see how she goes with the Endep.
…
On 15 April 2011, SI prepared a further progress report, part of which is reproduced below:
A recent meeting was arranged with … [DJLK] and her treating doctor to discuss the report from Dr Stuart Turnbull. As you are aware, this report made a number of recommendations including an increase in hours and options for treatment including psychology.
The issue of psychology referral was discussed with the doctor and he also strongly recommended this is an option. … [DJLK] however feel she does not have time to attend a psychologist and will only consider attendance if this is during her normal work hours, not in her own time and not during the hours she is paid by Comcare currently where she is not working. Dr Assad made the referral and gave … [DJLK] details of a female psychologist he recommends. It is not expected … [DJLK] will attend. She is however continuing with her chiropractic and physiotherapy treatment on a regular basis.
The hours of work were discussed with the doctor in light of recommendations and a graded program was presented to the doctor and … [DJLK] which gradually increased … [DJLK’s] hours over a period of approximately 3 months returning her to her pre-injury part-time hours. Through discussion however … [DJLK] indicated she does not wish to increase hours and discussed her inability to undertake her family and home duties and that she does not have the ability to increase hours due to her change in family commitments…
Duties were discussed with … [DJLK] as she indicated that attending work caused an increase in pain. She also found driving her vehicle caused an increase in pain. I discussed with … [DJLK] the fact that she drives her son to school each day then catching a train to work. Increasing her work hours would not alter the amount of driving she performs. … [DJLK] also raised the issue that computer work was not the issue but sitting was the primary problem. As a result I offered alternative duties which did not involve computer work and would allow her to vary posture more regularly. However, … [DJLK] does not wish to leave IT and would not consider other duties as an option.
RECOMMENDATIONS
This latest visit to the treating doctor with … [DJLK] has highlighted the issues as being psycho-social in nature. As a result of lack of progress with respect to hours of work I am recommending a Case Manager from Comcare who is responsible for … [DJLK’s] return to work attends a review with all involved parties to ascertain a plan for further progress. I would also recommend on a temporary basis that duties outside of IT are identified to assist … [DJLK] with her return to work and reduce perceived aggravation.
On 19 April 2011 Dr Assad contacted Comcare to say that his patient needed to continue having physiotherapy and remedial massage weekly. He suggested a review in four months.
A further RTW plan was prepared in mid May 2011.
On 30 May 2011, a few days after the St Vincent’s hospital emergency admission in relation to the psychological illness, Dr Assad issued a Certificate of Capacity stating that DJLK was unfit to attend work from 30 May 2011 to 3 June 2011 because of her shoulder and arm condition.
On 27 June 2011, Comcare wrote to Mr George Foenander, clinical psychologist, seeking further information about his dealings with DJLK in relation to her shoulder/arm/hand condition. Mr Foenander provided a certificate dated 29 June 2011 in which he certified that DJLK had been referred to him by Dr Assad for psychological management of a Chronic Pain Syndrome and a Chronic Adjustment Disorder With Mixed Anxiety And Depressed Mood, both of which have emanated during the course of her current employment. He stated that DJLK had attended on 24 May 2011 and 28 June 2011. On 4 July 2011 he stated that DJLK had attended again that day and is still unfit to continue in her normal occupation.He indicated he would provide a detailed report shortly.
On 21 July 2011 Mr Foenander provided a report to Comcare. His prognosis was:
The long term prognosis for return to her work and future treatment is guarded in view of the history so far, and the allegations of on-going harassment and bullying in the workplace.
She is currently unfit for her pre-injury level of employment due to her pain and physical limitations, and current psychological illness.
Her main incapacity would be a combination of physical and psychological contributions to her pain problems.
The extent of the duration of her incapacity is uncertain at this stage.
On 31 July 2011 SI prepared a Closure Report. He stated that with respect to DJLK’s shoulder injury, she had returned to her normal working hours and different duties within IT thus successfully attaining the original goal. He stated that DJLK had recently had time off work as a result of psychological issues but this was not related to the original referral for occupational rehabilitation. He pointed out that a separate intervention may be required in the future with respect to the more recent issues.
On 8 August 2011 Mr Foenander provided a certificate stating that DJLK had attended that day and that she remained unfit to continue in her normal occupation.
Dr Assad issued a further Certificate of Capacity on 9 August 2011 stating that his patient was suffering from cervical radiculopathy associated with neck and shoulders pain in addition to repetitive strain injury of right arm and wrist. He stated she was unfit for work for the following month.
On 10 August 2011, Comcare’s delegate wrote to DJLK stating:
…
In summary, your treating psychologist, Mr Foenander has provided a diagnosis of Adjustment disorder with mixed anxiety and depressed mood, in accordance with DSM-IV. Your treating psychologist has also provided an opinion to the development of your adjustment disorder, being the history of workplace bullying and harassment.
Having assessed the medical evidence available on your claim file, I am not satisfied on the balance of probabilities, as opposed to possibilities, that the current condition of adjustment disorder is related to the your physical condition sustained on 7 April 2011.
Subsequently, I determined compensation is not payable for adjustment disorder with mixed emotional features under section 14 of the Safety, Rehabilitation and Compensation Act 1988 …
Please note that I have enclosed a new claim full for you to consider lodging in relation to your adjustment disorder, should you be of the opinion that your employment has contributed to the development of the condition.
The Comcare delegate also advised DJLK on that day that Comcare would continue to meet the costs of her treatment for consultations with her general practitioner, psychological counselling, osteopathy, massage therapy and relevant pharmaceuticals until 4 November 2011.
On 21 August 2011 all relevant parties signed a Comcare document closing the RTW plan.
