DVFW and Comcare (Compensation)
[2020] AATA 2055
•1 July 2020
DVFW and Comcare (Compensation) [2020] AATA 2055 (1 July 2020)
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2018/3869,
GENERAL DIVISION ) 2018/4369Re: DVFW
Applicant
And: Comcare
RespondentDIRECTION
TRIBUNAL: Mrs J C Kelly, Senior Member
DATE OF CORRIGENDUM: 9 July 2020
PLACE: Sydney
The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975 (Cth), to alter the text of the decision in this application such that:
1.at paragraph 20, all occurrences of “his” and “he” are replaced by “her” and “she”, respectively; and
2.at paragraph 21, all occurrences of “him”, “his” and “he” are replaced by “her”, “her” and “she”, respectively.
........................[sgd]...........................................
Mrs J C Kelly, Senior Member
Division:GENERAL DIVISION
File Number(s): 2018/3869
2018/4369
Re:DVFW
APPLICANT
AndComcare
RESPONDENT
DECISION
Tribunal:Mrs J C Kelly, Senior Member
Date:1 July 2020
Place:Sydney
In proceedings 2018/3869, the reviewable decision dated 4 June 2018 is set aside and in substitution the decision is made that Duromine is reasonable medical treatment obtained in relation to the Applicant’s accepted injury, pursuant to section 16 of the Safety, Rehabilitation and Compensation Act 1988 (Cth).
In proceedings 2018/4369, the reviewable decision dated 23 July 2018 is affirmed.
.............. ...[sgd].......................................................
Mrs J C Kelly, Senior Member
CATCHWORDS
WORKERS’ COMPENSATION – Applicant employed by Commonwealth government department – Applicant has an accepted claim in 2016 of aggravation of borderline personality disorder – whether Duromine is reasonable medical treatment obtained in relation to the Applicant’s accepted injury – whether the Respondent is liable to pay for the medical treatment (Duromine (phentermine), an appetite suppressant) in respect of previously accepted liability – Applicant claims that her normal weekly earnings (NWE) should be calculated according to full-time hours of 37.5 and not part-time hours of 29.5 – in proceeding 2018/3869 the reviewable decision is set aside and substituted and in proceedings 2018/4369 the reviewable decision is affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth) – ss 8, 9, 14, 16
CASES
Comcare v Nicolas (2014) 225 FCR 369
REASONS FOR DECISION
Mrs J C Kelly, Senior Member
1 July 2020
INTRODUCTION
On 22 September 2016, Comcare, the Respondent, determined that it was liable to pay compensation to the Applicant, DVFW, in respect of aggravation of borderline personality disorder, (the accepted injury), pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act), with a date of injury of 8 November 2012.[1]
[1] Exhibit R3.
There are two proceedings before the Tribunal. The Applicant represented herself.
In proceedings 2018/3869, the Applicant contends that the Respondent is liable to pay for the medication Duromine (phentermine), an appetite suppressant. The question is whether Duromine is reasonable medical treatment obtained in relation to the Applicant’s accepted injury, pursuant to section 16 of the Act. The reviewable decision is dated 4 June 2018.
In proceedings 2018/4369, the Applicant contends that her normal weekly earnings (NWE) should be calculated according to full-time hours of 37.5 and not part-time hours of 29.5. The relevant provisions of the Act are sections 8 and 9. The reviewable decision is dated 23 July 2018.
BACKGROUND
The Applicant was born in 1976. She commenced employment with a Commonwealth government Department (the Department) in March 2006. The Applicant’s fourth child was born in October 2011. On 6 June 2012 the Applicant sustained an injury to one of her fingers while on maternity leave. She underwent surgery and then wore a cast for six weeks. On 9 August 2012 she returned to work on restricted duties.
A rehabilitation provider was assigned to help the Applicant return to work. The Respondent’s liability pursuant to section 14 of the Act arose from what the Applicant described as harassment and unfair treatment by her managers when she did not recover from her finger injury as quickly as anticipated and was unable to do the duties she was expected to. That occurred particularly from around November 2012 to February 2013.
