Grundy and Comcare
[2007] AATA 2045
•12 December 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 2045
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A2006/305
GENERAL ADMINISTRATIVE DIVISION ) Re MAURENE GRUNDY Applicant
And
COMCARE
Respondent
DECISION
Tribunal Mr S. Webb, Member
Dr M. D. Miller AO, MemberDate12 December 2007
PlaceCanberra
Decision The decision under review is affirmed. ...........signed...................................
Mr S. Webb, Presiding Member
CATCHWORDS
COMPENSATION - accepted injuries - RSI - reactive depression - aggravation of fibromyalgia - determination to cease liability to pay compensation for incapacity and medical treatment expenses - Applicant's evidence unreliable - causal nexus to employment not established - decision affirmed
Safety, Rehabilitation and Compensation Act 1988 ss 4, 14, 16, 19, 20
Asioty v Canberra Abattoir Pty Ltd (1989) 167 CLR 533
Comcare v Sahu-Kahn [2007] FCA 15
REASONS FOR DECISION
12 December 2007 Mr S. Webb, Member
Dr M. D. Miller AO, Member1. Maurene Grundy successfully claimed compensation in relation to an occupational overuse injury, referred to as ‘RSI’, in her employment by the (then) Department of Industrial Relations (‘the Department’). Issues of bullying and conflict in the workplace were in the background of the claim. Ms Grundy was paid compensation and undertook a rehabilitation program. In the course of the rehabilitation program she retired from Commonwealth employment. Subsequently Comcare accepted liability for reactive depression and aggravation of fibromyalgia, and ceased payment of compensation in relation to ‘RSI’. The latter determination concerning ‘RSI’ was ultimately affirmed by a consent decision of the Administrative Appeals Tribunal. Ms Grundy was paid compensation for incapacity and medical treatment expenses for a number of years. In October 2004, Comcare reviewed her case and determined to cease payment of compensation. That determination was affirmed on reconsideration and is presently before this Tribunal for review.
2. At the outset we note that the parties informed the Tribunal that the facts concerning Comcare’s acceptance of liability are not in issue. Thus it is not necessary to set out much of the detailed history of Ms Grundy’s case, even though we have given careful consideration to medical, rehabilitation and other documents from the period preceding the decision under review.
3. On 11 November 1985, Ms Grundy claimed compensation in relation to ‘RSI’ as a result of “sustained written work”[1]. On 14 March 1986, Comcare accepted Ms Grundy’s claim, with a deemed date of injury of 5 February 1985.[2] In the period to 1988, Ms Grundy complained of symptoms and was at various times incapacitated for work.[3] She was assessed for retirement on invalidity grounds.[4] In a progress report dated 27 May 1991, Jenner Young, REACT rehabilitation consultant, set out the outcomes of Ms Grundy’s rehabilitation plan, including her acceptance of a redundancy package, and stated that “Ms Grundy’s occupational overuse injury is no longer of any issue but she continues to experience difficulty with self motivation that obstructs her capacity to pursue and complete goals”.[5]
[1] T6 folio 64.
[2] T8 folio 69.
[3] T9 and T10 refer.
[4] T11 and T12 refer.
[5] T17.
4. We note in passing that Ms Young’s statement that Ms Grundy had “been on sick leave continuously” prior to the cessation of her Commonwealth employment is not consistent with the report by Mr David Segrott, rehabilitation manager, on 29 January 1993, that Ms Grundy “[built] up to full time hours during the period up to September 1989… Ms Grundy continued to work full time until July 1991 when she accepted a redundancy package from her employer”.[6] Other materials indicate that Ms Grundy suffered a period of total and partial incapacity for work as a result of her accepted injury, the last of which was in May 1990.[7]
[6] T21 folio 96.
[7] T36 folio 133 refers.
5. Ms Grundy ceased her employment by the Commonwealth on 19 July 1991.[8]
[8] T18.
6. In a final rehabilitation report dated 30 July 1991, Ms Young stated that Ms Grundy had achieved physical stability, but she had not achieved emotional stability, and had only partially achieved vocational stability.[9] Ms Young then noted that “Clinical Stability pertaining to non-determined issues was yet to be achieved”[10] and:
“Ms Grundy did not gain appropriate employment nor pursue her vocational options offered due to predisposing factors of a non-determined nature.
Ms Grundy was not job seeking at the time of case closure as she felt her priority was to pursue clinical stability through avenues of her own choice.