On 8 September 2011, Dr Assad prepared a medical report for Comcare in which he stated:
…
DIAGNOSIS AND PROGNOSIS
… [DJLK] has been suffering from cervical radiculopathy associated with neck and shoulders as well as repetitive strain injury of right arm and right hand. Her condition has been recently complicated with chronic pain syndrome as a result of work related stress disorder, anxiety neurosis.
Her psychological condition has delayed and complicated the recovery from her repetitive strain injury. Furthermore, it has caused the development of a chronic pain syndrome.
The clinical features that support my clinical assessment is the persistence of her pain involving her neck, right arm and shoulder despite of her gradual to work program and light duties task that she has been doing at work.
The prognosis of her condition is very bad. The reason is her physical injury is compounded by her psychological impairment.
On 6 February 2012 DJLK submitted a physiotherapy management plan seeking reimbursement of hydrotherapy in relation to right shoulder pain and dysfunction.
On 26 March 2012 solicitors recently appointed to act for DJLK sought information from Comcare as to what incapacity payments their client was entitled to and other related matters.
On 11 April 2012 Dr Assad wrote to Comcare stating that DJLK still needed fortnightly osteopath treatment, hydrotherapy and remedial massage for the next four months. On 26 April 2012 Dr Assad sent a referral to Mr Foenander suggesting DJLK still required psychological counselling for a further four months in relation to her chronic pain disorder and stress disorder.
On 6 July 2012 the employer wrote to Comcare stating that DJLK had been receiving osteopathy, hydrotherapy and remedial massage treatment for in excess of 12 months. The employer queried whether the treatment should continue given DJLK had not been at work since 1 August 2011. In particular the employer queried why Comcare approved psychological counselling in May 2012 against the shoulder claim when the delegate had determined on 10 August 2011 that he was not satisfied that the condition of adjustment disorder was related to the physical condition sustained in the claim made on 7 April 2010.
On 30 August 2012 Dr Assad wrote to Comcare stating that DJLK was still in need of hydrotherapy classes twice a week, fortnightly chiropractic treatment and massage in relation to her shoulder injury for a further four months. On 13 September 2012 Dr Assad sought Comcare’s approval for an MRI in relation to DJLK’s right arm.
On 25 October 2012 the employer queried the appropriateness of Comcare’s decision to pay for further medical treatment and an MRI as requested by Dr Assad. The employer pointed out that DJLK had returned to work on her pre-injury hours through a graduated RTW plan. The employer also commented that Comcare had initially accepted liability for the psychological injury sustained on 27 May 2011 but then revoked that decision following a request for reconsideration by the employer.
The employer also provided Comcare with historical correspondence in relation to a claim made in 2002. Mr Foenander was treating DJLK in 2002 for pain management and stress that is work related. Mr Foenander stated, in a report to Comcare dated 25 July 2002:
… [DJLK} is attending this Clinic for pain management and stress that is work related. She is showing gradual improvement to treatment. However the recent proposed shift to new premises and changes to the floor plan where others will be behind her seems to be aggravating her current symptoms.
This is because her neck and shoulder pain is aggravated by her Bracing and Guarding which is a psychophysiological protective response to her pain and stress. This has now been conditioned to situations where anyone present behind her or moving about behind her triggers off a conditional response of further bracing and guarding with increased pain and stress.
It is recommended that consideration be given to her recent requests to remedy this matter.
Further correspondence from Mr Foenander to Comcare on 2 August 2002 indicated that DJLK had attended that day and that her condition appeared to have worsened because the current work stressors had not been resolved. He stated that she had been diagnosed as suffering from Chronic Pain Disorder and an Adjustment Disorder with Depressed Mood and anxiety, which appeared to have arisen during the course of her employment. He stated that recent work related issues with respect to her seating arrangements had aggravated the current illness.
On 30 October 2012, DJLK underwent an MRI in relation to her cervical and thoracic spine. In a report addressed to Dr Assad, Dr Christine Goh determined that in relation to the shoulder:
No rotator cuff tear.
Mild to moderate subacromial bursitis and mild acromonioclavicular joint degenerative change.
No cervical foraminal stenosis or evidence of C6 nerve root compression.
Left thyroid nodule, probably cystic. This would be better assessed with ultrasound.
On 8 November 2012 Comcare asked Dr Assad for an updated medical report regarding DJLK and her accepted compensation claim for sprain of shoulder & upper arm (right) and hand sprain (right). There were a number of questions to which answers were sought.
On 23 December 2012 Dr Clive Kenna, impairment assessor, provided a report to Comcare concerning the shoulder/arm/hand injury. Dr Kenna diagnosed DJLK as suffering from fibromyalgia rather than chronic pain. In relation to DJLK’s prognosis, Dr Kenna stated:
The prognosis has to be considered poor in view of the nature of the relapsing condition, the current presentation, the overall strong feeling of grievance pertaining to her perceived treatment, all of which has resulted in substantial stress and anxiety and raise the overall level of muscle tension. I believe it is unrealistic to be expecting her to return to work at this point in time. I note her general practitioner considers she is unfit for work and one doesn’t gain the impression from either the enclosed documents or the clinical presentation on the day that she has, can or will demonstrate a work capacity.
In relation to questions about the relationship with employment, Dr Kenna stated;
In contrast to the history given, I believe that her employment [as at April 2010], that is the computer virus, may have been the instigating factor but clearly the ongoing problems with regards to personnel management and relationships were the major instigating factors which explain the chronicity as that stressor is unresolved to this day at least in her mind.