The Applicant ceased work in February 2013. She returned to work at a different location in December 2013. She has not worked since 3 February 2014.[2]
Duromine – proceedings 2018/3869
[2] Letter dated 15 August 2018 from the Rehabilitation Case Manager, People Services to Allianz; Exhibit A18.
Duromine (Phentermine) is an appetite suppressant. The Applicant’s case is that a side effect of the anti-depressant medications she has taken is weight gain and Duromine is reasonable treatment because it counters that. The Respondent argued that the Tribunal could not be affirmatively satisfied that the Applicant was entitled to receive the benefit of payment for Duromine. It pointed to the Applicant’s 20 kg increase in weight from November 2013 to July 2015 while taking Efexor and Duromine to demonstrate that it did not result in weight loss.
The reviewable decision arose from the Applicant’s 1 February 2018 request for reimbursement for nine medications. Only Duromine and Phentermine were rejected.
The Respondent did not press the argument at the hearing that it was not liable to pay for Duromine because the Applicant does not continue to suffer the effects of her compensable injury.
The Applicant has been prescribed various anti-depressant medications since 2012. The following evidence is derived from the Applicant’s Pharmaceutical Benefit Records.[3] The Applicant’s then general practitioner prescribed Venlafaxine (Efexor) for the first time on 21 March 2013. On 24 July 2015 the same general practitioner prescribed Escitalopram (Lexapro). On 12 April 2016, the Applicant’s psychiatrist, Dr C, prescribed Duloxetine (Cymbalta) and changed the prescription to Fluoxetine (Lovan, Prozac) on 12 October 2016.
[3] Exhibit R5.
The Applicant’s then general practitioner first prescribed Duromine for the Applicant on 11 November 2013.[4]
[4] ST28, p. 97, proceedings (2018/3869) & (2018/4369).
The Applicant included in her Statement of Fact, Issues and Contentions a table at paragraph 34 in which she set out when she was prescribed antidepressants and Duromine and her weight to show that she put on weight when taking antidepressants without Duromine. The Table covered the period 21 March 2013 to 8 June 2017. She said that the weight details came from the general practitioner’s notes and “weight observations”.
A comparison of that Table with the general practitioners’ clinical notes show that the table is not accurate. For example, the Table states that the Applicant was not taking Duromine for four months from June to September 2014 and that her weight had increased by 10.5 kgs. A prescription was issued on 2 June 2014, contrary to what was shown in the Table. There is a record that Duromine ceased on 26 August 2014, however, it was prescribed again on 23 September 2014.
Similarly, the Table states that the Applicant was not taking Duromine from January 2015 until 10 April 2016 and “I remember to be approx. 90 kg”. The weight recorded in the general practitioner’s clinical notes on 20 January 2015 was 83 kg and a note stated “stable on Duromine but not loosing (sic) weight”. Prescriptions for Duromine were printed on 9 April 2015 and 1 June 2015. On 22 July 2015 the note stated “Duromine Capsule 40 mg ceased”. Prescriptions for Duromine were printed on 12 September 2015, 28 September 2015, and 17 and 18 December 2015. The last weight record was 79 kg on 28 September 2015. The Applicant moved and changed general practitioners in June 2016.
On 7 June 2016, the new general practitioner, Dr CS, recorded that she had not been on Duromine “but weight is increasing again so thinking about starting again” but wanted to wait until her old medical records came through. Dr CS first prescribed Duromine on 25 October 2016. At most, the Applicant did not take Duromine for nine or ten months in 2016.
There are numerous references to issues of weight, diet, and exercise in the clinical notes of both general practitioners.
It is unnecessary to consider the clinical records of Dr CS in detail because she gave oral evidence, having provided a report dated 1 May 2018.[5] She wrote that the Applicant was taking an antidepressant medication that causes appetite dysregulation and weight gain and requires Phentermine to help with appetite suppression. She commented that the Applicant was having some difficulty with exercise as a means of weight control “due to joint pain, this is not the reason for her weight gain which is entirely due to the appetite dysregulation from the antidepressants”. The doctor also commented that exercise would not be sufficient to manage her weight gain. She maintained her opinions during cross-examination.