I am aware that these avenues did not address the Occupational Overuse Injury, but addressed motivational and emotional/psychological issues identified through the course of Rehabilitation.
…
I would also conclude that Ms Grundy’s determination of Occupational Overuse Injury is no longer an obstruction to her return to gainful employment.”[11]
[9] T19 folio 89.
[10]T19 folio 91.
[11] T19 folios 92-93.
7. On 25 September 1992, Dr J.L. Sanderson wrote to Comcare about Ms Grundy’s “changed symptomatology and diagnosis”, in particular, her complaints of “severe continuing fatigue, muscle pain, confusion and some depressive symptoms” that “began developing during the RSI period”, which the Doctor diagnosed to be Chronic Fatigue Syndrome.[12]
[12] T20 folio 94.
8. On 25 October 1993, Comcare determined that Ms Grundy was not entitled to incapacity payments in relation to her accept RSI injury.[13] That determination was affirmed on 29 April 1994.[14]
[13] T31 folio 122.
[14] T36.
9. On 20 February 1995, Ms Grundy completed a claim for compensation.[15] On 20 July 1995, Comcare determined to accept liability in relation to aggravation of fibromyalgia and secondary reactive depression.[16] Disputation continued in relation to Ms Grundy’s claim. The determination, ultimately, was affirmed by the Tribunal in a consent decision.[17] Subsequently, Ms Grundy received compensation for incapacity and medical treatment expenses, and a rehabilitation program.
[15] T43.
[16] T49 folio 182.
[17] T50.
10. On 14 October 2004, Comcare determined that Ms Grundy was not presently (as of 7 October 2004) entitled to compensation for incapacity or medical treatment expenses.[18] On 23 November 2006, the Tribunal extended the time in which Ms Grundy could seek reconsideration of the determination.[19] On 19 December 2006, Comcare decided to amend the determination. Unhappy with that result, Ms Grundy applied for review by the Tribunal.
[18] AT4 folio 7.
[19] AT7.
11. The issue for determination, therefore, is whether Ms Grundy is entitled to compensation for incapacity or medical treatment expenses in relation to her accepted injuries from 7 October 2004 to the present. For that purpose, it is necessary to address the following questions:
(a)Does Ms Grundy suffer incapacity for work as a result of her accepted injuries?
(b)Does Ms Grundy require medical treatment in relation to those injuries?
12. In Ms Grundy’s submission, she has continued to suffer from physical and psychiatric conditions, however diagnosed, that are materially connected to her Commonwealth employment. She asserts that her pain symptomatology is genuine and that she has a genuine pain condition of a chronic nature. Ms Grundy says that her psychological condition was materially contributed to by a number of work-related factors including interpersonal difficulties, harassment and bullying. She says that the physical disability caused by her work-related injury and the loss of her career also contributed. In Ms Grundy’s submission, the majority of the medical evidence supports her claim for total incapacity and medical treatment expenses as a result of her compensable injuries.
13. As will appear, we do not agree.
14. Under the Safety, Rehabilitation and Compensation Act 1988 (‘the Act’) Comcare is liable to pay compensation to an injured employee if the employee suffers incapacity for work as a result of an ‘injury’ (ss19-21A) and if the injury requires medical treatment that it is reasonable for the employee to obtain (s.16).
15. There are two aspects of Ms Grundy’s case: pain and depression. However, before addressing each of these aspects it is necessary to deal with issues of credit.
credit
16. We find that Ms Grundy’s evidence is not reliable. We do not reject her evidence absolutely, but will proceed cautiously and will not accept her evidence concerning controversial points unless it is corroborated by reliable evidence.
17. We are satisfied that in giving her evidence, Ms Grundy was selective and not fully frank. As it appears to us, she was prone to highlight, embellish or exaggerate matters that may support her claim, and to withhold or diminish the true significance of other matters. As it appears to us, Ms Grundy demonstrated an ability to recall details of events if she thought the particular point may assist her case, but had difficulty recalling events or activities that may not support her case or that may contradict her claim. Her evidence was infected by serious inconsistencies when compared to documents that are contemporaneous with events in issue. It appears that Ms Grundy was selective in the histories she provided doctors and medico-legal experts who examined her in relation to these proceedings.