…
Although she presented initially with musculoskeletal symptoms, there is no doubt the overall psychosocial stressors have played a substantial role in exacerbation and irritability of the condition.
…
From a musculoskeletal point of view, I don’t believe the incident on 7 April 2010 is any longer contributory to her current clinical presentation, as I note she also made a successful full return to work by 31 July 2011.
Dr Kenna’s Clinical Comment at the end of his ten page report was:
At 47 years of age, …[DJLK] presented with right upper quadrant symptoms indicative of classic fibromyalgia type presentation.
I consider from the nature of the onset of the condition on 7 April 2010, that is when there was a computer virus, that there is no ongoing work related connection to that date. I believe now her current clinical presentation is related to a range of emotional and psychosocial factors which have been alluded to in the reports enclosed.
That being the case, I consider from a purely physical perspective of musculoskeletal injuries, I am unable to confirm the ongoing presence and nature of any specific work-related condition or injury sustained from 7 April 2010. I consider any initial soft tissue injury has since resolved and bears no relationship to those activities per se, that is sprain of shoulder, upper arm and hand.
Dr Assad provided a report to Comcare on 27 January 2013 in which he maintained the same diagnosis as in previous reports. He mentioned results from an MRI on 30 October 2012 which showed moderate and chronic subacromial bursitis in the right shoulder. He stated that the condition was getting worse. Dr Assad also maintained that DJLK’s current condition was related to 4 hectic days in a row in relation to the computer virus and repetitive actions in answering calls and keyboarding. He stated that DJLK was unfit to undertake any rehabilitation program.
On 21 February 2013 Comcare advised DJLK that the medical evidence suggests that any current need for medical treatment or time off work is not due to your compensable “sprain of shoulder & upper arm (right) and hand sprain (right). DJLK was given the opportunity to provide further medical evidence by 22 March 2013 to challenge the delegate’s proposed finding.
DJLK sent a critique of Dr Kenna’s medical report to Comcare on 25 February 2013. On 13 March 2013, DJLK requested an extension of time to respond to Comcare’s letter dated 21 February 2013 and this was granted until 30 April 2013.
On 3 April 2013, A/Prof Martin D Richardson, orthopaedic surgeon, sent a report to Comcare in which he stated that:
… [DJLK] was seen in my rooms …on the 27/3/2013 having been referred to me by Dr Assad regarding her right shoulder.
An MRI performed of the right shoulder did not reveal a rotator cuff tear. Mild to moderate subacromial bursitis and mild acromioclavicular joint degenerative change were noted. There was no cervical foraminal stenosis and no evidence of right C5 or C6 nerve root compression.
On examination there was a global restriction of movement of the right shoulder with flexion to 120degs, abduction to 60degs, external rotation to 50degs and internal rotation reaching the buttock level.
I believe … [DJLK] has developed a frozen shoulder syndrome and she requires a RIGHT SHOULDER HYDRODILATATION.
The hydrodilatation would be performed by a Radiologist in a radiology department as an outpatient.
Could you please advise acceptance of this procedure.
On 15 May 2013, Comcare advised DJLK that it would not approve the hydrodilatation. The delegate also advised DJLK that Comcare had determined that she had no present entitlement to medical expenses or incapacity payments in relation to the shoulder/arm/hand condition.
On 16 May 2013 Dr Assad applied to Comcare for a further four months of hydrotherapy for his patient.
On 14 June 2013 DJLK’s then solicitors applied to Comcare for reconsideration of its decision concerning the shoulder/arm/hand.
On 18 June 2013 Comcare advised the employer of the request for reconsideration and gave the employer an opportunity to present comments should it wish to. On 24 June 2013 the employer responded endorsing Comcare’s decision to cease compensation payments for the shoulder condition. The employer’s comments included the following:
…
… [DJLK] had returned to pre-injury duties under this claim through a graduated return to work program. For all intents and purposes her claim was closed.
… [The employer] also asks Comcare to take into consideration the points raised in the following paragraphs:
We disagree with many of the issues raised in the letter from … [DJLK’s] solicitors to Comcare of 14 June including:
Reliance on the report of Dr Kenna. … [DJLK] was examined by Dr Kenna for the purposes of assessing her current condition. The findings of Dr Kenna are consistent with the views of the … [employer] in that “any initial soft tissue injury has resolved and bears no relationship to those activities per se, that is sprain of shoulder upper arm and hand.”
It has been 3 years since the initial injury and for almost 2 of those 3 years … [DJLK] has not worked. It is therefore difficult to share the view of Professor Richardson that any current condition which … [DJLK] may have is directly related to her employment.
The suggestion by Dr Assad that any current issues with … [DJLK’s] right arm are as a result of repetitive use, continuous use of the mouse and keyboard and difficult workload…. [DJLK] was not a prolific use of a mouse or keyboard. She was employed in the IT Department as a Help Desk Officer and did little in the way of clerical duties. There was a spike in workload over 3 days prior to her injury (24, 25 & 26 March 2010 and not 4 days as claimed), but the workload was distributed amongst the team of 4 with the more senior members carrying the bulk of the load. … [DJLK] used a telephone lifter and headset and was simply required to press a button on the headset to answer calls. By using a headset, … [DJLK] didn’t have to cradle a telephone handset in her neck.
There have been sufficient medical assessments of… [DJLK] which indicated her issues under this claim have resolved so there is no requirement for a further assessment to be made.
…
On 26 July 2013 a Comcare review officer affirmed the determination that there was no further liability for the 2010 claim. On 2 October 2013 DJLK applied for review to the Tribunal through a different firm of solicitors to those previously assisting her.