[5] T57, p. 376, proceedings (2018/3869).
The Applicant has taken a number of different anti-depressant medications. Two different general practitioners who have both cared for the Applicant for a number of years have decided that Duromine was an appropriate medication to help control the Applicant’s weight gain which they considered was caused by the anti-depressant medications she was taking.
I have taken into account the inconsistent answers given by the Applicant’s psychiatrist, Dr C, on 27 April 2018 and 8 May 2018 to questions from the Respondent. In his first response, he agreed with the statement that Duromine is used to reduce body weight in obese or overweight people and is not to be taken if patient suffers from a psychiatrist (sic) illness. He also ticked the box marked “no” in answer to the question “Is this medication treating a condition relating to the workplace injury?”. In the same document he was asked the same questions about “Phentermide” and gave the same answers.
Dr C was given details of the times phentermine was prescribed, a copy of Dr CS’s report dated 1 May 2018 and asked whether that information caused him to change his opinion. He said that it did. He said that the Applicant was treated with Venlafaxine (for her workplace injury), which increased her appetite and therefore her weight, leading to short term use of appetite suppressants.[6]
[6] T59, pp. 384-386, proceedings (2018/3869).
The Respondent called two psychiatrists to give oral evidence: Dr Evans and Dr Rees. Dr Rees had provided numerous reports about the Applicant. Dr Evans provided three reports in 2019. It was after Dr Evans had given evidence, that the Respondent decided not to press the argument that the Applicant no longer suffered from the accepted condition.
While the Applicant’s case was that the anti-depressant medications caused weight gain, Dr Rees’s evidence was interesting because she said that characteristic features of Borderline Personality Disorder (BPD) include overeating. Dr Rees noted references to the Applicant binge eating in the past and an admission to hospital as a teenager for an eating disorder.
The evidence shows that the Applicant’s weight has increased dramatically since she suffered the work injury.
In her report of 18 June 2019, Dr Rees said that Efexor does not typically cause weight gain in most people “although you can have paradoxical cases”. She wrote that weight gain is likely to be “multifactorial” and noted that at one stage the Applicant was taking Epilim which more likely to cause weight gain. She noted that Epilim may be used for mood regulation problems in people with BPD. She also wrote that weight reduction medications such as Duromine were not within her area of expertise. She did observe that Duromine is addictive and typically should not be prescribed over long periods of time.
Dr Evans wrote in her 15 July 2019 report that in her 24 years of practice as a psychiatrist she had never felt she needed to co-prescribe Duromine when prescribing medication and said that she is not a weight loss expert as it does not fall within a general psychiatric practice and she could not comment further. She also said that eating disorders are a symptom of BPD. She said, fairly, that weight gain with Efexor was less common but each individual has an individual response.
I do not accept the Respondent’s argument that there was no expert evidence or investigation of the causal factors of weight gain and that evidence of weight gain while on Duromine contradicts the need for that medication. The Respondent was dismissive of the treatment given by two general practitioners over periods of years. Those general practitioners know the Applicant and her circumstances intimately. I do not accept that suggestion that they prescribe medications that the Applicant requests. I infer that both general practitioners treated the Applicant professionally and carefully considered whether prescribing Duromine was appropriate. I note that there are periods when it has not been prescribed which seems consistent with Dr Rees’s evidence that it is addictive and should not be prescribed over a long period. I found Dr CS to be a persuasive witness. Her answers to questions were thoughtful and considered.
I also take into account the evidence of both Dr Rees and Dr Evans that eating disorders are a symptom of BPD. As stated above, the Applicant’s weight gain has occurred following the onset of the accepted injury. If the opinion of Dr Rees and Evans is accepted and the Applicant’s weight gain is attributable to her accepted condition, rather than Dr CS’s opinion that it is caused by anti-depressant medication, the outcome would be the same. In either case, the Applicant’s weight gain is the consequence of her accepted injury.
