DJVD and Comcare (Compensation) - [2020] AATA 4614

DJVD and Comcare (Compensation) [2020] AATA 4614 (13 November 2020)
Division:GENERAL DIVISION
File Number: 2018/1066
Re:DJVD
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Dr Stewart Fenwick, Senior Member
Date:13 November 2020
Place:Melbourne

The Tribunal sets and aside the decision under review dated 6 December 2017 and in substitution decides as follows:
(a)from the close of business 13 September 2017 DJVD is no longer entitled to compensation in accordance with s 14 of the Safety, Rehabilitation and Compensation Act 1988 arising from the condition aggravation of neuralgia, neuritis, and radiculitis, unspecified (right), aggravation of degeneration of intervertebral disc (right), and aggravation of intervertebral disc disorder – cervical region (right);
(b)from the close of business 13 September 2017 to the present date and at the present date DJVD continues to suffer from the effects of Major Depressive Disorder and is entitled to compensation under s 16 and s 20 of the Safety, Rehabilitation and Compensation Act 1988; and
(c)the Tribunal directs that within 14 days of the date of this decision each party may apply to the Tribunal for orders in relation to costs and, if not agreed, either party may apply to the Tribunal for the costs to be taxed.

[sgd]……………………………………….
Senior Member
Catchwords
COMPENSATION – determination to cease liability for compensation under Safety, Rehabilitation and Compensation Act 1988 (Cth) – whether applicant continues to suffer the effects of the compensable injuries – injury affecting cervical spine – major depressive disorder – whether applicant’s physical symptoms a result of underlying degenerative change – whether applicant’s psychiatric condition continues to be contributed to, to a significant degree, by her employment – decision under review set aside and substituted
Legislation
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Cases
Australian Industry Development Corporation v Boyd [1990] FCA 96
Australian Telecommunications Commission v Tzikas [1985] FCA 385
Canute v Comcare [2006] HCA 47
Commonwealth of Australia vKeith Colville Smith [1989] FCA 189
Eaves v Blaenclydach Colliery Company Ltd [1909] 2 KB 73
Prain v Comcare [2017] FCAFC 143
Salisbury v Australian Iron and Steel Ltd (1943) 44 SR (NSW) 157
REASONS FOR DECISION
Dr Stewart Fenwick, Senior Member
13 November 2020
BACKGROUND