On 8 December 2013 Dr D Saddik provided the results of an MRI of the right shoulder taken on 4 December 2013 to A/Prof Richardson with the comments:
1. Minor diffuse tendinosis of the supraspinatus and infraspinatus tendons, without a discrete tendon tear. The rotator cuff muscle bulk is preserved.
2. Minor subacromial bursitis. Moderate degenerative change of the AC joint.
3. No labral tear
On 13 December 2013, Dr Kenna provided a fresh report to the employer on DJLK after an examination on 2 December 2013, almost 12 months since his previous assessment. Under the heading Key Points, Dr Kenna stated:
The facts relating to this case are primarily laid out in my initial assessment of 18 December 2012. Since then there has been no substantive change which is what one would normally expect, as is clearly also the view of her treating general practitioner, Dr Sam Assad.
The claimant presented with what is classic myofascial type presentation. This is essentially stress and psychologically induced and in no way has a physical component. Indeed, we discussed this in greater detail on this occasion as I was more confident in talking to the claimant as compared to the initial assessment when she presented as a highly stressed/emotional individual.
She has some insight into her overall presentation in that the pain she feels physically is in fact emotionally driven and puts it down to the personal circumstances which had been reiterated in other documentation forwarded to me i.e. with regards to the bullying claim.
She therefore believes that she has never received appropriate” justice” pertaining to that matter and that has played on her mind ever since and therefore there is yet to be a satisfactory closure.
Nevertheless, pertaining to any physical injury, there is none. She does not have any specific work-related injury. Her presenting symptoms are psychologically and emotionally driven due to increasing levels of tension and stress with a resultant increase in trigger points, tautening of muscles and some degree of background discomfort.
Dr Kenna then gave answers to specific questions. He repeated his diagnosis that DJLK has chronic pain secondary to fibromyalgia. Asked about the prognosis for DJLK’s current condition, he responded:
The prognosis is very poor. I believe there is little prospect of her returning to work, particularly as long as in her own mind matters are unresolved.
Dr Kenna did not consider that DJLK was voluntarily exaggerating. He did not believe her condition was specifically related to her employment from a physical perspective, namely the events of late March 2010 although the events of May 2011 may be relevant. Asked if he considered that DJLK was medically fit to engage in work for the employer, Dr Kenna stated:
As noted in my earlier report, the general practitioner considers she is unfit to work.
Her perception is that she of course is also unfit to work and that would be the case until the case is closed or in her perspective unresolved matters have come to a satisfactory conclusion.
Nevertheless I personally believe, as noted previously, she is capable of working on a part-time basis potentially in office activities that were not particularly repetitious but she now has a very low pain threshold and this is part of the syndrome and therefore I consider she would quickly claim work-related exacerbation.
Dr Kenna’s Conclusory Comments were:
… [DJLK] is now 48 years of age and continues to present with stated symptoms of an absolutely classic fibromyalgia type presentation.
She was even more upset on this occasion when recalling how she feels she has been treated, particularly by one individual.
From a purely physical perspective of musculoskeletal injuries, she is complaining of claiming musculoskeletal pain. I am unable to confirm once again the ongoing presence and nature of any associated work-related conditions per se.
I consider the initial soft tissue injury from the nature of the work has long since resolved and the current clinic presentation is somatic manifestation of stress related condition.
Hence with regards to general fitness for duty, from a physical perspective there is no physical incapacity…Her general practitioner considers she is totally unfit. I understand the reasons for such but is simply substantially not of any musculoskeletal work related nature.
On 24 January 2014, Dr Daniel Lewis, rheumatologist and consultant physician, provided a report to the employer’s solicitors. Dr Lewis diagnosed DJLK’s condition as a chronic regional pain syndrome. He agreed with Dr Kenna’s assessment except for the nomenclature. In relation to Dr Assad’s description that DJLK suffered from cervical radiculopathy associated with neck and shoulder pain as well as a repetitive strain injury of the right shoulder, arm and hand , Dr Lewis stated:
There is no history nor are there recorded any clinical signs to suggest cervical spine radiculopathy.
The terms repetitive strain injury is a non-medical term and in the past has been used to describe the onset of diffuse regional pain. The term regional pain disorder is a more accurate description at (sic) the primary symptom is pain without demonstration of any specific injury. In this regard Dr Assad’s opinion appears to be an appropriate description of her presentation.
…
MRI scanning is a highly sensitive test in which there are significant false positive and false negative findings. There is also very poor correlation between the MRI scan findings and the clinical condition. It is only by undertaking a clinical examination that correlation can be made with the clinical findings. The report of Dr Assad in 2010 indicated normal shoulder examination. Subacromial bursitis is a painful condition usually associated with defined clinical signs.
At my examination today there were no clinical signs consistent with the diagnosis of subacromial bursitis. An MRI-based diagnosis cannot be relied upon to make a clinical decision in the absence of an appropriate examination.
…
There is no evidence to support the use of osteopathic and massage therapies in this condition. Psychiatric and psychological treatment is reasonable …
…
Medical evidence indicates that the most appropriate treatment for chronic regional pain is a multi disciple (sic) pain management and functional restoration program based on biopsychosocial principles
… [DJLK] is a right-handed woman who developed diffuse shoulder and arm pain in the setting of a stressful work situation in March 2010. Over time she has developed a chronic regional pain syndrome which has resulted in progressive functional disability. She has the physical capacity to undertake a functional restoration and pain management program and to participate in a graded return to work schedule.