For those reasons, I find that the medication Duromine is reasonable medical treatment obtained in relation to the Applicant’s accepted injury, pursuant to section 16 of the Act.
Normal Weekly Earnings - proceedings 2018/4369
Section 9 of the Act provides that the relevant period for the calculation of an employee’s NWE before any injury is the latest period of 2 weeks before the date of injury during which the employee was continuously employed by the Commonwealth. As stated above, the date of the accepted injury is 8 November 2012. The Applicant was not entirely happy about that date being specified, saying that her legal representative had not discussed it with her. In her claim for compensation under section 14 of the Act lodged on 27 March 2014, the Applicant claimed that her anxiety and depression commenced on approximately 1 November 2012.
In 2016 the parties agreed that the accepted date of injury was 8 November 2012. I infer that they did so because that is the date of the first clinical note of the Applicant’s general practitioner that referred to her seeing him about a psychological condition. It is the appropriate date from which to calculate her NWE. For the reasons set out below, whether it was 1 or 8 November 2012 is immaterial to the outcome because her hours of work were the same from her return to work until she left in 2014.
The Applicant argued that her NWE should be calculated based on her working full-time hours of 37.5, for the following reasons. She was employed to work full-time. There were agreements from time to time for her to work part-time, however, the most recent of those agreements had ended on 15 September 2012. After that date, there was no part-time agreement. Her default hours were 37.5. She asked about returning to full-time hours in a different role in a different section in about October 2012 but was not permitted to. She believes that there were emails about that matter but the employer has not produced them, even after being issued with a summons.[7]
[7] Exhibit A20.
She argued that part-time agreements are not to disadvantage people and that it is discriminatory to a woman and a parent to say that she should be on a part-time arrangement for ever.
The Applicant relied on the Department’s Certified Agreement 2011-2014 (the CA) and subsection 8(6)(b) of the Act.[8]
[8] The CA is exhibit A2.
The Applicant raised three other matters. It was unclear whether she was raising them because she thought that they were relevant to the calculation of NWE or because they illustrated how unfairly she had been treated.
The first was that she was told to go home when there were no suitable duties for her and to take personal leave. She said that If there had been work available, she would have worked the agreed hours.
The second was that she was denied a transfer to an area to do full-time work because she was on restricted duties.
The third was that she was denied appropriate arrangements relating to breast feeding.
Consideration of NWE
The Applicant feels aggrieved about her treatment at work for various reasons, including that she believes her manager and rehabilitation provider were pushing her to return to duties before she was fit to do so and that the rehabilitation provider was pressing the Applicant’s doctors to certify her as fit for duties for which she was not fit. Her evidence and submissions were extensive and ranged over the period of her employment. Section 9 of the Act requires consideration of the Applicant’s earnings for the period of two weeks before the date of injury, that is, before 8 November 2012.
Subsection 8(1) of the Act sets out how to calculate NWE. It provides for various inputs, depending on the Applicant’s circumstances. It takes into account the average number of hours worked in each week (NH), the employee’s average hourly ordinary time rate of pay (RP), and the average allowance payable to the employee in each week (A).[9] The formula is:
{NH x RP} + A
[9] Subsection 8(1) of the Act.
Subsection 8(2) of the Act provides for overtime on a regular basis to be included in the calculation. Subsection 8(3) of the Act includes any other earnings if the Applicant is working part-time for the Commonwealth or a licensed corporation. Subsections 8(4) and (5) of the Act provide a means of calculation where, because of the shortness of period of employment, it is impractical or unfair to calculate the NWE according to subsections 8(1) and (2).