DJVD applied to the Tribunal in an Application dated 1 March 2018 for review of a decision of Comcare dated 6 December 2017. The Application being filed late, an extension of time was sought and the Respondent consented. This decision affirmed an earlier decision on 12 September 2017 determining that Comcare had no present liability for DJVD’s physical and psychological conditions.
DJVD lodged a claim on 7 May 2002 in relation to a work-related injury she described as occurring in July 2001. DJVD reported in this claim right upper and lower arm pain and weakness, right elbow and shoulder blade and pectoral pain. Comcare accepted liability for a cervical spine condition and declined to accept liability for a right shoulder injury.
DJVD subsequently applied for compensation for physical conditions arising from an incident at work on 10 November 2009. Comcare accepted liability on 9 July 2010 for: aggravation of neuralgia, neuritis, and radiculitis, unspecified (right); aggravation of degeneration of intervertebral disc (right); and, aggravation of intervertebral disc disorder – cervical region (right).
On 10 May 2011 Comcare accepted liability for a ‘secondary’ psychiatric condition arising from the 2009 incident. In this decision the condition was described as aggravation of major depressive disorder, recurrent episode.
In the decision under review, Comcare determined that any ongoing symptoms from the physical conditions were a result of underlying degenerative change, and that DJVD’s psychological symptoms were no longer related to her 2009 claim, but were caused by other factors.
The incidents giving rise to DJVD’s compensation claims were experienced in her employment in administrative and customer service roles with Centrelink in Perth, Western Australia. DJVD left school at 15 and following work experience elsewhere, commenced employment with the agency in 1998 at the age of 20. DJVD retired on invalidity grounds in September 2015, and agreement was also reached on compensation for permanent impairment in respect of her psychological condition.
Comcare lodged a Statement of Facts, Issues and Contentions (RSFIC), T documents and Supplementary T (ST) documents with the Tribunal. A further bundle identified as RT documents was lodged prior to the hearing. The following additional material was received during the hearing:
(a)a bundle of subpoena documents (Exhibit R1);
(b)a claim for compensation by DJVD dated 7 May 2002 (Exhibit R2);
(c)reports of Mr Fredrick Phillips, dated 29 March 2019 (Exhibit R3) and 9 July 2020 (Exhibit R4); and
(d)reports of Dr Gemma Edwards-Smith, dated 26 October 2018 (Exhibit R5), and 4 August 2020 (Exhibit R6).
A Statement of Facts, Issues and Contentions was lodged on the Applicant’s behalf (ASFIC) and during the hearing the following material was received:
(a)statements of DJVD dated 22 August 2019 (Exhibit A1) and 16 January 2020 (Exhibit A2);
(b)report of Dr Nick De Felice, dated 29 November 2018 (Exhibit A3); and
(c)report of Mr Barrie Slinger, dated 17 December 2019 (Exhibit A4).
The hearing was conducted by video over four days between 25 and 28 August. Evidence was given by DJVD and the medical specialists listed above.
LEGISLATION
Liability for compensation arises under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (the Act) in respect of an injury suffered by an employee that results in death, incapacity for work, or impairment.
Injury is defined in s 5A of the Act to encompass both injuries that arise ‘out of, or in the course of, the employee’s employment’, including an aggravation thereof, and a disease suffered by an employee. Disease is defined in s 5B(1) to be an ailment, or an aggravation thereof, ‘that was contributed to, to a significant degree, by the employee’s employment’. Significant degree is defined in s 5B(3) as ‘a degree that is substantially more than material’.
Under s 5B(2) of the Act a number of matters may be taken into account when determining whether the ailment, or its aggravation, meets the causal test in s 5B(1):
(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.
The specific forms of compensation relevant to this matter are compensation for medical treatment ‘obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances)’ under s 16, and compensation to an employee incapacitated as a result of an injury where an employee is retired and in receipt of a superannuation pension under s 20.
EVIDENCE
DJVD
Examination-in-chief consisted of the adoption by DJVD of her two written statements (Exhibits A1 and A2). Exhibit A1 is a brief statement addressing, primarily, the 2009 workplace incident and pain and treatment experienced by DJVD since that time. In this statement DJVD provides the following evidence:
(a)in November 2009 she received a box from a courier and immediately felt pain in her neck, returned to her desk with the box and went on to advise management about the incident;
(b)DJVD took time off work, underwent physiotherapy, lodged a claim for the incident in March 2010, was placed in a different role and subsequently had workplace assessments conducted, and continued to be placed under pressure with her duties;
(c)she was placed on anti-depressants in late 2010, continued to take time off work, took an overdose of pain medication and in 2011 was admitted as an inpatient for mental health treatment;
(d)her neck symptoms have not improved since 2009 and she has continually sought treatment for her pain and psychological symptoms, including consulting the Sexual Assault Referral Centre in 2018 in relation to an incident in her childhood.
Exhibit A2 is more comprehensive and also addresses additional workplace incidents. In this statement DJVD provides the following evidence:
(a)her parents separated when she was young and she left school at 15 taking a series of administrative and clerical jobs;
(b)when working in a law firm (accepted in cross-examination as probably in 1985) she was required to move some hessian sacks of archived files and in doing so experienced neck pain. In cross-examination she stated she had a week off work and some physiotherapy and experienced no further symptoms;
(c)she married in 1988, gave birth to her daughter in January 1990 and in May of that year separated from her husband. She continued to work in a series of clerical jobs prior to commencing with Centrelink in 1998;
(d)she experienced a right shoulder injury, possibly in April 2000, when trying to take a box off a shelf and other than possibly receiving some physiotherapy could recall little about the incident. In cross-examination DJVD appeared to accept the incident may have been late in 2000;
(e)she lodged a claim form in May 2002 (Exhibit R2) for an incident described as ‘working at the computer for extended periods’ (R2, p 13) and in cross-examination DJVD stated she experienced pain both at work and at home performing a range of domestic duties and had continued for 18 years;
(f)in around October 2002 she was involved in a car accident and experienced pain in the upper back and left side of her neck. In cross-examination she stated she was doing the speed limit at the time (60 kph) and the impact caused her car to spin around ‘a couple of times’. The pain resolved following physiotherapy;
(g)she continued to work but with ongoing pain and experienced periods off work or with modified duties including reduced workload, her tasks included keyboard work and client engagement by phone. She underwent a number of workplace assessments and various treatments by way of rehabilitation. Sometime in 2006 she was feeling suicidal as a result of ongoing pain and had sessions of treatment through the employee assistance scheme;
(h)in November 2009 she received a box (approximately 30 cm x 25 cm x 10 cm) bearing a ‘heavy’ sticker from a courier containing glossy brochures. She carried the box to her desk and experienced ‘increased’ pain in her neck, reporting the incident to management;
(i)she lodged a claim form for this incident in March 2010 and was subsequently transferred to another team doing data entry and was offered some flexibility in work performance. However, DJVD felt under pressure from her supervisor to perform;
(j)in October 2010 she was prescribed anti-depressants, subsequently ceased work and took overdoses. Her inpatient treatment included multiple electro-convulsive therapy (ECT) treatments;
(k)she described constant pain and restriction in neck movement, numbness in her neck and right arm, and states she is unable to afford the treatment on her current pension.
The following additional evidence arose in cross-examination, including with reference to a form completed on intake at the Bentley Clinic, a mental health facility, in 2011 (R1, pp 1- 6):
(a)DJVD stated that she grew up in her mother’s care after her parents separated and now lives in a subdivided property with her mother as a neighbour. Her sister and half-brother live interstate;
(b)confirmed witnessing domestic violence in the home as a child, and personally in an incident with a boyfriend who later became her husband, and an incident of sexual abuse at the age of 15;
(c)with respect to the 2000 incident and 2002 claim, DJVD confirmed her description of this pain as arising from both work-related tasks and also from domestic activity involving her right arm. The pain has been continuous for 18 years, arose in all types of work activity and continued at home;
(d)she reported on the intake form a family history of mental health problems, and that she herself had psychiatric treatment as an inpatient and outpatient, and acknowledged multiple episodes of self-harm, attempted suicide and overdoses;
(e)was unable to recall many details regarding aspects of her history reported when enlisted for a clinical trial on social anxiety (R1, p 158) including a panic attack at age 15, but recalled treatment at the Bentley Clinic;
(f)the experience of her compensation claims was a concern to her and her life as a single parent was difficult. She received 60% of the value of her house after separation and child support for her daughter. DJVD considered she lives under financial pressure.
In re-examination DJVD accepted the clinical trial was in relation to panic disorder and stated she had experienced panic attacks as well as anxiety and depression. She considered the symptoms experienced in panic attacks and depression to be different.
I note that no material relating to the 2000 incident, other than the 2002 claim form, was lodged by Comcare. However, Comcare’s original determination in relation to the 2009 claim (T16, p 86) cites a medical opinion as follows: ‘The current condition is an exacerbation of the pre-existing, well documented chronic neck problem which dates back to at least 2001 and has been accepted in terms of a previous claim under the heading “intervertebral Disc Disorder Cervical Region Right”’.
Medical witnesses
Dr Nick De Felice
In his evidence Dr De Felice, Consultant Psychiatrist, confirmed that he provided reports dated 17 February 2014 (R1, pp 75-87) and 29 November 2018 (Exhibit A3). The following is a brief summary of these reports:
(a)DJVD suffers from a major depressive disorder that is ‘chronic and somewhat treatment resistant’ and she has a history of anxiety disorder and panic disorder dating back to 1990;
(b)medical records from 1997 refer to ‘depression recurrence’ and scores from a clinical test pointed to moderate depression;
