Hewett and Comcare (Compensation)

Hewett and Comcare (Compensation) [2018] AATA 302 (4 January 2018)
Division:General Division
File Number(s): 2015/4950, 2015/4953, 2015/0285, 2016/0288,
2017/2841

Re:Ms Montira Hewett
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal: Ms Anna Burke, Member
Date:4 January 2018
Place:Melbourne

The decisions under review are affirmed
[sgd]........................................................................
Ms Anna Burke, Member
WORKERS’ COMPENSATION – aggravation of degenerative changes in cervical spine – aggravation of major depressive disorder - whether ongoing entitlement to medical expenses – whether permanent impairment arose as a result of surgery - conflicting medical evidence - decisions affirmed
Legislation
Safety, Rehabilitation and Compensation Act 1998
Cases
Kennedy Cleaning v Petkoska [2000] HCA 45; 200 CLR 286; 174 ALR 626;74 ALJR 1298
Ilsley v Wattyl (1997) 75 FCR 1, 144 ALR 510
REASONS FOR DECISION
Ms Anna Burke, Member
4 January 2018

Ms Hewett commenced employment with The Australian Public Service in or about 1986, first in the Department of Defence and then in the Department of Social Security and worked there for 25 years until she was retired on grounds of invalidity in April 2011. On 20 February 2004 Ms Hewett submitted an incident report noting that on 10 February 2004 at 11:35am:
“I looked up to see my computer being pushed towards me by another customer whose identity is not known. With the shock of this incident, I pushed myself backward awkwardly as I felt as if I was going to fall off the reception stool. No injury was sustained at this incident (physically), however, a Stress Contact Officer removed me from my workstation and took me to the tearoom. I was extremely and badly shaken and it has taken me some hours to regain some of my composure. I now have a very bad headache and unfortunately my heart is still racing due to the stress of the situation”.
On 16 February 2004 Ms Hewett submitted a claim for compensation under the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act). In the claim she noted the diagnosed condition of pulled neck muscles resulting from sudden jerk of the neck caused by customer hitting the computer without warning.
Ms Hewett has had a series of Comcare claims in respect of injuries:
·    July 1987 accepted claim for strained lower back, physiotherapy treatment ceased in 1990 and claim closed.
·    February 1991 accepted claim for work-related stress, treatment ceased in November 1993 and claim closed.
·    May 1994 accepted re-occurrence of anxiety symptoms following a stressful incident, psychological treatment commenced in June 1994 and ceased in June 1995 and claim closed.
·    May 1999 accepted claim for lateral epicondylitis (right) following injury treatment ceased in November 1999 and claim closed.
·    April 2002 claim for adjustment reaction as a result of workplace injury, rejected on the basis that no unrealistic expectations or demands were placed on Ms Hewett; the matter was later settled by agreement for a closed period accepted from April 2002 until June 2002.
On 5 March 2004, Comcare accepted liability under section 14 of the SRC Act in respect of accepted neck sprain as it was satisfied that Ms Hewett had suffered from an injury supported by the medical evidence as defined in the SRC Act, which had been significantly contributed to by her employment resulting from the reported incident on 10 February 2004. The incident was reported as soon as possible as required under section 53 of the SRC Act.
A psychiatric assessment of 26 June 2006 conducted for Comcare by Dr Gregory White, consultant psychiatrist, diagnosed Ms Hewett with Major Depressive Episode which he opined may have been contributed to by her employment and particularly the long-standing workplace issues, namely the incident in 2004. Comcare at some stage has accepted a psychiatric condition of “major depressive disorder recurrent episode” as a secondary condition to the neck sprain.
In February 2014 Ms Hewett, as a public patient, underwent surgical arthrodesis by way of discectomy and fusion at level C3/4 of the cervical spine. Comcare did not accept liability for this procedure.
On 4 September 2015 Comcare (2015/4953) affirmed the determination of 18 May 2015 to accept 14 psychological consultations under s 16 of the SRC Act. The review officer stated:
“This means that for your psychological counselling to be reasonable for you in your circumstances, I must be satisfied that it fits within the clinical framework. That is, it must be goal orientated, evidence-based and clinically justified.