18. There is compelling material before us that strongly suggests Ms Grundy has sought to withhold relevant matters from doctors who have examined her. It appears that Ms Grundy travelled overseas on a number of occasions, including in 2000 and 2003, to visit friends in France. On 26 August 2000, during one such trip, she was violently assaulted in Madrid and suffered injuries to her larynx and neck. She was taken to a hospital and later, on returning to Australia, obtained medical treatment from Dr Sanderson.[20] As can be seen from the Doctor’s clinical notes, Ms Grundy’s injury was serious enough to warrant radiological investigations and referral to a specialist. On 20 September 2000, Dr Sanderson noted that she was depressed. Subsequently on 24 January 2001, the Doctor noted “now 5/12 post assault still has voice problems/bilateral hearing trouble”, and on 28 February 2001, “6/12 post assault. Not doing well, spends lots of time in bed. Some cx node enlargement… Diagnosis: PTSD”. Subsequently on or about 22 March 2001, it appears that Ms Grundy confronted a burglar in a house at Cronulla but sustained no injuries – by her account the burglar ran away.
[20] Exhibit R1, clinical note dated 31 August 2000 refers.
19. On that evidence it is plain enough that the Madrid incident, at least, is a matter of significance relevant to Ms Grundy’s psychological condition after 2000.
20. However, Ms Grundy omitted to inform Dr H. Veness, her treating psychiatrist from 15 September 2003, about the incidents in Madrid and Cronulla, or about Dr Sanderson’s diagnosis of PTSD. Dr Veness referred her to Dr R. Tym, psychiatrist, for a second opinion. There is no evidence that Ms Grundy informed Dr Tym about these matters, and we are reasonably satisfied that she did not. It is unclear on the materials before us whether Ms Grundy informed her treating psychologist, Ms A. Hamilton. We note that Ms Hamilton did not refer to these matters in her report dated 22 September 2004, however, she was not called to give evidence and the point could not be tested. Similarly, it appears that Ms Grundy did not inform Dr Brown, Dr Youssef, Dr Cohen, Dr Knox or Dr Eaton about these matters. However, Dr Eaton reports that Ms Grundy informed him about a fractured heel and an incident in a car park in which “another driver made rude gestures and then reversed over her foot”.[21] Ms Grundy’s explanation that she did not consider the incidents in Madrid and Cronulla to be significant or relevant is simply not credible. One is left to wonder what other matters Ms Grundy may have omitted to disclose to the doctors who have treated or examined her, or to this Tribunal, because she did not consider them significant or relevant.
[21] Exhibit A2, p4.
21. As can be seen, Dr Veness, Dr Brown, Dr Youssef, Dr Tym, Dr Knox and Dr Eaton did not have a complete and accurate history. With respect to the doctors, their evidence concerning the correct diagnosis and attribution of Ms Grundy’s condition is compromised and rendered unreliable. We make that observation without being critical of the doctors concerned. The simple fact is that Ms Grundy was less than frank and was selective in the matters she disclosed to them in a clinical context.
22. Ms Grundy attempted to diminish the significance of these events in her evidence, asserting that an incident in 1986 involving a supervisor, Mr D. Poulter, was of much greater significance. By Ms Grundy’s own account, Mr Poulter was affected by alcohol and “swung a punch” at her over a desk in the premises of the Department of Industrial Relations - the punch did not connect. Ms Grundy purportedly made a complaint about the incident and continued in her employment. There are no documents in the materials before us that corroborate Ms Grundy’s account.
23. We note that there is no reference to the alleged incident involving Mr Poulter in the contemporaneous documents (including documents relating to Ms Grundy’s claim for compensation) to which we were taken. The alleged incident was not specifically referred to by any doctors who treated or examined Ms Grundy at the time or subsequently prior to the determination to cease her compensation payments in October 2004.[22] The earliest reference to the alleged incident in the materials before us appears in Dr Veness’ referral to Dr Tym dated 2 June 2006.[23]
[22] see T5, T6, T7, T12, T14, T20, T22, T37, T38, T48, T54 and T55 for example.
[23] Exhibit A3, document I.
24. Dr Tym diagnosed Post Traumatic Stress Disorder and reported that “there is clear evidence of [Ms Grundy] having recurrent experiential icon-type visual memory flashbacks of certain extremely frightening-to-her experiences whilst at work in 1985” of which the alleged incident with Mr Poulter was the “most distressing icon”.[24] It is surprising that Dr Tym makes no reference to the incidents in Madrid and Cronulla. The Doctor was not called to give evidence and no explanation is given. Nevertheless, we infer that the Doctor was not aware of these incidents and the injuries Ms Grundy suffered.