The Applicant referred to subsection 8(6) of the Act which provides:
Subject to this section, if the minimum amount per week payable to an employee in respect of his or her employment by the Commonwealth or a licensed corporation at the date of the injury is increased, or would have been increased if the employee had continued in that employment, because of:
(a) the attainment by the employee of a particular age;
(b) the completion by the employee of a particular period of service; or
(c) the receipt by the employee of an increase in salary, wages or pay by way
of an increment in a range of salary, wages or pay applicable to the employee or to his or her office, position or appointment;
the normal weekly earnings of the employee before the injury, as calculated under the preceding subsections, shall be increased by the same percentage as the percentage by which that minimum amount per week is increased, or would have been increased, as the case may be.
Subsection 8(7) of the Act provides for an increase in the minimum amount per week to take into account the promotion of an ongoing employee.
Subsection 8(8) of the Act modifies the calculation in the case of certain persons so that it is determined according to the amount per week the employee would have been able to earn at the date of injury, including regular overtime, “if he or she had engaged in suitable paid employment”.
Subsections 8(9) to 8(9G) of the Act provide for indexation to be applied to the calculation of NWE in various circumstances.
The Applicant also relied on the CA. Her Application/Variation for Permanent Part-Time Work for a period from 14 September 2010 to 14 September 2012 was approved by Ms O on 23 September 2010.[10] It was not an agreement made under the CA. In her Statement of Facts, Issues and Contentions, the Applicant stated that the agreement she made with her manager, Ms C about returning to work on 9 August 2012, only applied until 14 September 2012 when the previous agreement part-time agreement ended. Thereafter, her usual hours of 37.5 applied.
[10] T12C, p. 58, proceedings (2018/4369).
In her statement dated 10 July 2018, Ms C said the following.[11] Prior to the Applicant going on maternity leave in 2011, she was working part-time following the birth of her third child and was requesting to continue the part-time arrangement when she returned to work following the birth of her fourth child. When the Applicant requested an increase in her hours by 30 minutes from 29 hours to 29.5 hours, Ms C agreed, and the information was put into Essentials (HR/Payroll system) on her return from maternity leave on 9 August 2012.
[11] T12E, p. 67, proceedings (2018/4369).
On 2 August 2012, the Applicant sent Ms C an email about her return to work, including her proposed hours which totalled 29.5.[12] That email did not mention an end date for the arrangement.
[12] T26B, pp. 188-189, proceedings (2018/3869).
The Applicant provided planned working time screenshots from her employer, for the period 29 September 2011 to “31.12.9999”.[13] The latter was approved on 5 June 2013. They show that her hours of work from 29 September 2011 to 5 June 2013 were 29.50. In the covering email, the Applicant said the following.[14] Many manual changes had been made without her agreement or knowledge and the only change she agreed to was the variation made on 8 August 2012. The Applicant said that the change on 28 November 2012 had been entered without her agreement.
[13] Exhibit A12.
[14] Ibid.
The “variation” made on 8 August 2012, ended on 18 November 2012, after the date of injury.
Part F of the CA is entitled “Flexible Working Conditions”. Part F7 is entitled “Negotiation of Working Hours”. It set out a process of negotiation between the employee and their direct supervisor on the employee’s working hours.[15] It provided that an employee may request a regular hours agreement, and if approved, it will apply for a specified period of 12 months, unless a shorter period is requested by the employee, that the employee will be advised of the outcome of their request in writing and the agreement will be jointly reviewed at the end of the period. It set out a process where an employee and their direct supervisor cannot reach agreement.
[15] At F7.1 to F7.11.
The CA also set out provisions for the variation of negotiated hours.[16] It stated that an existing agreement may be varied by agreement “between the Secretary and the employee”. There was no requirement for the outcome of that to be advised to the employee in writing.
[16] At F7.12 to F7.15.
The Applicant was a full-time employee whose standard weekly hours were 37.5 per week. From at least 14 September 2010 she had worked part-time. From 9 August 2012 to 5 June 2013 and when she returned in December 2013, her hours of work were 29.5. The evidence is that the Applicant agreed to a return to work arrangement in 2012 on the basis of part-time work for 29.5 hours. The Applicant agreed during cross-examination that she had agreed to a variation of her hours to part-time until 18 November 2012, that is after the relevant two week period.