Once it was pointed out to Dr Power that the current psychological counselling showed the lack of effectiveness of psychological counselling and did not empower you to manage your ongoing injuries, she agreed that it was reasonable to implement a slowly reducing treatment schedule. I also note that Dr Power has advised the current treatment sessions were discussing matters and issues that were not related to your accepted compensable condition and circumstances.
On 7 September 2015 Comcare (2015/4950) revoked the determination of 6 August 2015 and instead accepted liability under s 16 of the SRC Act to pay for psychological consultations between 9 March 2015 and 31 December 2015. The reviewer noted that after completing their consideration and evaluating the evidence it was decided that determination could no longer be sustained and it had been varied. The review officer stated:
“On 6 February 2015, Comcare’s clinical panel specialist rang and spoke to Dr Power. From this telephone conversation, Dr Power stated that you have had a lot of treatment over a long period of time. The difficulties you currently talk about to Dr Power now, i.e. the family stress, are not Comcare’s liability. The clinical panel specialist stated that the treatment was not consistent with Clinical Framework, you are not learning skills to self-manage, rather you are using sessions for support and to vent about current issues.
Given this, the clinical panel specialist put forward to Dr Power that it was time to wean you from the treatment to become ready for discharge. Dr Power agreed and noted she had not intended to see beyond the plan you have completed. It was agreed to a plan for 14 sessions from 9 March 2015 to 31 December 2015, and for you to be discharged from the treatment after 31 December 2015. Dr Power thought this was a very reasonable plan.”
On 6 January 2016, Comcare (2016/0285 & 2016/0288) denied liability for medical expenses in relation to Ms Hewett’s condition of neck sprain and denied liability for a permanent impairment of the neck sprain. The review officer stated:
“Based on the medical evidence outlined above and a review of your file I am not satisfied that your current condition and requirement for medical treatment is a result of the workplace incident that occurred on 10 February 2004.
Mr Xenox stated that you sustained a flare up of neck and initial interscapular pain radiating to the left shoulder in 2013 which sounded mechanical and muscular in nature.
Mr Haig did not consider that your employment continued to contribute to your condition. He noted that your disc prolapse symptoms occurred 8 years after the workplace incident which he attributed to disc degeneration. It was Mr Haig’s belief that your initial condition was neck pain very likely due cervical spondylosis that was later superseded by a frank disc prolapse.
I note that Dr Merigan believed the workplace incident caused an acute disc injury. He did not consider that the history of your symptoms supported a degenerative process.
In this matter I prefer the opinion of Mr Hague who specialises in orthopaedics and explains how and why you experienced an increase in pain and symptoms eight years after the workplace incident.
I am not satisfied that you have a permanent impairment as a result of your workplace incident that occurred on the 10 February 2004. The surgery you had in February 2014 was not required due to your workplace injury; rather it was required due to a disc prolapse resulting from disc degeneration. Therefore any impairment resulting from this surgery is not compensable. Mr Hague did not consider the employment continued to contribute to your condition so any current impairment would not be compensable.”
On 5 May 2017 Comcare (2017/2841) denied liability to pay compensation for medical expenses under s 16 of the SRC Act for medical expenses in respect of Ms Hewett’s physical injury and psychiatric condition. The review officer stated:
My task is to determine whether you are entitled to compensation for multiple treatments including chiropractic, massage, pharmaceuticals, physiotherapy, psychologist, psychiatrist and travel costs under sections 16 of the SRC Act. In this regard, it must be shown that these treatments are in relation to your compensable condition neck sprain or major depressive episode sustained in 10 February 2004.
The medical evidence before me indicates that the requirement for medical treatment, which is the subject of this review, is not related to your accepted condition you sustained in 2004. It was Dr Haig’s specialist opinion that your current complaints are in relation to your condition of cervical spondylosis which is constitutional and degenerative in nature. He opined that this condition was unrelated to your injury in 2004. Dr Haig recommended simple analgesics for your current condition.