On 21 February 2014 Mr Kenneth Brearley, surgeon, provided a report to DJLK’s solicitors at their request. In his report he described the history of the injury as:
…
She says that she had no problems until she suffered an injury to her neck and right arm in April 2010. She says a virus attack occurred on the computer and she was obliged to use the landline and a wireless phone and type while taking messages. She says that for four days she worked excessive hours and during this period she was having to bring her right hand to her ear several times a minute to press the button and activate the phone and this highly repetitive movement caused her to develop pain in the neck and right shoulder and arm. She says her right arm became swollen.
…
In relation to DJLK’s status at the time of examination, Mr Brearley stated:
CURRENT STATUS
She says she has ongoing pain in the right shoulder which remained stiff and she has limitation in use of the right arm. She also has pain in the right side of the neck. She says she is now starting to have problems with the left shoulder and arm as a result of overuse.
She says she is quite unable to work because of her arm injury and also because of her psychological reaction. She feels she could not do any light work because of the limited use of the right arm. She says when she moves the right arm she has pain and any repetitive movements of the hand cause pain.
…
CURRENT TREATMENT/MEDICATIONS
She has chiropractic once a fortnight, alternating with massage. She takes medication for her neck and arms but she is unable to recall the names.
RESTRICTED ACTIVITIES
She is unable to do her housework and this is done by her mother. This includes the vacuuming, sweeping and mopping. She sees her husband at weekends only as he works in Bendigo. She has difficulty doing the cooking and food preparation.
She is unable to enjoy her usual hobbies of sewing and painting and she cannot play badminton or cricket.
PAST MEDICAL HISOTRY
In July 2001 she put in a claim for upper back pain. She says she had little if any time off work. She continues to have ongoing problems with her upper back that liability has now been rejected for that.
…
EXAMINATION
She is a pleasant and anxious woman of medium build….
Neck
There is tenderness over the whole of the back of the neck. There is slight limitation of movements in all directions.
Right Shoulder
There is no deformity or wasting. There is limitation of movements. Flexion is to 90°, extension is to 30°. Abduction is to 90° and adduction is to 40°. Internal rotation is to 60° and external rotation to 80°.
The remainder of the right arm appears normal. Sensation is normal throughout the arm.
…
OPINION
1. Diagnosis
i) Cervicobrachial the injury comprising soft tissue injury of the neck and subacromial bursitis of the right shoulder with resultant frozen shoulder syndrome. Physical examination shows very marked organic limitation of all shoulder joint movements.
ii) Severe psychological reaction resultant from the physical injury and also resulting from prominent bullying in the workplace. She has developed a serious stress disorder with anxiety and depression.
2. Relationship to Employment
The injury to her neck and right shoulder occurred as a result of the very repetitive movements of the right arm required when the IT desk arrangements broke down and she had to turn to a manual system. This did demand most rapid movements of the right arm as described above in the history.
In addition to this clear organic injury, she has suffered psychological stress as a result of bullying at work which was relentless and she is developed severe anxiety depression. The psychological condition is a major factor in her present disablement.
3. Fitness for Work
She is clearly unfit for her former work. I do not believe she would be able to do lighter or part-time work at this stage. Certainly she cannot use the right arm to any significant extent. She would not be able to usefully simply use her left arm. This together with her severe psychological reaction is preventing her return to any form of work.
4. Further Treatment
She does need ongoing physical treatment particularly physiotherapy and hydrotherapy for assistance in shoulder mobilisation. She needs ongoing psychiatric treatment.
5. Prognosis
Unless the bullying person is removed from the workplace, it is doubtful whether she will be able to return to previous place of employment. Perhaps eventually a shift to a different area or department would be worthy of consideration. In the meantime, because of the great stiffness of her right shoulder and difficulty in using her right arm, she remains unfit for work. It will be several months or more before she is able to contemplate a return to part-time work. Eventually she should regain full movements and then she could probably return to her former job, however, this remains to be seen.
6. Disability/Impairment
She has definite disability and impairment at the present time.
…
DJLK gave oral evidence about the increased workload on the day the computer virus hit the organisation. She described how difficult it was for her. She said that she had been asked by her supervisor not to go out at lunch time but rather to have lunch at her desk. DJLK said that she usually brought her lunch from home and had done so on the day of the virus attack.
DJLK described problems with her phone and the need to press a button on her headset with her right hand to answer and end calls. DJLK said that by the third or fourth day after the crisis started her arm was sore. She said that she had been told it took three or four days to clear up the virus related problems. She conceded she was on annual leave on that fourth day. DJLK said it was her doctor who told her that her right shoulder and arm problems were due to the repetitive nature of her work. DJLK said her back condition, which she had suffered from for many years, also got worse around that time. DJLK said the work on the Help Desk suited her as she would see clients face-to-face in many instances and she could move around a bit.
DJLK said that when she returned from annual leave of around 10 days, her shoulder felt very tight and that there was a knot tight on my arm. She also described pain from somewhere between her elbow and wrist and down to the base of her thumb. DJLK said her hand was swollen. To deal with the problem, DJLK said she started to use her left hand but that after a while she experienced the same symptoms in her left shoulder and arm.
DJLK said that her manager, KG, encouraged her to put in the claim in relation to her injury. DJLK recalled taking about three weeks off after seeing her doctor and the osteopath because of the pain in her arm. It was DJLK’s view that she had never returned to the hours of work she undertook prior to the injury. She said that when she came back to work she was doing different duties to those she was doing prior to the injury. DJLK stated that she found work difficult because on her return she still had to deal with DK, her supervisor, who was a fellow IT team member prior to being promoted. She stated that issues she had with DK and his alleged bullying led to the psychological condition which is her other claim being dealt with concurrently with the shoulder/arm/hand problem.