The Applicant’s argument based on the CA depends on accepting that the return to work agreement with Ms C was only effective until the end of the 2010-2012 part-time agreement on 14 September 2012 and then negotiation of a new agreement under the CA should have occurred. The Applicant said that “they did not do what they were supposed to do” and that there were numerous conversations, meetings and emails requesting a meeting. She said that it upset her that she could not access those emails.
There are transitional provisions in the CA, but neither party referred to them.
The Applicant devoted a great deal of time and effort in representing herself to the best of her ability. She pursued emails that she knew existed with eventual success on several occasions. She is not a lawyer. It is understandable that she put an argument that would have been financially beneficial to her. However, the evidence, including her own, does not support the claim that the return to work agreement with Ms C ended when the 2010-2012 agreement ended on 14 September 2012.
Section 8 of the Act is a practical provision. The formula for calculating NWE includes the average number of hours worked in each week. The CA does not assist the Applicant. She did not work 37.5 hours at any relevant time. She had agreed to work 29.5 hours per week during the relevant two week period. Subsection 8(6) of the Act does not assist the Applicant. It takes into account for the purpose of calculating NWE, increases in circumstances that occur or would have occurred, after the date of injury. There was no certainty whether or when the Applicant would have returned to full-time work.
I note that there were increases to the Applicant’s NWE in accordance with the CA on 1 July 2013 and 1 September 2013.[17]
[17] Respondent’s Statement of Facts, Issues and Contentions at [4.5].
The Respondent did not argue that the Applicant’s NWE should be calculated based on fewer than 29.5 hours. The Applicant’s concern about having to go home early and take personal leave because she was not offered suitable duties does not affect the calculation of NWE. This aspect of her evidence needs no further consideration.
The Applicant claimed that Ms D who worked in Ebusiness, offered her a full-time role as a business development officer and was going to talk to her manager, Mr E. The contemporaneous evidence about the full-time role the Applicant talked about follows. The Applicant sent an email to Ms D dated 10 October 2012. Relevantly, the Applicant wrote:
There is no way for me to actually check if my name is still on the register but I have previously registered just not sure if it needs to be updated yearly etc.
Anyhow I have attached a copy of my latest resume if you’d like to have a look and see if I would be suitable in the area.
I have attached both my brief resume and full resume, please feel free to pass them on if you wish.
The email does not identify a particular role or whether it was full-time or part-time. Other evidence shows that it was a role in Ebusiness.[18]
[18] T11, Timeline of Events, proceedings (2018/3869).
On 30 October 2012, Mr E, Ms D’s manager, sent an email to Ms D:
(The Applicant) will not be considered for a transfer whilst she is on restricted duties.
Who is communicating with (the Applicant) about her request to transfer?
Later that day Ms D replied that she would let the Applicant’s manager know.
The evidence shows that Applicant had previously registered without success. On this occasion, she left her suitability for the area to Ms D’s judgment. Mr E decided that she would not be considered for any transfer while on restricted duties. Whether she would have been successful on this occasion if that decision had not been made is unknowable. The Applicant said that her interest in this role showed that she wanted to work full-time hours and better her career. That may be so, however, she continued in her current part-time role with 29.5 hours work per week. There is no suggestion in the evidence that she sought to work full-time in that role. While the Applicant feels that she was treated unfairly and discriminated against, those circumstances are not relevant to the calculation of NWE. In Comcare v Nicolas (2014) 225 FCR 369 at [42], the Full Court of the Federal Court said:
The task of the AAT was to examine whether the two-week period before the injury … was fairly representative of normal weekly earnings pre-injury, not to assess whether those earnings might be expected to increase in the future”.
The Applicant’s third argument was about how her breast feeding should have been managed by her employer according to section H12 of the CA which provides:
H12.1The department will support employees who chose to continue breastfeeding by:
a)Facilitating discussion between individual employees and their managers about accommodating the employee’s lactation needs and practical arrangements to meet those needs;
b)Planning for and providing access to the most suitable facilities;
c)Providing paid lactation breaks of up to 10% of the employee’s working time; and
d)Providing telephone access to relevant free breastfeeding support services.