On 21 September 2015, 18 January 2016 and 12 May 2017 Ms Hewett applied to the Administrative Appeals Tribunal (AAT) for review of these determinations as they were:
· incorrect at law;
·the reviewable decision was against the weight of the evidence before the delegate;
·the delegate failed to take into account the operation of s 72 of the SRC Act; and
·Comcare was and is liable under the SRC act to pay compensation in respect of medical expenses under s 16 and compensation for permanent impairment under ss 24 and 27.
In August 2016 and again in February 2017 Ms Hewett was involved in motor vehicle accidents in which she sustained lower back, neck, shoulder and elbow pain and bruising for which she has had Transport Accident Compensation (TAC) claims accepted and for which she is continuing to receive compensation for medical expenses.
The application was heard from 18-21 September 2017. At the hearing Ms Hewett was represented by Mr Mark Carey of counsel, instructed by Sarah Breen of Patrick Robinson & Co. Lawyers. Comcare was represented by Mr John Wallace of counsel, instructed by Joshua Lessing of Sparke Helmore lawyers. The Tribunal was provided with documentation pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (T‑Documents, Exhibit R1). The Applicant tendered several medical reports and a substantial list of authorities. The following persons gave oral evidence at the hearing: Ms Hewett; Mr David Brownbill, consultant neurosurgeon; Doctor Remy Glowinski, consultant psychiatrist; Ms Louise Howe, physiotherapist; Mr Ronald Haig, orthopaedic surgeon and Associate Professor George Mendelson, consultant psychiatrist.
ISSUES
The Tribunal needs to consider the following relevant issues:
(i)whether Ms Hewett suffered an injury within the meaning of the SRC Act;
(ii)if so, whether the injury was contributed to a significant degree, by Ms Hewett’s employment at Centrelink;
(iii)whether Ms Hewett continues to suffer from the effects of the injury;
(iv)whether Ms Hewett suffered an impairment as a result of her injuries;
(v)if so, whether the impairment is permanent and if accepted to what degree of whole person impairment (WPI) would Ms Hewett be assessed under Edition 2.1 of the Guide to the Assessment of the Degree of Permanent Impairment (the Guide); and
(vi)if so, whether Centrelink is liable to pay compensation:
· for ongoing medical expenses and travel expenses under s 16 of the SRC Act from the determination of 27 November 2015; and
· for compensation for permanent impairment and non-economic loss under ss 24 and 27 of the SRC Act
RELEVANT LEGISLATION
Relevantly, s 14(1) of the SRC Act provides that subject to the balance of Part II, Comcare is liable to pay compensation in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
Section 4 of the Act defines an ailment to mean ‘any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development’). Relevantly, the interpretative provision at Section 4(1) provides that the words ‘injury’ and ‘disease’ have the meaning detailed in sections 5A and 5B respectively of the Act as follows:
5A Definition of injury
(1) In this Act:
injury means:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment. ...
5B Definition of disease
(1) In this Act:
“disease” means:
(a) an ailment suffered by an employee; or
(b) an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.
(2) In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:
(a) the duration of the employment;
(b) the nature of, and particular tasks involved in, the employment;
(c) any predisposition of the employee to the ailment or aggravation;
(d) any activities of the employee not related to the employment;
(e) any other matters affecting the employee’s health.
This subsection does not limit the matters that may be taken into account.
(3) In this Act:
“significant degree” means a degree that is substantially more than material.
On 6 January 2016 in accordance with the SRC Act, Comcare determined that the source of Ms Hewett’s ongoing pain was not related to her compensable condition.
Section 16 of the SRC Act states:
16 Compensation in respect of medical expenses etc.
(1)Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.
(2)Subsection (1) applies whether or not the injury results in death, incapacity for work, or impairment.
On 6 June 2016 in accordance with the SRC Act, Comcare denied a claim for impairment compensation as they did not consider the impairment resulted from an employment injury. Comcare additionally determined that neck surgery Ms Hewett had undergone was not treatment for her accepted injury.
Sections 24 and 27 of the SRC Act state:
24 Compensation for injuries resulting in permanent impairment
(1) Where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury.