(c)employment significantly contributed to her condition, initially due to pain and then after a change of roles due to there being no prospect of relief, harassment, and the stress of the compensation process;
(d)there is no doubt that her past mental health history and personality issues are relevant and rendered her more vulnerable to the workplace stressors;
(e)her condition has stabilised and is permanent.
Dr De Felice stated that he is a leading expert in the administration of ECT and stated further that, in his opinion, DJVD continued to suffer from the same episode of depression she experienced when he first saw her in 2014 (and which she had suffered from about 2010 (A3, p 6)). In Dr De Felice’s opinion it is not controversial to consider DJVD’s psychiatric state ‘secondary’ to her other medical conditions (it can ‘run its own course’ separate to the initiating condition (A3, p 7)).
Dr De Felice’s opinion was that DJVD’s mental health condition arose not just because of pain and the limitations arising from pain, but due to being forced to work with ongoing pain, the loss of role, and the stress of the compensation process. Dr De Felice stated that she had a period of neck pain with no depression, but the depression perpetuated itself due to these additional factors. While DJVD seemed to have adapted to the pain, the depression had a marked impact and, as a chronic illness, it can be incapacitating. In his opinion the depression can also intensify and ‘colour’ the experience of pain. While DJVD has had extensive treatment, her condition requires ongoing treatment to remain stable, and Dr De Felice wished it had been more effective in alleviating it.
In cross examination Dr De Felice stated that he did not support the view proposed by Dr Edwards-Smith that DJVD experienced a continuum of symptoms from the 1990’s. There was also no support found in the documentation of a diagnosis of major depression prior to 2009. The notes of the Bentley Clinic cannot be interpreted as indicating an episode of depression, and the clinical trial DJVD was involved with required the exclusion of depression as a condition of participation. Dr De Felice stated that even if it is assumed DJVD did have prior major depressive disorder this, as with her episodes of anxiety, had resolved prior to the 2009 incident
Dr De Felice stated that a standard course of ECT is 8-9 treatments and DJVD has had numerous courses. Short term memory is ordinarily affected and with more treatments long term memory is also affected.
Dr De Felice accepted that major depressive disorder is multifactorial and that a family history, as in the case DJVD, can be a factor. Developmental factors such as disruption in relationships can also be a factor, and he had noted a range of relationship issues in his reports. In Dr De Felice’s opinion, other factors in DJVD’s past and her personality functioned to ‘prepare the soil’ for the emergence of her major depressive disorder, but it would not have emerged without the neck condition.
In Dr De Felice’s opinion other factors including her treatment for sexual assault and her mother’s ageing are relevant for perpetuating her condition, but she has never recovered since 2009. Even were her neck pain to resolve, Dr De Felice did not think her psychiatric condition would resolve. His opinion was that her depression is so chronic it is very difficult to shift – her experience of depression ‘frankly overwhelms all other factors’.
In re-examination, Dr De Felice agreed that DJVD was predisposed to a severe form of depression due to all of the accumulated factors in her case.
Mr Barrie Slinger
Mr Slinger, Orthopaedic Surgeon, confirmed that he provided a report dated 17 December 2019 (Exhibit A4). In his report Mr Slinger stated as follows:
(a)DJVD reported experiencing pain in her neck depending upon the activity, and also pins and needles and tingling in the upper right arm. Pain when severe is 6-7 out of 10 and at other times 4;
(b)no tenderness found in the cervical spine, restricted neck movements and referred pain on the right side (shoulder and upper arm), no evidence of neurological deficit in either upper arm, with full painless movement;
(c)extensive radiology reports dating between 2001 and 2011 (A4, pp 6-7) included:
(i)no abnormality (September 2001 and October 2002);
(ii)right shoulder tendinopathy and some joint degenerative arthropathy (December 2003);
(iii)at C4/5 a right-side disc protrusion impinging on the exiting right C5 nerve root (October 2005);
(iv)multilevel degenerative changes through the cervical spine with foraminal narrowing bilateral at C4/5 and C5/6 (November 2007);
(v)marked narrowing of the right C4/5 neural foramen and possible impingement at C5/6 and C6/7 (May 2010);
(vi)chronic disc osteophytic complexes on the right C4/5, moderate impingement at C5 right nerve root and mild spurring at C5/6 and C6/7 (March 2011);
(d)the consensus appears to be that symptoms from 2001 onwards were related to the cervical spine and possibly the disc protrusion identified in 2005, and the 2009 injury increased the pre-existing symptoms with the degenerative change observed in radiology, possibly made symptomatic;
(e)employment was a significant contributing factor.
In his evidence at the hearing Mr Slinger was asked whether the injuries in 2001 and 2009 had a cumulative impact, and he responded that the earlier injury or symptoms continued, with severe aggravation in 2009. Mr Slinger stated that a nerve conduction study had identified radiculitis, which is pain radiating along the nerve root extending into the upper limb, and DJVD had also been referred to a pain specialist and treatment with cervical blocks (A4, p 2).