[24] T86 folio 340.
25. Dr Tym reported that “By [Ms Grundy’s] account, whenever she has been examined by anyone other than yourself [Dr Veness] and myself, no one has examined her vision and found the persistent peripheral oscillopsia – which is obviously an abnormal phenomenon – nor have they asked her about the recurrent iconic-type visual memory flashbacks which are so disturbing to her”.[25] It is simply inconceivable that Ms Grundy merely omitted to make any reference whatsoever to the alleged incident involving Mr Poulter for want of being asked about ‘visual memory flashbacks’ by treating or examining doctors. The medical reports in evidence set out detailed histories that were provided by Ms Grundy. We are satisfied that examining doctors asked Ms Grundy about significant events in relation to her claimed symptoms and reported what they were told. Thus, it was for Ms Grundy to inform the doctors about any significant or relevant event in her history. As it appears to us, the alleged incident involving Mr Poulter only recently became a matter of significance in Ms Grundy’s mind, in or about 2006, and its significance may be related to the decision to cease payment of compensation benefits.
[25] T86 folio 341.
26. If, as Ms Grundy presently asserts, the alleged incident involving Mr Poulter is of greater significance than the violent assault in Madrid in August 2000, which resulted in injury and a diagnosis of Post Traumatic Stress Disorder, it would be reasonable to expect her to raise it at the time or subsequently with her doctors, in a clinical context. We are reasonably satisfied that she did not. We do not accept that Ms Grundy’s present account of the significance of this incident, if it occurred at all, is reliable.
27. Not one of the psychiatrists and psychologists Ms Grundy consulted in the years prior to 2000 diagnosed a Post Traumatic Stress Disorder. The first reference to Post Traumatic Stress Disorder is by Dr Sanderson on 28 February 2001, in relation to the Madrid incident.[26] Subsequently Dr Veness referred Ms Grundy to Dr Tym for a second opinion and Dr Tym diagnosed Post Traumatic Stress Disorder with iconic flashbacks to the incident involving Mr Poulter.[27] He stands alone in that regard. However, Dr Veness and, in all likelihood, Dr Tym, were not aware of the incidents in Madrid and Cronulla. With respect to Dr Tym, with reference to the period from 7 October 2004 to the present, we are not persuaded that Ms Grundy has suffered a Post Traumatic Stress Disorder as a result of the alleged event involving Mr Poulter.
[26] Exhibit R1.
[27] T86 folio 340.
28. We note that Dr Veness and Dr Knox were surprised that Ms Grundy had not disclosed the violent assault in Madrid and the injuries she suffered, and that both doctors considered this incident may be significant and relevant to consider in relation to the diagnosis and attribution of her complaint. Both Doctors, however, gave evidence that the alleged incident with Mr Poulter was also significant as Mr Poulter was her supervisor and the incident occurred unexpectedly in Ms Grundy’s workplace. There are three things to say about this. First, there is nothing to corroborate Ms Grundy’s account of the alleged incident in 1986. Second, Ms Grundy did not raise the matter until 2006, despite consulting many doctors, psychiatrists and psychologists over the intervening 20 year period. Third, Ms Grundy is not a reliable witness.
29. Before moving on from matters of credit, we are compelled to note that Ms Grundy has given inconsistent accounts of her symptoms and her capacity to undertake activities, including gardening, woodwork, domestic chores and community work.
30. On 13 April 2004, Dr Veness reported that Ms Grundy “is an accomplished wood turner and has been involved in the activities of the Woodworkers and Woodturners Guild. However, aches and pains in her back preclude woodworking activities. Moreover, she suffered from right/left disorientation and this played havoc with woodworking tools as well as causing problems with driving. Although she has ‘got on top of that now’, there remains a fear of taking it up again”.[28] However, only 2 days later on 15 April 2004, Dr Brown reported that Ms Grundy “said that she has no current interests or activities”[29] and that “repetitive activity worsens [aches and pains in her neck, shoulders, hands, chest, lower back, buttocks, legs and feet] and so she is unable to persist with the housework or sit long in front of a computer”[30]; she was “unable to clean the house” and the washing “piles up to be done”.[31] On 29 April 2004, Dr Youssef reported that “Over the past 12 months [Ms Grundy] has been able to do some washing and hangs out the clothes”,[32] but she does not do any cleaning or gardening. However, the Doctor reported that, on examination, Ms Grundy had “roughening over the pulps of the right thumb and index finger and some dirt”[33] and “roughening over the knees and she indicated that this was due to prolonged kneeling”[34]; “she admitted that she actually did do some gardening”.[35] When asked to explain these reports, Ms Grundy denied doing any gardening and suggested that roughness of the knee was a family characteristic. We do not accept that explanation. We note that on 19 November 2003, Ms Grundy complained to Dr Sanderson about “hand coordination following using whipper snipper”.[36]
[28] T67 folio 253.