(2) For the purpose of determining whether an impairment is permanent, Comcare shall have regard to:
(a) the duration of the impairment;
(b) the likelihood of improvement in the employee’s condition;
(c) whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; and
(d) any other relevant matters.
(3) Subject to this section, the amount of compensation payable to the employee is such amount, as is assessed by Comcare under subsection (4), being an amount not exceeding the maximum amount at the date of the assessment.
(4) The amount assessed by Comcare shall be an amount that is the same percentage of the maximum amount as the percentage determined by Comcare under subsection (5).
(5) Comcare shall determine the degree of permanent impairment of the employee resulting from an injury under the provisions of the approved Guide.
(6) The degree of permanent impairment shall be expressed as a percentage.
(7) Subject to section 25, if:
(a) the employee has a permanent impairment other than a hearing loss; and
(b) Comcare determines that the degree of permanent impairment is less than 10%;
an amount of compensation is not payable to the employee under this section.
(7A) Subject to section 25, if:
(a) the employee has a permanent impairment that is a hearing loss; and
(b) Comcare determines that the binaural hearing loss suffered by the employee is less than 5%;
an amount of compensation is not payable to the employee under this section.
(8) Subsection (7) does not apply to any one or more of the following:
(a) the impairment constituted by the loss, or the loss of the use, of a finger;
(b) the impairment constituted by the loss, or the loss of the use, of a toe;
(c) the impairment constituted by the loss of the sense of taste;
(d) the impairment constituted by the loss of the sense of smell.
(9) For the purposes of this section, the maximum amount is $80,000.
27 Compensation for non‑economic loss
(1) Where an injury to an employee results in a permanent impairment and compensation is payable in respect of the injury under section 24, Comcare is liable to pay additional compensation in accordance with this section to the employee in respect of that injury for any non‑economic loss suffered by the employee as a result of that injury or impairment.
(2) The amount of compensation is an amount assessed by Comcare under the formula:
($15,000 x A) + ($15,000 x B)
where:
“A” is the percentage finally determined by Comcare under section 24 to be the degree of permanent impairment of the employee; and
“B” is the percentage determined by Comcare under the approved Guide to be the degree of non‑economic loss suffered by the employee.
(3) This section does not apply in relation to a permanent impairment commencing before 1 December 1988 unless an application for compensation for non‑economic loss in relation to that impairment has been made before the date of introduction of the Bill for the Act that inserted this subsection.
THE TRIBUNAL’S CONSIDERATION AND FINDINGS
Evidence before the Tribunal
Ms Hewett
Ms Hewett described her early childhood and the economic difficulties her family faced following the murder of her father when she was only five years old, her mother’s remarriage to an Australian and her subsequent migration to Australia from Thailand at the age of nine. Ms Hewett advised the Tribunal she adapted well to life in Australia and formed friendships, completed high school and commenced studying (which she discontinued) but quickly found work within the Australian Public Service. She advised the Tribunal that she had had numerous Comcare claims over many years, most particularly one in 1989 where she suffered a psychological breakdown which she attributed to working too much and described herself as being fundamentally burnt out. She sought treatment and was prescribed antidepressants. Following this incident, she had an accepted claim, took time off work, and completed a graduated return to work at the Ringwood Centrelink office.
Ms Hewitt described at length the incident which took place on 10 February 2004 at the Centrelink office in Ringwood which led to her accepted Comcare claim. Ms Hewett was working in the reception area dealing with an age pensioner and she was seated on a high stool with a rotating seat. She noted the stool was so high that her legs dangled down with nothing to rest on as the foot rest was broken. Additionally, the back of the chair was too tall for the top of her head. She was completing work on a computer. It had a large old-fashioned style monitor fixed to a metal arm attached to the counter. There was a keyboard on the raised desk which was at an angle to Ms Hewett, and her head was down as she was entering details for the customer she was assisting at the time. As she was typing, she heard yelling from someone close by in the waiting area and then a big bang like a punch. Another customer hit the back of the computer monitor in front of her and it was suddenly coming at her head. She described how she flung herself backwards placing her left hand on the stool armrest on the right hand on the edge of the desk and bent to the right to avoid being hit by the computer monitor. She stated that the action was so violent that she wrung her neck and shoulder.