Mr Slinger explained that sensitisation can lead to pain sensation well past the occurrence of physical injury, and DJVD had experienced symptoms continually prior to 2009 from a soft tissue injury. He stated further that her chronic strain injury was made worse probably because DJVD was predisposed by the later occurring degenerative change, and this change was likely to be age-related. In his opinion, her previous desk-based data entry work and maintaining a fixed head position had most likely aggravated her underlying condition.
In cross-examination Mr Slinger stated that he considered that the 1985 incident involved a simple strain which resolved and did not have any bearing on her later symptoms. In his opinion two-to-three months of data entry work may have had an influence. When asked whether the continuation of her symptoms despite provision of a mouse and software meant that posture was not a factor, Mr Slinger stated that posture is typically a factor in those who develop chronic pain due to pressure on the cervical spine.
Mr Slinger stated further that DJVD’s continuing symptoms of pain after 2001 were partly a result of employment, and partly due to pain sensitisation. He considered that while the impact in the 2002 car accident described by DJVD was quite significant, what is more significant is the fact that her symptoms settled. He stated that sensitisation can explain the persistence of pain after ceasing employment altogether, but the spine degeneration is the most likely cause of ongoing symptoms, due to the aggravation of prior symptoms. Mr Slinger disagreed with the opinion of Mr Phillips that the effect of this aggravation was only temporary.
In re-examination Mr Slinger re-stated his opinion that the data entry function commenced in 2001 was responsible for the symptoms described by DJVD in relation to the 2002 claim. He agreed that this was evidenced by her report of shooting pains on the right side and referral for treatment in September 2001. Her complaint of symptoms in late 2000 was resolved through physiotherapy.
Mr Fredrick Phillips
Mr Phillips, Orthopaedic Surgeon, confirmed in evidence that he provided two reports for the Respondent dated 29 March 2019 (Exhibit R3) and 9 July 2020 (Exhibit R4). He stated that his sub-specialisation is spinal conditions. In his reports Mr Phillips states:
(a)on examination of the neck there was a mild loss of rotation and lateral flexion and in the right shoulder some pain, ‘mild sensory deficit’ was found in the right C5/6 distribution;
(b)multilevel degenerative change was found in a November 2017 X-ray, and that some degenerative changes were noted in a March 2009 MRI of the cervical spine;
(c)DJVD ‘appears to have been particularly disposed to cervical complaint’ and the underlying pathology is ‘essentially degenerative in nature’;
(d)the 2009 incident would have been a temporary aggravation of prior symptoms and she was diagnosed with sensitisation possibly secondary to C5 nerve root impingement;
(e)she would have suffered symptoms similar to those complained of as a result of the natural progression of her pre-existing condition;
(f)there was no evidence of injury but only the reporting of symptoms in 2001, and the minor radiculopathy that was identified appears to have resolved, the basis of that diagnosis is tenuous.
In his oral evidence Mr Phillips stated that the evidence at the hearing with respect to the 2001 complaint, the car accident in 2002, and the 2009 incident did not alter his opinion. He stated that DJVD’s current condition is a result of normal, age-related degeneration with possible right C5 nerve root involvement, and this would be expected to be seen in many people in the Applicant’s age group. Mr Phillips could not say in what way her work duties contributed to the 2001 complaints without further specific information, but stated that poor posture can cause conditions of shoulder and neck pain.
Mr Phillips stated that he disagreed with Mr Slinger’s opinion about chronic soft tissue injury as Mr Phillips found no significant difference in range of movement which was essentially normal. He stated further that he was not able to explain in anatomical terms how DJVD’s complaints could continue; in his opinion she presents with symptoms that have no anatomical cause. Mr Phillips speculated that the 2009 injury could be understood as shoulder muscle tension leading to mild compression of nerves with no distinct pathological change involved.
In Mr Phillips’ opinion, the fact an MRI was ordered in May 2009 was an indication of significant pre-existing symptoms, but a subsequent scan found no identifiable change. Therefore, the effect would have ceased within a few days or three months at most after the incident at work, and a major nerve compression would be required for symptoms to last for a much longer time. Mr Phillips stated that, if posture was the cause, then her symptoms should have ceased when her employment ended.
In cross-examination Mr Phillips stated that his opinion was based on careful reference to radiology and anatomical signs found on physical examination. He accepted DJVD’s experience of pain as reported, and that it could be disabling pain, resulting in restricted movement.
Mr Phillips was asked about his reliance in his second report on the findings of other physicians in 2003 which addressed DJVD’s right shoulder complaints at that time (ST12 and 15). He responded that a shoulder injury always involves consideration of the neck and the two would not be considered in isolation, and that her neck symptoms are addressed in these reports. Mr Phillips agreed that cumulative neck injuries may have an impact on the spine, but only where they are in fact injuries of the spine. He stated that a ligament strain may be painful, but will resolve and if there is no joint or bone damage, and he would not expect any cumulative impact from a further injury.
In reference to the opinion of an orthopaedic specialist in November 2005 (ST32), Mr Phillips accepted there was anatomical evidence of foraminal narrowing most marked on the right side, evidenced in radiology, which explains the neurological findings. He also stated that in isolation, a disc protrusion is not evidence of injury pathology, and that significant force and symptoms in a short space of time relatable to that force was required. Mr Phillips noted that radiculopathy identified in 2001 related to C7, which is two levels lower than where degenerative change has been found. This result appeared to have been an anomaly.