[29] T68 folio 263.
[30] T68 folio 265.
[31] T68 folio 262.
[32] T69 folio 285.
[33] T69 folio 286.
[34] T69 folio 290.
[35] T69 folio 286.
[36] Exhibit R1.
31. On 17 January 2005, Dr Cohen reported that Ms Grundy complained of “pain in the neck (with now reduced frequency of headaches), of pain in the left suprascapular region, of burning pain in the right forearm, loss of strength in the hands, occasional soreness in the fingers to touch, low back pain, stiffness and soreness of the calf muscles” and reported “pain varying according to activity” with “particular difficulty with prolonged standing and with bending”.[37]
[37] AT9 folio 24.
32. On 1 March 2007, Dr Knox reported that Ms Grundy told him that “she has ‘got stronger’ in respect of her physical health in the last year approximately” but complained of “‘phases of pain’ in many areas of her body with her mentioning the ‘shoulders, arms, hands and back’”, and that “she ‘can’t stand for a long time, I trip over, I’m unbalanced.’ She undertakes light activities about the home and struggles with tasks such as hanging out the washing and taking out the garbage”.[38] On 22 April 2007, Dr Eaton reported that Ms Grundy did no outdoor activities such as gardening and complained that “heavier chores had become more difficult over the past few years” and reported “extended periods of sitting, standing and walking to be painful”.[39] Dr Eaton noted that Ms Grundy was limping on the day he examined her “because she dropped a hammer on her right great toe on the previous day”.[40]
[38] Exhibit A1, p2.
[39] Exhibit A2, p4.
[40] Exhibit A2, p1.
33. Furthermore, when asked by Dr Miller to describe the effects of performing woodworking activities, Ms Grundy gave evidence that she felt jittery and confused, being aware of safety issues with the equipment, and that concentration was a problem. She explained that she had “difficulty with the physical side of it, for example sanding” and then stated that she would grit her teeth and “ignore the pain signals”.[41] Ms Grundy’s evidence on this point is difficult to reconcile with her account of suffering severe activity-related pain (“9 to 12 out of 10” on a pain scale). One would expect a person suffering genuine severe activity-related pain to rank it highly as a powerful factor precluding the particular activity. In Ms Grundy’s case, it appeared to us that her reference to pain in relation to wood working activity was an afterthought without genuine basis.
[41] Applicant’s evidence, 21 November 2007.
pain
34. Considering the history of Ms Grundy’s case, it appears to us that her complaints of pain are not explained by objective or demonstrable physical pathology. Whether they ever were is moot, but that matter is not presently in contention and we make no findings in relation to it. Essentially, the doctors who have examined and assessed Ms Grundy’s condition over a long period have relied upon the history she provided and her complaints of symptoms, as well as clinical observations and findings. We note that Ms Grundy’s complaints of pain have been described or labelled as fibromyalgia, cervicobrachial pain syndrome, neuropathic pain, psychogenic pain, somatic pain, and a pain disorder.
35. Complaints of pain are not amenable to objective testing. As pain is a subjective experience, in order to properly assess the merit of claims made, one must assess the reliability of the information put forward by the claimant and the veracity of the symptoms complained of and their effects. This is the task that must be undertaken to properly determine the diagnosis and attribution of Ms Grundy’s complaints of pain.
36. Unfortunately for Ms Grundy, her claim falters at this first hurdle.
37. We are satisfied that Ms Grundy’s claims and assertions about her pain symptoms and the extent of her consequent alleged incapacity are not made out. Her evidence is selective and inconsistent, and cannot be relied upon. Her case relies on medical reports that have been based on incomplete and unreliable information she has provided. With respect to the doctors concerned, such reports are not reliable evidence concerning the attribution of Ms Grundy’s claimed symptoms, nor are they reliable evidence concerning the extent of her claimed incapacity and the need for medical treatment.