Ms Hewett advised the Tribunal that while she had witnessed other people being assaulted and abused in the Centrelink office over the years, this was the first occasion that she had experienced a physical assault herself and it had badly shaken her both physically and emotionally. Ms Hewett advised the Tribunal that her psychological state was greatly affected by the incident in 2004. However, she also stated that she always had difficulty with aggressive customers. She reported that she had been psychologically well before the incident but since has suffered nightmares, reacted very badly around sudden noises in the workplace, and to aggressive customers. She said she often felt “on edge” at work and she later requested to be taken off her duties involving public contact and the reception. The incident still has an impact. She currently does not like leaving the house, is panicked in public places such as the local supermarket, and has been trying to undertake voluntary work once a week to get herself out of the house.
Ms Hewett further advised the Tribunal that she has never been relieved of her pain in the neck since the incident in 2004. She described the pain as having been ongoing and continuous and that whilst surgery and physiotherapy have provided relief, the pain has not been completely eradicated. Ms Hewett also told the Tribunal that she had been managing the pain with analgesia, hot and cold packs in consultation with her general practitioner and physiotherapist since 2004, and that prior to the incident she was not suffering any pain in her neck.
Under cross-examination Ms Hewett was asked about her activities outside of work. She said she had been advised to try and keep up activities to help with both her psychological and physical state so she joined a gym and was playing tennis. She believed she had given up tennis in 2008, as she was no longer motivated to play. Counsel for the respondent referred to medical records obtained under summons which indicated that she was playing tennis until 2012; that she had also been bowling with her husband; and also assisting in her husband’s nursery business. Ms Hewett said she had originally played tennis on Wednesday and then was playing on Saturday, but she believed she was only filling in occasionally. She had discontinued going to the gym, and that she believes she should be assisting her husband in the business, but this was not physical or demanding work she was undertaking.
Medical Evidence
Mr Iain Kelman, Consultant Orthopaedic Surgeon
Mr Kelman did not appear as a witness at the hearing but his medicolegal report of 20 June 2006 was referred to by both the applicant and the respondent during proceedings. In the report, Mr Kelman opined Ms Hewett suffers the following:
(i)Post-traumatic stress as a result of aggressive client behaviour. I am not qualified to make further observations on this count.
(ii)I have examined and observed her carefully with respect to problems regarding her cervical spine and in my opinion there are very few symptoms and very little pain in the cervical spine at the present time and I considered the movement of her cervical spine was near to normal although there was some restriction movement upon formal examination.
…
There was no evidence of a congenital or underlying condition.
I could not determine any family issues and there were no other health issues which I could determine.
Apart from those areas already described there was no other aspect of Ms Hewett’s employment which is affecting the current condition.
I was unable to determine any factors unrelated to work.
I do not consider there is significant degradation of the cervical spine as a result of the ageing process.
…
In my opinion Ms Hewett’s employment issues contribute only to her stress problem and her employment does not continue to affect her cervical spine. I consider that condition is now resolved.
…
In my opinion the condition which contributed to Ms Hewett’s neck complaint is now ceased, however the stress situation continues.
…
In my opinion Ms Hewett does not require any further treatment for her neck in the form of physiotherapy. She is receiving massage therapy which she is funding herself and appears to gain benefit from this although it may be of a general nature.
…
In my opinion the prognosis for Ms Hewett’s neck complaint with respect to employment is good. There are other factors which are involved however and these need to be assessed by appropriate professionals.
Mr David Brownbill, Consultant Neurosurgeon
In a medicolegal report dated 30 May 2017 Mr Brownbill opined:
With pain commencing on the neck for the first time following the incident of 2004 and the continuation of pain thereafter I consider that on probability the work incident was a major contribution to the ongoing pain and later disc prolapse.