Mr Phillips accepted that DJVD had fluctuating symptoms in 2001 leading to her referral to a neurologist, however he did not see any evidence in imagery of a clear injury pathology. He agreed with the proposition that even where healing occurs after an injury, the person may not return to their prior state, and in his physical examination he identified mild compromise at the C5 level. When asked about the continuity of DJVD’s symptoms, and how her condition could deteriorate to such a level that she had to cease work, Mr Phillips stated that it is ‘difficult to comment’ as DJVD’s symptoms reduced to quite low levels of pain. Further, given her mental health condition, he could not state that it must be that she was disabled by her pain level.
Dr Gemma Edwards-Smith
Dr Edwards-Smith, Consultant Psychiatrist, confirmed that she provided two reports dated 26 October 2018 (Exhibit R5) and 4 August 2020 (Exhibit R6) to Comcare. In her 2018 report Dr Edwards-Smith refers to a list of other medical reports with which she was then briefed, as well as to four earlier reports of her own. I am only able to identify three of Dr Edwards-Smith’s previous reports from the materials lodged with the Tribunal: reports dated 13 and 20 November 2012 (T60; R1, p 64); and, a report dated 8 March 2013 (T67).
In the reports tendered as exhibits at the hearing Dr Edwards-Smith states:
(a)DJVD presents with a Major Depressive Disorder of moderate severity that is treatment resistant, and presents with symptoms of anxiety and some trauma symptoms related to her sexual assault;
(b)that ‘there are ongoing personality issues of relevance with the presence of avoidant personality traits’;
(c)her psychiatric condition first developed when she required treatment in 1996 and she experienced a subsequent relapse associated with her compensation claim since 2010;
(d)that DJVD had a pre-existing history of anxiety and depression as identified by a psychiatric report in 2012, which reached back to the age of 15 or 16, with recurrent episodes of depression from at least age 29;
(e)there are sufficient aetiological factors to account for ongoing severe psychiatric disorder irrespective of her physical symptoms, and therefore additional causative factors account for her mental health condition;
(f)these factors include predisposing factors such as genetics or developmental trauma, precipitating events, and perpetuating factors such as ongoing stressors. If it is considered that her physical symptoms are no longer related to her employment, then the psychiatric condition also is not work-related;
(g)Dr De Felice’s opinion does not take account of the burden of pre-existing psychiatric history and vulnerability factors including developmental traumas.
In her oral evidence Dr Edwards-Smith stated that among the various employment related factors relating to DJVD’s condition, the neck injury was the most relevant, and in her history there are also allegations of bullying, however her condition is very multifactorial. Dr Edwards-Smith accepted that continuing neck pain was also contributing to DJVD’s condition, and referred to the other causal factors outlined in her report (predisposition, precipitating and perpetuating factors). In her opinion, developmental trauma was a ‘very significant’ factor, and all predisposing factors were adequate on their own for the onset of Major Depressive Disorder. DJVD’s longstanding psychiatric history made her more vulnerable to this condition.
Dr Edwards-Smith stated that there had previously been signs of improvement in the psychiatric condition permitting DJVD to return to work. However, it became more severe and resistant to treatment. Dr Edwards-Smith accepted that this appeared to be related to factors including loss of role and purpose, and consequent social isolation, and also the compensation process.
In Dr Edwards-Smith’s opinion, if pain is ongoing and severe enough to contribute to daily functioning then there remains a work-related factor, however if the work incident was only a temporary exacerbation of symptoms, then the work connection ceases. When asked about Dr De Felice’s opinion that the Major Depressive Disorder runs its own course now irrespective of factors, Dr Edwards-Smith stated that she considered this to be a ‘highly reductionist oversimplification of the complex matrix’ she provided in her own evidence.
When asked in cross-examination if DJVD had continuing Major Depressive Disorder with no relief since 2010, Dr Edwards-Smith repeated her evidence that the condition had shown improvement, but had not had completely resolved, and was very severe in recent years. Dr Edwards-Smith accepted that DJVD’s reports of pain had been fairly consistent and were worrying to DJVD.
Dr Edwards-Smith considered that DJVD’s social isolation was a result of her underlying personality rather than Major Depressive Disorder, as her avoidance of intimacy predates her work incapacity. Dr Edwards-Smith reiterated that the depression was not a permanent disorder triggered by the neck condition, and this is not a clear example of a single event triggering depression, rather it is the opposite.
DJVD’s sexual assault only came to light in 2018 and may represent undiagnosed Post-Traumatic Stress Disorder due to deeply buried and consciously minimised trauma. Dr Edwards-Smith agreed there was no formal diagnosis based on diagnostic criteria until 2010, however DJVD’s anxiety may have been a manifestation of depression. She noted that the treating doctor, Dr Van Wyk, also reported depression from age 29 and an eating disorder.
SUBMISSIONS
It was submitted on behalf of DJVD that she has been continuously incapacitated since the onset of her neck and psychiatric conditions. Her condition was said to be a result of both instances of workplace injury in 2001 and 2009. It was submitted there was clear instance of physiological change in the earlier incident, and DJVD had a history of ongoing pain and residual symptoms until the occurrence of the 2009 incident. It was further submitted that the authorities support the view that all compensable injuries are relevant to the consideration of present liability.
The second incident in 2009 should be understood as having resulted in a dramatic and sudden physiological change sufficient to meet the requisite test for an injury, other than a disease. It was submitted that this arose in the course of employment, but the condition may have been contributed to by underlying degenerative change. Nonetheless, the second incident gave rise to a clear and severe radiation of pain, causing continual pain and incapacity for work.