H12.2 An employee may access the flexible working hours arrangements or personal/carer’s leave to access support or treatment in relation to breastfeeding.
The Acting Assistant director, HR Support – Programmes, Health & Payments Reform, People Services Division | Corporate Enabling Group, the Department, sent the Applicant an email of unknown date, responding to a series of requests made by the Applicant in an email dated 20 June 2019 including requesting “a copy of the (Department) Breastfeeding policy in accordance to the 2011-2014 Department Certified Agreement as Lactation is mentioned in that agreement, specifically at H12”. The writer stated:
You also accurately quoted the relevant section ‘H12 Lactation Breaks’ of that Agreement. I can confirm the department did not have a breastfeeding policy relevant to the Agreement (2011 – 2014).[19]
[19] Exhibit A18.
The Applicant has had a longstanding issue with the Respondent about breast feeding/expressing milk in the workplace.
On 16 February 2008, the Applicant sent an email to Ms R asking whether her employer had a breast feeding policy for women returning to work after the birth of a child. She stated that she would be breast feeding for at least two years and wanted to know if she can have a baby brought to work to breast feed at lunch, whether she will have breaks to express at morning and afternoon tea and whether the team coach or manager needed to provide her with a safe, hygienic lockable area to do that, such as a silent room or meeting room. She referred to her last job where she was entitled to 15 minutes “on top of my morning tea, lunch and afternoon tea” to express milk and asked if that applied.
Ms R replied on 18 February 2008.[20] She told the Applicant that there was no policy about breast feeding and the arrangements may be agreed with managers and individual staff.
[20] Exhibit A7.
In 2010 there was the following email sequence in relation to the Applicant’s then return to work after a period of maternity leave. On 6 July 2010, the Applicant sent Ms O an email about various matters relating to her return to work on 3 August, including that:
I require a 1hr lunch break in order to express breast milk from 12 pm.
On 20 July 2010, the Applicant sent Ms R an email including the email she had sent Ms O on 6 July 2010, stating that she had not received a reply from Ms O and asking if there was a time limit for Ms O to reply. She noted that she had to give notice for child care and after school care.
The Applicant wrote in her ‘Supplementary’ Statement of Facts, Issues and Contentions that Ms R advised that there is no policy and it was up to the manager to approve, and her manager did not approve of breastfeeding in the workplace or the expressing of milk.
Breast feeding was also an issue after the Applicant returned to work in 2012. In her statement dated 30 July 2015, Ms G stated that she felt that the Applicant “was quite high maintenance in terms of her various issues” which included her inquiry about her right to utilise a breast-feeding room. Ms G said that she was not aware that the Applicant was breast feeding at the time. The Applicant said that she had to express milk in the toilets.
The Applicant calculated various periods of time for lactation breaks she had taken. However, there is no suggestion on the evidence that she had negotiated payment for lactation breaks or was paid for any such break. This is not relevant to the calculation of NWE.
The only issue in relation to the calculation of NWE was the Applicant’s hours of work. For the reasons given above, I find that the Applicant’s normal hours of work were 29.5.
DECISIONS
In proceedings 2018/3869, the reviewable decision dated 4 June 2018 is set aside and in substitution the decision is made that Duromine is reasonable medical treatment obtained in relation to the Applicant’s accepted injury, pursuant to section 16 of the Act.
In proceedings 2018/4369, the reviewable decision dated 23 July 2018 is affirmed.
I certify that the preceding 77 (seventy -seven) paragraphs are a true copy of the reasons for the decision herein of Mrs J C Kelly, Senior Member
.......... ..[sgd]............................................................
Associate
Dated: 1 July 2020
Date(s) of hearing: 22 and 23 July 2019 Applicant: In person Solicitors for the Respondent: Mr M Snell - Lehmann Snell Lawyers
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