…
This lady had ongoing neck pain from the time of the incident of the 10^th February 2004 which is regarded as representing aggravation of the pre-existing degenerative changes. I consider on the basis of that aggravation of degenerative change she sustained this prolapse at C3 –4 which required surgery performed on 24 February 2014
Mr Brownbill advised the Tribunal that he examined Ms Hewett using palpation which produced pain and muscle spasm and this cannot be faked. He noted restriction of movement and that Ms Hewett advised of continuing pain from 2004 to the present date. He did not concur with the report of Dr Kelman dated 20 June 2006 which opined that the condition which contributed to Ms Hewett’s neck complaint had now ceased and the condition was now resolved, as this was not what he observed or what Ms Hewett was reporting.
Mr Brownbill had enquired if Ms Hewett had any hobbies but she said she had none. He did agree that tennis could have aggravated the pain in her neck but it was very dependent on the level to which she exercised. He did not believe that it was a whiplash type injury and that surgery seemed to alleviate the pain radiating down her arm and presented a good result.
Under cross-examination Mr Brownbill did not concur with Mr Haig’s conclusion and believed the injury was work related. He had drawn a causal link between what she was reporting and what he had found on examination. His examination had suggested some of Ms Hewett’s symptoms were ongoing. Additionally, he advised the Tribunal that whilst physiotherapy may provide some intermediate relief, it was not best practice to have indefinite physiotherapy treatment.
Doctor Remy Glowinski, Consultant Psychiatrist
In his medicolegal report of 8 September 2016 Dr Glowinski opined:
I think Montira has a significant psychiatric illness, probably a moderate severity chronic adjustment disorder with mixed anxiety and depressive symptoms and features of traumatisation. A plausible different diagnosis is of a major depressive disorder.
I note that there was no psychiatric condition prior to employment, although there are some risk factors in her background particularly concerning the timing and nature of her father’s death. It seems to me that her employment has had a material contribution in the development of her psychiatric condition.
In an addendum report of 18 August 2017 Dr Glowinski opines:
Associate Professor George Mendelson appears to have based his diagnosis of cyclothymia entirely on a letter and notes that I have written. He doesn’t appear to have any other evidence to support this diagnosis. It is bewildering to me that he regards his interpretation of my letter and notes as more relevant than my explanation.
…
Over time I have become very acquainted with Mrs Warmerdam’s [Ms Hewett’s married name] circumstances and symptoms. As outlined in my earlier report I think that she has a significant psychiatric illness, which I think is best classified as a moderate severity chronic adjustment disorder with mixed anxiety and depressive symptoms and features of traumatisation. While Mrs Warmerdam describes variations in her moods and some periods of relative good moods, I no longer consider a diagnosis of bipolar disorder or any similar illness such as cyclothymia.
…
Associate Prof George Mendelson has further stated that there is no relationship between Warmerdam’s employment and her current psychiatric state. His train of reasoning appears to be that she has had a diagnosis of cyclothymia, her condition cannot have been aggravated by her claimed injury.
…
Even allowing for associate Prof George Mendelson’s perplexing approach in reaching a diagnosis of cyclothymia, I don’t agree with his conclusion that the accepted work injury did not aggravate her psychiatric condition. The injury claim was accepted and none of the previous independent medical examiners have questioned a link between employment and her psychiatric condition. Mrs Warmerdam describes persistent symptoms since the incident which have not abated. She has not to my knowledge ever returned to her pre-injury level of functioning.
Dr Glowinski advised the Tribunal that he had been seeing Ms Hewett monthly since 2015 and that in his original examination of her he had considered bipolar disorder (sometimes historically known as cyclothymia), but had discounted this over time as he had recorded no other episodes of fluctuation of Ms Hewett’s moods to sustain such a diagnosis. He believed the diagnosis of a moderate severity chronic adjustment disorder with mixed anxiety and depressive symptoms was the most appropriate and that the work incident in 2004 had been the trigger.
Ms Louise Howe, Physiotherapist
In her medicolegal report of 23 August 2017 Ms Howe opined:
Ms Hewett presented to this clinic on the 13-02-04 stating that whilst sitting at a desk at work on 10-02-04 a client became angry, stood up and punched the back of computer, pushing it across the desk towards Montira; this resulted in her suddenly recalling backwards in her chair. She managed to save herself from falling to floor.