It was also submitted that the notion that DJVD had at some point recovered from her neck condition was not supported by the medical evidence. Mr Phillip’s evidence that DJVD experienced a soft tissue injury lasting only three months was contrary to evidence of neuropathy contemporary with the injury. Mr Slinger’s evidence of continuing effects of the aggravation with no recovery or cessation should be preferred.
It was submitted that DJVD went on to develop her psychiatric condition as a result of the impact her physical injuries had on her capacity to work; the evidence did not support an argument that she had a prior condition of Major Depressive Disorder. It was acknowledged that DJVD had a pre-existing vulnerability to this condition, but it was submitted that the authorities did not require an employment-related injury to be the sole cause of her psychiatric condition. Specifically, DJVD’s representative cited Salisbury v Australian Iron and Steel Ltd (1943) 44 SR (NSW) 157 (at 162) for the proposition that an employment related injury may be a catalyst that precipitates disability, in cases where there is nonetheless another progressive non-employment condition present.
The psychiatric condition is a severe condition that is ongoing and incapacitating. In addition, it was accepted by Dr Edwards-Smith that if the neck pain is continuing, then DJVD’s psychiatric condition should be considered as continuing.
It was further submitted that compensation for incapacity under the Act is payable where incapacity is a result of an injury. This does not require a finding that the employment related injury is the sole cause of the incapacity.
On behalf of the Respondent it was submitted that there were doubts about causation in relation to the 2001 incident for reasons including: DJVD had received treatment through her employer for neck pain arising in late 2000; it arose in a different role to the one in which she made her claim; and, there was no evidence of a forceful event. The medical evidence indicated that this injury resolved, and that degenerative change was an alternative explanation for DJVD’s ongoing symptoms. DJVD had in any event been removed from aggravating workplace factors at the latest on leaving work in 2010.
It was submitted that the medical evidence in relation to the 2009 injury indicated that there was attribution to the degenerative change, and that Mr Phillips considered there was acute pathology based on the temporary overload experienced at the time of the incident, but it was not distinguishable from her prior condition. In conclusion, it was submitted on the Respondent’s behalf that both physical injuries were temporary and ceased in their effect before DJVD left the workforce. Ongoing symptoms are a result of her separate degenerative condition.
With respect to the psychiatric condition it was submitted that while the evidence is that the Major Depressive Disorder has continued since 2010 with no remission, it was also accepted as being multifactorial. There are significant factors predisposing DJVD to developing this condition including pre-existing anxiety and hospital admissions. It was submitted that oral evidence indicated there were indeed prior incidents of depression. Witnesses also agree to perpetuating factors including loss of role and the compensation process itself. Dr Edwards-Smith stated that if the physical condition is no longer to be considered work-related then the psychiatric condition could no longer be accepted as employment related. In her opinion DJVD’s condition was multi-factorial.
The Respondent’s representative cited Prain v Comcare [2017] FCAFC 143, in particular with respect to the Full Court sustaining the Tribunal findings, including that work factors in that case had moved to the background. It was also submitted that authorities demonstrated that non-work factors were outside the definition of employment. Following Australian Industry Development Corporation v Boyd [1990] FCA 96, it was argued that employment is confined to a particular state of affairs or the characteristics of work performed. Similarly, it was found in Australian Telecommunications Commission v Tzikas [1985] FCA 385 that a factor such as resentment was not employment related.
In reply, DJVD’s representative emphasised that her psychiatric condition was a consequential injury which was relevant to issues of causation. With respect to the perpetuating nature of her psychiatric condition it was submitted that Eaves v Blaenclydach Colliery Company Ltd [1909] 2 KB 73 supported the view that mental effects secondary to an injury do not necessarily cease when the physical injury ends. This proposition has been repeated in numerous other decisions including Commonwealth of Australia vKeith Colville Smith [1989] FCA 189 at [16]-[17].
CONSIDERATIONS
Physical conditions
As noted, the second claim arising from the 2009 incident with the box was accepted as an aggravation of an earlier accepted claim. Comcare accepted in August 2002 that DJVD experienced an intervertebral disc disorder of the right side of the cervical region (T14/71). In July 2010 Comcare accepted DJVD had experienced: aggravation of neuralgia, neuritis, radiculitis, unspecified, on the right side; aggravation of degenerative right intervertebral disc, right; and, aggravation of intervertebral disc disorder, cervical, right.
In between the two conditions being accepted, DJVD underwent a very significant amount of treatment for her physical complaints including a shoulder condition, for which liability was not accepted by Comcare. Relatively close to the first claim it appears that the nature of DJVD’s condition was difficult to diagnose. For example, Dr Gubbay, neurologist, after numerous examinations and treatments between September 2001 and June 2002 (ST1, 3, 6, 7 and 8) concluded in 2002 that her condition ‘probably was basically a type of inflammatory disturbance’ related to her posture (ST8). A comprehensive review by a consultant orthopaedic surgeon resulted in a further diagnosis in May 2005 of a ‘probable’ soft tissue strain in the cervical spine (ST30).
While DJVD’s cervical spine is referred to in that 2005 opinion, and in the original determination by Comcare, there was at this time no objective radiological evidence of a problem with the cervical spine. This is apparent, for example, from the summary of radiological material in the reports of Mr Slinger above. The specialist evidence also shows that the one instance of a positive indication of nerve damage in 2001 is best understood as an anomaly. Indeed, DJVD’s treating neurologist determined that it was no longer appropriate to retain responsibility for her treatment (ST7). The absence of nerve entrapment was confirmed by a consultant rheumatologist in early 2003 (ST11).