DJLK said on the first day of the virus crisis, she received a number of calls from colleagues saying that they were locked out of the computer system. The IT section was initially not sure of the cause but eventually figured out it was a virus.
In relation to the shoulder/arm/hand injury, oral evidence was also taken from Dr Assad, Dr Kenna, Mr Brearley and Dr Turnbull. As can be seen from the written evidence, these doctors and others cited above disagreed as to the appropriate diagnosis of DJLK’s condition at the time that they examined her.
In oral evidence the doctors generally confirmed the opinions that they had given in their reports. During Mr Brearley’s oral evidence, he conceded that a full range of shoulder movement as reported by Dr Lewis was incompatible with a diagnosis of frozen shoulder.
The Tribunal is required to determine whether the conditions for which Comcare had originally accepted liability, namely sprain of shoulder and upper arm (right) and hand sprain (right), were still a cause of DJLK’s ability to work on and after 15 May 2013.
In Certificates of Capacity issued between 7 June 2010 and 18 August 2011, Dr Assad described DJLK’s injury as cervical radiculopathy associated with neck and shoulder pain as well as repetitive strain injury of the right arm and right hand. He acknowledged that no abnormalities had been detected and described the cervical radiculopathy as subjective in a report dated 28 July 2010.
Dr Turnbull diagnosed chronic pain in February 2011. He noted that there was no apparent physical cause. Dr Cher diagnosed regional pain syndrome, again with no physical cause in April 2011. In September 2011 Dr Assad was maintaining the diagnosis of a physical injury namely cervical radiculopathy associated with the neck and shoulders and RSI of the right arm and right hand. In December 2012 Dr Kenna diagnosed DJLK as suffering from fibromyalgia. He stated that any initial soft tissue injury had resolved by then. Dr Lewis generally agreed with Dr Kenna regarding the resolution of the soft tissue injury by the time he saw her in January 2014.
Comcare submitted that the weight of evidence supports the conclusion that on and from 15 May 2013, DJLK was not incapacitated for work as a result of a physical injury to her right shoulder, upper arm and hand. The Tribunal concurs. On 15 May 2013 DJLK was certainly unwell but it was not from the accepted physical condition for which she was granted compensation.
The Tribunal finds that DJLK’s incapacity for work as from 15 May 2013 was not the result of her accepted sprain of shoulder and upper arm (right) and hand sprain (right). She is therefore not entitled to compensation under the Act in respect of incapacity for work or for reimbursement of complementary therapies expenses in relation to the accepted conditions after 15 May 2013 as those conditions ceased to be the cause of her pain well before that date.
The Tribunal affirms the decision under review in relation to sprain of shoulder and upper arm (right) and hand sprain (right).
THE PSYCHIATRIC CONDITION
In her claim form for compensation dated 21 August 2011, DJLK stated that she was first injured on 26 May 2011. She stated that she had been diagnosed with anxiety, depression and adjustment disorder. DJLK stated that she first sought medical attention at the emergency care centre of St Vincent’s Hospital on 26 May 2011. She stated that she first contracted the illness during a meeting with I.T. staff. DJLK stated that she experienced stress, felt dizzy and developed chest pain during the meeting. She stated that she had been bullied and harassed by her team leader. DJLK stated that her general practitioner had referred her to a clinical psychologist, Mr George Foenander and that she had undertaken counselling as treatment.
An undated employer Statement of Facts was provided to Comcare in response to its request dated 30 August 2011. The employer stated, amongst other things:
1. The employer … does not admit that the employee has a work related injury or illness and states that ... [DJLK]’s statement is not accurate.
The employer agrees that the employee whilst at work was unwell on 26 May 2011 and presented at St Vincent’s Hospital at 12:40. The employee was discharged at 19:52 with no on-going treatment. The diagnosis was said to be a ‘panic attack’. Since 26 May 2011 the employee has submitted numerous certificates of capacity with each certificate stating that the employee was not fit for work due to shoulder pain. Despite the fact that is [sic] has been some 2.5 months since the ‘panic attack’ the first reference to the claimed anxiety neurosis issue is raised in her last certificate of capacity dated 18 August.
The employer denied that DJLK had been bullied or harassed. The employer also described DJLK as having performance issues and described how it had dealt with them. The employer also described attempts that it had undertaken in an effort to develop a better working relationship between DJLK and her immediate supervisor, DK. The interactions of the rehabilitation manager who had been dealing with DJLK in relation to her earlier claim were summarised as were her dealings with her supervisor and his manager in the period between 2 October 2010 and 2 August 2011.
On 8 September 2011 Dr Assad, DJLK’s general practitioner, provided a report to Comcare at its request. Dr Assad stated that he had been DJLK’s family doctor since January 2006. She had been a patient of that clinic since May 2002. He said he had first seen DJLK in relation to the psychological condition on 27 May 2011. Dr Assad reported (text as written):
…
…[DJLK] reported in this consultation that she was taken by ambulance on the 26/05/11 to the ST Vincent hospital emergency with severe chest pain, palpitation and dizziness. The attending medical officer assessed her and concluded as per discharge summary of the hospital report thaat no physical cause was found for her symptoms and he recommended to refer her for full psychiatric assessment as she was diagnosed with severe panic attack, anxiety neurosis.
…[DJLK] stated that since the start of her onset of symptoms on 26/5/11, she has been suffering from disturbed brocken sleep, tearfullness, fataigue, forgetfulness, laking concentration, constant worries, apprehension, tension headaches, chest palpitation associated with palpitation at some occasions and depressed mood.