38. If Ms Grundy’s complaints of pain since October 2004 are genuine, and there is considerable doubt about that point, it is probable that they are psychogenic and a response to stress. We accept that Ms Grundy was bullied and injured in her previous employment. That is not in question here. However, we are not persuaded that her previous employment is a material factor in her complaints of pain at least from October 2004. In all likelihood, as it appears to us, Ms Grundy has been exposed to significant stressors since she ceased obtaining psychological treatment in 1998, including the violent assault in Madrid, and those stressors caused her to experience fresh symptoms that required medical treatment. The occurrence of these events almost 10 years after Ms Grundy ceased her previous employment is significant not only because Ms Grundy did not disclose this information to a number of doctors, but also because they intruded upon the previously accepted causal nexus between her presenting complaints and her injury in employment. That causal nexus is, we find, rendered materially redundant by the new intervening factors that occurred in 2000 and thereafter. There is some similarity in the nature of Ms Grundy’s complaints of pain before 1998 and after 2000. However, the evidence before us does not establish, as a matter of probability rather than mere possibility, that her complaints of symptoms after October 2004, at least, are attributable to her previous injury in employment.
39. We are reasonably satisfied that Ms Grundy’s previous injury in employment did not materially contribute to cause her complaints of pain from 7 October 2004, however described or labelled. For this reason, we are satisfied that Ms Grundy’s assertions and claims in relation to pain are not made out on the balance of probabilities. It follows that any incapacity for work or medical treatment that is related to those complaints and symptoms is not compensable under the Act. We so find.
depression
40. We are reasonably satisfied that Ms Grundy was not suffering from a work injury in the form of depression from at least April 2004, and in all likelihood from before 2000, and so find.
41. We note that in April 2004, Dr Veness diagnosed Chronic Major Depressive Disorder which he attributed to Ms Grundy’s Commonwealth employment prior to 1990. However, Dr Veness was not aware of the incidents that had taken place in Madrid and Cronulla in 2000. Thus, with respect, his attribution of the depressive disorder to employment is cast into doubt. When asked about the significance of these intervening incidents, Dr Veness agreed that they were significant factors that he should have been informed about, but this did not alter his diagnosis of depressive illness. We note that Post Traumatic Stress Disorder was diagnosed in 2006 by Dr Tym on referral by Dr Veness. It appears to us that Dr Veness agreed with Dr Tym in relation to Post Traumatic Stress Disorder and amended his earlier diagnosis to include Post Traumatic Stress Disorder features.
42. Dr Tym concluded that Ms Grundy had been misdiagnosed as suffering from a depressive illness, when in his opinion, the problem was related to post traumatic stress which he attributed to Ms Grundy’s previous employment. However, it is probable that Dr Tym was not aware of the violent incident in Madrid in August 2000. His conclusions about the attribution of the stress disorder he diagnosed cannot, with respect, be relied upon. Dr Brown did not diagnose any depressive illness or stress disorder in April 2004, “she was not significantly depressed when I saw her”.[42] However, Dr Brown accepted that Ms Grundy may have suffered from an Adjustment Disorder with Depression or a Major Depressive Episode of a Reactive type in the past. Dr Brown diagnosed Undifferentiated Somatoform Disorder and considered that it was possible “that her presentation has come to have a substantial degree of malingering”.[43] We prefer Dr Brown’s opinion. Dr Brown’s assessment is consistent with our assessment that Ms Grundy’s presentation is not reliable.
[42] T68 folio 274.
[43] T68 folio 274.