Shortly prior to the second incident, DJVD demonstrated normal responses to nerve conduction tests and Dr Goodheart concluded that the majority of her symptoms remain at the soft tissue level (ST50). In a report from January 2010, Dr Euan Thompson (ST51) determined that it was likely that her symptoms at that time (neck pain and limitation of movement) were due to pinching of a nerve, and that this was related to degenerative change that had occurred between 2005-2009. Mr Slinger’s reporting on the radiology shows there was evidence of nerve impingement in October 2005, and signs of increased degeneration by 2010. I note that in August 2010, a neurosurgeon described DJVD as presenting with ‘non-classical’ symptomatology (ST58).
Dr Silbert, an occupational physician, examined DJVD approximately a year after the 2009 incident. In his report (T19), he concluded that DJVD had chronic neck pain and her underlying pathology was responsible for her symptoms. This was confirmed in his investigation for compromise of the nerve undertaken in March 2011, which found no evidence of radiculopathy (T28). Mr Kelman in his report of August 2016 concluded that at that time DJVD’s symptoms were attributed to underlying age-related spine disease (T113).
It is my understanding from all of the evidence that both the 2002 and 2010 claims arose from DJVD experiencing soft tissue injuries in the workplace. The causes were different being, in the first instance, static work duties including keyboard and mouse work, and in the second case, a muscle strain when handling the box. There may have been another, more dynamic, incident prior to the 2002 claim. There is indeed only speculation in the medical evidence about the nature and extent of any direct force sufficient to cause the reported symptoms.
Mr Slinger considered that her symptoms may be explained by sensitisation. However, I do not consider that this conclusion is borne out by the totality of the evidence. Indeed, the weight of medical opinion, as I read the material, is to the effect that the condition related to the 2002 claim had resolved prior to that arising in the 2010 claim. The evidence demonstrates that the later condition arose from temporary aggravation of an underlying degenerative process. I consider the evidence supports a finding that this underlying process is the cause of any ongoing symptoms.
In more than one medical report DJVD has been referred to as a sincere historian and I have not seen any evidence to suggest that her presentation has been seriously doubted. Her evidence at hearing was clear and consistent, despite some memory gaps which can most likely be attributed to her psychiatric treatments. Nonetheless, the weight of evidence indicates that DJVD does not present with any physical symptoms that can reasonably be understood as being a result of work duties that ceased some five years ago.
For liability to exist it is necessary that a condition be found to arise as a result of the person’s employment. While DJVD continues to report symptoms of pain, I am not persuaded that the requisite causal connection can now be found to exist with identifiable medical conditions on which her claims were originally based.
Psychiatric condition
It is evident DJVD has a long and relatively complex history of mental health concerns. Her condition has at times been severe and required repeated ECT treatment. As is clear from the focus of evidence at the hearing, a key issue was the nature and origins of DJVD’s psychiatric condition. Her history is complicated further by the late reporting of, and attempted treatment for, an instance of historical sexual assault. There is no dispute, however, that DJVD currently suffers from Major Depressive Disorder, that it is intractable, and requires ongoing management.
I am satisfied that this psychiatric condition should be understood as a disease, and I make this finding. The question arising then is whether I am reasonably satisfied that this condition was significantly contributed to by DJVD’s employment, being a substantially more than material contribution, taking into account the factors in s 5B(2) of the Act. While the original Comcare determination in her favour describes the psychiatric condition as ‘secondary’ to her physical condition, I note that the use of terms such as primary and secondary is not founded in the legislation.[1]
[1] See Canute v Comcare [2006] HCA 47 at [34].
Historical medical reports were a feature of the oral evidence, particularly records from the Bentley Clinic. The earliest relevant records appear to be from the Bentley Clinic where DJVD participated in a treatment program addressing anxiety (R1, p 158). There is a later referral letter in 1995 (R1, p 30) which refers to a history of panic attacks.
A report in 2008 by another consultant psychiatrist Dr Terace (R1, p 36) reports a diagnosis of a ‘modest but recognisable’ psychiatric condition, being an adjustment disorder. Dr Terace emphasises symptoms of anxiety secondary to an anxious constitution, and notes that DJVD is constitutionally vulnerable to mild anxiety. I note there are a number of references to ‘anxiety/depression’ in the reports of her treating psychiatrist Dr Van Wyk (R1, p 53).
Having considered this material in the context of the wider evidence, including that at the hearing, I do not consider there to be strong evidence of a prior diagnosis of depression. Indeed, the Registrar at the Bentley Clinic reported in 2011 (T37) that DJVD had the condition Anxiety Spectrum Disorder and recommended inpatient treatment in a facility with expertise in treating anxiety. In any event, the evidence at the hearing was clear on the absence of any earlier diagnosis of the specific, current condition of Major Depressive Disorder.
As noted, previous reports have identified aspects of DJVD’s vulnerability to developing a mental health condition. This was the subject of evidence at the hearing and in the reports of the specialist witnesses. There is no doubt that DJVD is accepted as possessing a number of critical and relevant vulnerabilities that predispose her to the development of a psychiatric condition. She has, as noted, been diagnosed and treated previously for anxiety. I consider it very clear that in having a history of psychiatric conditions and treatment for them, DJVD was predisposed to the development of her current condition, or at least to the aggravation of her prior conditions.
Other matters affecting DJVD’s health are also a relevant consideration. In this respect her longstanding experience of neck, shoulder, and arm pain is clearly a factor. This pain caused interruption to and changes in her work and roles, evidenced in extensive medical reviews, including as part of rehabilitation assessments. I understand the evidence as showing that DJVD was diagnosed with her current condition in around 2010 following the claim for the second incident.
I have considered DJVD’s physical pain in some detail and have concluded that ongoing symptoms can no longer be considered to result from employment. I do not consider this finding to preclude her neck and upper arm symptoms being an important feature of her health at the time of diagnosis of Major Depressive Disorder. Moreover, there were features of her employment referred to in the material before me which I consider to bear on the development of her psychiatric condition.
Specifically, I note that her underlying vulnerability interacted with her work capacity as reported by, for example, Dr Terace. DJVD was unable to continue in customer service roles due to her anxiety. The general disruption in her work life arising from such factors was added to the ongoing need to treat her pain symptoms. The evidence at the hearing also, in my view, reinforced this earlier observation including by reference to loss of role and status.
The representative for the Respondent made submissions about the appropriate manner in which to treat factors relevant to a person’s condition which are not directly related to their employment or work functions. Having considered the authorities cited, I consider the correct approach is to apply the provisions of the Act which, in subsection 5B(2), sets out a non-exhaustive list of factors which should be applied to consideration of the question of whether the requisite causal connection can be established.
Further as to causation, I note the emphasis placed by Dr Edwards-Smith on the relationship between DJVD’s physical and psychiatric conditions. In her evidence this witness accepted the subjective experience of pain, but was also of the opinion that if a causal connection with employment was not accepted by other specialists, then in her opinion the psychiatric condition could similarly not be accepted as work-related. I am unable to accept this position. What is important is that DJVD’s experience of pain and also disruption to her engagement at work were operating at the time of the diagnosis of Major Depressive Disorder. As noted already, this disorder continues unabated.
The evidence demonstrates to my satisfaction that what was once, and perhaps not continually, one or more ‘lesser’ forms of psychiatric condition transformed into a more serious psychiatric condition. It is more serious because it is of a distinctly different character to her prior condition and because, on the evidence, it remains intractable. While DJVD persevered in her employment for many years after treatment for anxiety, she was, ultimately, unable to continue in employment following the development of her current condition. I have accepted that DJVD was vulnerable to just this kind of development. Nonetheless, taking into account all of the relevant considerations, I find that DJVD’s psychiatric condition was contributed to, to a significant degree, by her employment.
DECISION
For the reasons given above the Tribunal sets and aside the decision under review dated 6 December 2017 and in substitution decides as follows:
(a)from the close of business 13 September 2017, DJVD is no longer entitled to compensation in accordance with s 14 of the Safety, Rehabilitation and Compensation Act 1988 arising from the condition aggravation of neuralgia, neuritis, and radiculitis, unspecified (right), aggravation of degeneration of intervertebral disc (right), and aggravation of intervertebral disc disorder – cervical region (right);
(b)from the close of business 13 September 2017 to the present date and at the present date, DJVD continues to suffer from the effects of Major Depressive Disorder and is entitled to compensation under s 16 and s 20 of the Safety, Rehabilitation and Compensation Act 1988; and
(c)directs that within 14 days of the date of this decision each party may apply to the Tribunal for orders in relation to costs and, if not agreed, either party may apply to the Tribunal for the costs to be taxed.

I certify that the preceding 81 (eighty-one) paragraphs are a true copy of the reasons for the decision herein of Dr Stewart Fenwick, Senior Member

[sgd]..........................................................
Associate
Dated: 13 November 2020

Date of hearing:

25, 26, 27 and 28 August 2020

Counsel for the Applicant:

Solicitors for the Applicant:

Mark Carey

MAURICE BLACKBURN LAWYERS

Counsel for the Respondent:

Solicitors for the Respondent:

Roy Seit

SPARKE HELMORE LAWYERS