…[DJLK] related the cause of her symptoms to work related stress that has been accumulating until reached it’s peak on 26/05/11 when she felt physically unwell and she was rushed to ST Vincent hospital emergency….
Furthermore, she added that she has been exposed to bullying, harassment, intimidation thereatening and discriminatory actions by her team leader that has been escalating until she developed her presentation with panic attack on the 26/05/11…
DIAGNOSIS
…[DJLK] has been diagnosed with anxiety neurosis, panic attacks, reactive depression and adjustment disorder. As you probably aware that her mental illness… is exlusively based on the clinical history given by the claimant.
Insomnia, tearfulness, fatigue, forgetfulness, lack of concentration fit the criteria for reactive depression. Whilst tension headaches, chest pain, palpitation, dizziness, constant worries, phobias and apprehension fit the criteria for panic attacks, anxiety neurosis and adjustment disorder to failure of her stress coping strategies.
…[DJLK] denied any similer or pre-existing medical condition prior to her claim. Moreover, I have no documented pre-existing medical condition or any underlying mental problem predating her claim onset.
…
On 26 September 2011 Comcare accepted that DJLK suffered from an ailment that was contributed to, to a significant degree, by her employment by the Commonwealth agency. That ailment was described as adjustment reaction with mixed emotional features.
Comcare still accepts that DJLK suffers from a psychological condition that constitutes an ailment and that the ailment was contributed to, to a significant degree, by her employment and is therefore a disease as defined by section 5B of the Act.
Taking into account the evidence before the Tribunal from her treating health practitioners and DJLK’s evidence and submissions, the Tribunal also accepts that DJLK’s employment was a major contributor to the development of her psychiatric condition. The Tribunal is satisfied that DJLK suffered an ailment as defined in Sections 4, 5A and 5B of the Act.
In her claim for compensation, DJLK described the circumstances that led to her eventual diagnosis with the mental illness. She provided numerous examples where she felt that her colleague and later team leader, DK, harassed, intimidated and bullied her culminating in a final incident in late May 2011 when she was rushed to hospital following a one-on-one meeting, which followed a team meeting.
On 15 November 2011 DJLK’s employer sought reconsideration of Comcare’s decision to grant compensation for her mental illness. The employer submitted that the disease had been suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment and that it should therefore not be compensable. The employer’s solicitors provided a lengthy submission which included
…
12. On behalf of our client we contend that the alleged incident on 25 May 2011 when the performance of … [DJLK’s] duties came under consideration and discussion, was the precipitator of an aggravation to an underlying condition of “adjustment reaction with mixed emotional features” …
13. Further that the discussion on 25 May 2011 between … [DK] and the applicant was between supervisor and a team member about the team members performance. The discussion was given as constructive feedback about that performance to help her improve her work outcomes and was given in a reasonable manner…
14. The attached statements … support the submission that the Applicant ’s work performance was not adequate and needed constant monitoring and management. In that context the Applicant’s allegations were made against … [DK] after he was appointed her permanent supervisor from August 2010. In those circumstances it was appropriate and reasonable for …[DK] to discuss with the applicant her work performance…
15. Therefore, any psychological condition or aggravation thereof suffered by …[DJLK] as a result of the incident on 25 May 2011 resulted from reasonable administrative action taken in a reasonable manner in respect of her employment (on the basis that the work performance was the subject of reasonable informal counselling) within the meaning of subsection 5A(2)(b) of the SRC Act.
16. The medical reports of Dr Foenander of 21 July 2011 and Dr Assad of 18 September 2011 recognise that the applicant’s psychological condition did not manifest itself until 26 May 2011 and (Dr Foenander) that the precipitating event was a discussion relating to the Applicant’s work performance with her team leader on 25 May 2011…
…
19. Even if therefore it is considered that the Applicant sustained an injury in her employment over a more lengthy period rather than just an aggravation on the 25 May 2011, the matters complained of allegedly giving rise to such an injury occurred in the context of performance management or counselling. Such injury (if any) are therefore resulted from reasonable administrative action conducted in a reasonable manner within the meaning of subsection 5A(2) of the SRC Act…
20 …[The employer] recognised before October 2010 that the interpersonal relationship between the Applicant and the team leader… might be improved with some mediation which was carried out on 1 October 2010. Subsequently seven training sessions with an external consultant were conducted with the Applicant and her supervisor either individually or jointly commencing on the 22 day of December 2010 and concluding on the 20 day of May 2011.
21. The consultant … completed a report dated 6 October 2011 indicating inter alia that the applicant seemed to have difficulty understanding what was being discussed and misunderstood instructions to carry out work tasks. Further that the applicant’s supervisor had gone to great lengths to try and modify his approach to the applicant in order to achieve better work outcomes. These matters confirm that … [the employer] in caring for its work in the course of its performance management of her, were acting in a reasonable manner.
…
Detailed recently signed statements from DJLK’s supervisor, DK, and from KG, the manager of the IT department were attached. Statements were also provided by a previous supervisor (MW) and another colleague working in IT, SA. The consultant who was engaged by the employer to help DJLK and DK develop a more productive and effective relationship also provided a statement.
Comcare informed DJLK of the request for reconsideration on 22 November 2011 and was invited to comment on its contents. She did so in a 21 page response dated 30 December 2011 with 37 attachments. It is not practical to reproduce or summarise her commentary within these Reasons for Decision given the level of detail. In general, DJLK criticised and/or disagreed with much of the content of the statements attached to the request for reconsideration lodged by the employer. The attachments to DJLK’s response to Comcare included written performance assessments, referee reports from the early 1990s, various emails and other documents DJLK deemed relevant.