43. We note that on 22 September 2004, Ms Hamilton reported strong views about Ms Grundy’s case, contesting matters raised by Dr Brown and strongly asserting that Ms Grundy suffered from a work-related Depressive Disorder[44]– “chronic depression related to fibromyalgia and loss of career due to the pain experienced from the above, and to workplace harassment and bullying”[45]. It is not clear to us, and there is no evidence that Ms Hamilton was aware of the incidents in Madrid and Cronulla. While we note that Ms Hamilton states that “I have been [Ms Grundy’s] treating psychologist since 20/3/96”[46], in fact, she did not treat Ms Grundy in the period from December 1998 to April 2001. We accept that after April 2001, Ms Grundy consulted Ms Hamilton on 71 occasions and obtained cognitive behaviour therapy for management of pain and depression. Dr Sanderson noted depression on 18 May 2000 and “anxiety/depression ongoing pain + acute spikes of pain” on 29 June 2000.[47] However, it does not follow that the pain and depression Dr Sanderson noted were the result of workplace injury. In his 18 May 2000 note, Dr Sanderson records “[Mother] died 1/2000. Most colleagues leaving PS. Still fatigued/myalgic. Needs counselling, spec intervention depressed +++”, and in his 29 June 2000 note, the Doctor records “Comcare. In relationship – agg bad sleep patterns”.[48] Thus, on that evidence, it appears that Ms Grundy’s depression was related to her mother’s death, her feelings about her friends leaving the Australian Public Service and her relationship with Comcare. We are reasonably satisfied that these proximate factors were operative and materially contributing to her complaints about depression at that time.
[44] T77 folio 316.
[45] T77 folio 317.
[46] T77 folio 316.
[47] Exhibit R1.
[48] Exhibit R1.
44. We also note that Dr Sanderson wrote a letter of referral to Dr Veness on or about 18 May 2000, and noted on 19 June 2000, that Ms Grundy “Still hasn’t seen [Dr] Veness”. In fact Ms Grundy did not consult Dr Veness until 15 September 2003[49] and consulted Ms Hamilton for treatment from April 2001. On 25 June 2001, Dr Sanderson noted that Ms Grundy was “on Zoloft”.[50] In the period from 29 June 2000 to 25 June 2001, Dr Sanderson does not record any further notes in relation to depression. In July 2000 Dr Sanderson requested a number of pathological tests: “FBE, E/LFTs, C-REACTIVE PROTEIN, ANTI-NUCLEAR ANTIBODIES, IRON STUDIES, RHEUMATOID FACTOR” and administered a Ferrum H injection on 20 July 2000.[51]
[49] T67 folio 251.
[50] Exhibit R1.
[51] Exhibit R1.
45. Ms Hamilton asks the question if it was accepted that Ms Grundy was incapacitated by her work injuries in 1997 “why should it suddenly be different now [in September 2004]?”[52] We are reasonably satisfied that a number of factors intervened, including the death of Ms Grundy’s mother, concerns about her friends leaving the Public Service, the incident in Madrid, and the incident in Cronulla. These factors, and in all likelihood symptoms of iron deficiency, were operative factors in Ms Grundy’s symptomatology in April 2001. We do not accept Ms Grundy’s assertion that injury-related pain and depression continued unabated after 1998. In the period from 1998 to 2001, Ms Grundy was attending upon members of her family in Sydney. Her parents died. We accept that this period was difficult for her. Nevertheless, it was open for her to obtain treatment if it was required. As it appears to us, it would be reasonable to expect a person who is genuinely suffering from depression and “severe” stress-related psychogenic pain to seek out treatment during a period of increased stress. There is no evidence that Ms Grundy did. Nor is there reliable evidence that symptoms of depression and pain continued through this period.
[52] T77 folio 317.
46. As it appears to us, it is probable that Ms Grundy is reactive to stress that she finds difficult to cope with, whether as a result of personality traits or a constitutional predisposition, and experiences such stress as pain; her pain is psychogenic. Thus, we are reasonably satisfied that the stress Ms Grundy experienced as a result of the death of her parents, especially her Mother, the stress she experienced as a result of her curtailed career and constrained financial prospects in comparison to her friends retiring from the Public Service, and the stress she experienced as a result of the violent assault in Madrid and the subsequent confrontation with a burglar in Cronulla, gave rise to the symptoms of psychogenic pain with features of anxiety and depression from 2000 and possibly earlier. Some of the alleged symptoms about which she complained in 2000 and subsequent years were similar to her previous complaints of symptoms prior to 1998. In the circumstances it may be understandable that she asserted that these later symptoms were associated with and attributable to her previous compensable injury. Furthermore, issues of secondary gain may explain why Ms Grundy did not reveal all of the incidents to which we have referred to Dr Veness, Dr Brown, Dr Youssef, Dr Tym, Dr Knox and Dr Eaton.