On 7 February 2012, Comcare’s review officer decided to revoke the determination dated 26 September 2011 and deny liability for an adjustment reaction with mixed emotional features. The review officer determined that an informal counselling session on 25 May 2011 with DK constituted reasonable administrative action undertaken in a reasonable manner.
On 20 March 2012, an application for review was lodged with the Tribunal.
In her written and oral evidence in relation to both of her claims, DJLK cited many complaints she had about DK and others, but particularly about DK. These included:
·DK had made her work through lunch in March 2010 when the virus crisis occurred. She was singled out for such a direction.
·DK required her to start work at 8.30 am instead of her preferred start of 8.00 am while she was on the graduated RTW program for her shoulder/hand/arm condition.
·DK would not allow DJLK to take rostered days off while she was on the graduated RTW program
·DK would motion to her to come and talk to him by using his fingers in a beckoning motion which offended her
·DK was at a lengthy meeting and on his return asked her what she had been doing all morning
·DK and KG required her to complete a task tracking exercise to assess how long tasks took and what work she had done throughout the day
·The unreasonable manner in which DK conducted the one-on-one meeting with her after the team meeting on 25 May 2011
The Tribunal heard evidence from DJLK about her many concerns about DK’s conduct. DJLK also obtained witness statements from two former colleagues, FT and PM and they both gave oral evidence. Comcare provided updated statements from DK and KG and they both gave oral evidence. DJLK’s perceptions of events and the recollections of DK and KG about those interactions differed. It was also clear that the preferred communication styles of DK and DJLK were often not compatible.
As indicated earlier, Comcare submitted that while DJLK did suffer a psychiatric injury to which her employment made a significant contribution, the cause of that condition was multifactorial and included matters that would attract the exclusionary provisions set out in ss 5A(1) and 5A(2) of the Act. Comcare submitted that was so because the case of Hart v Comcare [2005] FCAFC 16 is relevant in this matter. The Full Federal Court held that, provided that a disease is suffered as a result of any of the circumstances specified in the exclusionary proviso in the definition of injury in the Act, that disease is not an injury, and it is immaterial whether that disease is also suffered as a result of any other employment-related circumstance. Therefore it is sufficient that the relevant condition is suffered as a result of any of the circumstances specified, and it is not necessary that that disease be suffered solely as a result of any of those circumstances.
The Tribunal is satisfied that there were multiple work-related issues occurring before and at the end of May 2011 which contributed to DJLK’s disease. The medical evidence from her treating medical professionals, Dr Assad, Mr Foenander and Dr Datta, her psychiatrist, confirmed that view. An independent psychiatrist, A/Professor Paoletti, also provided confirmation by way of written report and oral evidence that it was not just the events of late May 2011 that caused DJLK’s disease..
Comcare suggested that several of the events about which DJLK complained were reasonable administrative actions. These included the one-on-one session between DK and DJLK, the task tracking exercise and the requirement that she start work at 8.30am rather than 8.00am whilst on the RTW program in relation to her shoulder/arm/hand condition. Comcare submitted that those actions met the requirements of subsection 5A(2) of the Act and the general principles set out in Commonwealth Bank v Reeve ([2012] FCAFC 21. The Tribunal accepts that those requirements and events could be classified as administrative actions.
The Tribunal had oral and/or written evidence from DK, KG and SI as to why the decision to impose a later starting time than DJLK’s preferred 8.00am start was taken made. There was concern that DJLK not be alone in the section so that there would be other staff around to assist her should there be requests for assistance from the employer’s staff in other areas who would be unaware of DJLK’s limitations and restricted duties as the result of the RTW program in relation to the shoulder/arm/hand injury. There was evidence that neither DK nor other IT team members would normally be in the office before 8.30 am.
DJLK had been given permission to start at the earlier time by a past supervisor. She said that she preferred to start earlier than the other staff because she was more likely to get a seat on public transport while travelling to the city than if she left later. However the direction to start at the later time was part of the written RTW program that DJLK and Dr Assad had agreed to (see paragraph 29). DJLK was advised that once she finished the graduated RTW program she would be able to resume the earlier start.
The Tribunal is satisfied, on the balance of probabilities, the imposition of a later starting time while DJLK was on a graduated RTW program was a reasonable administrative action taken in a reasonable manner in respect of DJLK’s employment.
As stated earlier, only one of the multiple causes of DJLK’s employment related disease needs to be a reasonable administrative action for her not to be eligible for compensation (Comcare v Hart).
The Tribunal therefore is not required to analyse whether all other events which DJLK cited as leading to her present condition constituted reasonable administrative actions taken in a reasonable manner.
The Tribunal finds that DJLK’s adjustment reaction with mixed emotional features does not come within the definition of injury in the Act and she is not entitled to compensation.
DECISION
The Tribunal affirms the decisions under review.
113. I certify that the preceding 112 (one hundred and twelve) paragraphs are a true copy of the reasons for the decision herein of Regina Perton, Member
...............................................................
Administrative Assistant
Dated 30 June 2016
Dates of Hearing
8, 9, 10, 18 December 2014
16, 17, 18 March 2015
4 May 2015
Counsel for the Applicant
Louise Martin
Advocate for the Applicant
Paul Burke, Elias Hanna
Solicitors for the Applicant
Taylor and Preston Lawyers
Counsel for the Respondent
Cathy Dowsett
Advocate for the Respondent
Solicitors for the Respondent
Lazarus Dobelsky
Moray & Agnew
Key Legal Topics
Areas of Law
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Employment Law
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Administrative Law
Legal Concepts
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Statutory Construction
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Judicial Review
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Jurisdiction
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Natural Justice
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