47. Relying on the principles enunciated in Asioty v Canberra Abattoir Pty Ltd (1989)[53],Mr Anforth submitted that Ms Grundy’s psychological and pain complaints may be characterised as a fluctuating condition, the genesis or recurrence of which was materially contributed to by Ms Grundy’s previous employment. However, we are not persuaded to that conclusion on the available evidence as a matter of probability. As it appears to us, Ms Grundy has a long established or constitutional predisposition for reacting to stress that involves somatic and psychogenic experience of pain and other symptoms, such as anxiety or depression.[54] There is no reliable evidence that Ms Grundy’s alleged symptoms in 2000, or as of October 2004 or presently, were caused by the return of a compensable condition that had previously dissipated. Nor is there reliable evidence that her compensable injuries heightened or enhanced her constitutional vulnerability to experience psychogenic symptoms as a result of stress. Even if that were so, and we are satisfied that it is not, it would not follow that any symptoms of that kind experienced as a consequence of stress would be compensable. One must look to the operative factors of causation and determine whether a fresh injury has occurred.
[53] 167 CLR 533.
[54] Dr Brown, T68 folio 275.
48. In this case we are satisfied that new factors outside the protected employment intervened to cause Ms Grundy’s symptoms in 2000 and thereafter. We are reasonably satisfied that the symptoms of her injury abated in or about 1998. If Ms Grundy’s complaints of pain and depression in and after 2000 were genuine, it appears likely that those symptoms were the result of proximate stressful situations at that time that were not related to her previous employment. We so find.
49. Even if Ms Grundy’s previous symptoms of injury did not abate entirely in the period from 1998 to 2000, and we make no such finding, we are reasonably satisfied that new events intervened and caused Ms Grundy to obtain medical treatment from Dr Sanderson in 2000 and from Ms Hamilton in 2001. Following the test set down in Comcare v Sahu-Kahn [2007][55], having considered all of the circumstances, we are satisfied that Ms Grundy’s previous employment did not materially contribute to her symptoms in 2000, in October 2004, or subsequently to the present. We find that if Ms Grundy’s previous employment was in any way implicated in her symptoms after 2000, the extent of that contribution is insignificant and insubstantial to the extent that it is below the threshold required to be considered material. The substantial and operative causes are to be found in the events that occurred after 1998 to which we have referred that are not related to Ms Grundy’s previous employment.
[55] FCA 15.
50. With reference to the period from 7 October 2004 to the present, we conclude that any incapacity for work Ms Grundy has suffered is not related to her previous injuries in employment and that her previous injuries do not require further medical treatment.
51. Unfortunately for Ms Grundy her case rests substantially on her own evidence and the information she has provided treating doctors and medical experts. We must do the best with the available evidence, much of which is rendered unreliable. If Ms Grundy’s evidence and the information she gave the doctors whose reports are in evidence was reliable, accurate and complete, it is possible that a different result may have emerged.
52. Finally, we had the benefit of observing Ms Grundy during the course of the hearing and found her protestations of incapacity, in relation to her inability to write for any length of time without suffering an increase in symptoms for example, to be inconsistent with her apparent ability to transcribe Dr Thompson’s clinical notes and to write letters about her compensation case using a computer (many of which are in evidence). We do not accept her evidence that she would take a long time to write such letters over a period of hours or days. The evidence is plain enough that Ms Grundy has done a deal of written work of an administrative nature on her computer, in her capacity as Membership Secretary of the Wood Workers and Wood Turners Guild for example, and she has assisted her friends and others in that regard. We also noted that Ms Grundy did not appear to have any difficulty using a pen in her right hand to take notes during the hearing. Contrary to Ms Grundy’s assertions concerning her incapacity to perform administrative duties while seated for any length of time, at no point in proceedings did Ms Grundy exhibit any apparent discomfort; she gave evidence for periods in excess of one hour and was observed in the public gallery comfortably seated and taking notes for over two hours at a time. While these observations are not determinative of the outcome of this case, they are consistent with and support our substantive conclusions.
conclusion
53. Essentially, to adopt Dr Brown’s analysis,[56] Ms Grundy’s evidence lies at the heart of her case, but, unfortunately for her, we did not believe her.
[56] T68 folio 279.
54. The decision under review is affirmed.
I certify that the 54 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member
Signed: ...signed.....................................................
Jane Gribble
AssociateDate of Hearing 21, 22, 23 November 2007
Date of Decision 12 December 2007
Counsel for the Applicant Alan Anforth
Solicitor for the Applicant David Lander
Lander & Co
Counsel for the Respondent Dan Shillington
Solicitor for the Respondent Andrew Schofield
Sparke Helmore
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