This mechanism of injury would have resulted in a rapid backward movement of the head on the neck, followed by an equally rapid deceleration and forward movement of the head on the neck. This is very similar to what classically occurs in a rear end motor vehicle accident and results in a typical whiplash injury, but with the directions of movement occurring on the opposite order.
She presented to this clinic on 13-02-04 complaining of headaches, dizziness and predominantly (R) sided neck pain. On initial examination she demonstrated reduced range of motion in all planes of movement due to pain. Dizziness was elicited by rotation to the neck to both (L) and (R).
She was treated over ensuing months for these symptoms which are difficult to settle fully. During this time Montira’s neck was easily aggravated if treatment was a little more vigorous than usual in an attempt to increase her reduced range of movement
Ms Howe observed in her report:
Montira reported significantly less neck pain whilst away from the work environment. She was placed on a gradual return to work plan and given some duties away from clients. This seemed helpful initially, but as her hours increased she noted an increase in (R) neck pain and began to report some symptoms of (R) parascapular pain.
…
Whilst it has to be acknowledged that she suffered a significant psychological condition after the initial assault, I have no doubt that she suffered from a physical condition as well. Her pain was often worse when anxiety peaked due to in-house working conditions – be it from client interactions of the general working climate and friction between staff members, however she continued to experience fluctuating levels of pain when she had no client contact and when the environment at work was happy and calm.
I believe that her injury in 2004 resulted not only in a physical injury to her neck but also resulted in a cascade effect on her ability to perform under pressure. As she was frequently stressed this may well have resulted in additional load being placed on upper limbs and spine. The long-sought ergonomic modifications came after great delays and significant amounts of frustration on both the part of Montira and myself.
Ms Howe advised the Tribunal that she had been a physiotherapist for 35 years and had been treating Ms Hewett since 2004. She stated that she shared rooms with Ms Hewett’s general practitioner.
Ms Howe further described her treatment for Ms Hewett that each session she would palpitate the affected area and she would see muscle spasm present. She had attempted to ensure appropriate workplace ergonomics were put in place to assist Ms Hewett but this had been a frustrating and often fruitless exercise. She encouraged her patients to engage with activities of daily living, but also to manage the pain; so she would have encouraged Ms Hewett to do what she felt she was able to do without aggravating her injury. Whilst tennis may have had an impact on Ms Hewett’s neck injury, her workload was a far greater contributor. Ms Howe attributed the neck injury to the 2004 incident, which she described as a rapid recoil of the neck, which would have continued to cause significant pain and stiffness in the neck area.
Ms Howe had been trying to assist Ms Hewett to independently manage her condition through education, home exercises, and applying heat and ice packs to the affected area. But Ms Howe advised that the pain was persistent and that only ongoing manipulation and treatment in her rooms seemed to be providing any relief for Ms Hewett’s pain.
Mr Ronald Haig, Orthopaedic Surgeon
Mr Haig, in a medicolegal report dated 11 September 2015 opined:
The relationship between her current condition and early employment is not simple. It is true she sustained an injury to neck with resulting in continuing symptoms after the incident at work in February 2004.
She continued with neck symptoms; however, it was not until 2012/2013 that she started to develop shoulder and in particular left upper extremity symptoms. I would suggest that these symptoms were more due to age-related degenerative change in the neck than to the incident work in 2004. The indications for surgery were the development of left upper extremity symptoms, not the pain in the neck per se.
…
I believe her initial condition which was neck pain very likely due to cervical spondylosis was later superseded by a frank disc prolapse. There were no further incidents of trauma. I believe the development of that was due to continued disc degeneration.
…
I do not consider that employment continues to contribute to her condition.
Mr Haig advised the Tribunal that Ms Hewett’s injury was not work-related as the incident was not of a violent nature and so could not lead to the injury outcome as described. He said the causation was trivial and not of a lasting nature and the injury was more akin to an underlying cervical spondylosis and normal degeneration of the spine.
He further advised the Tribunal it was very hard to opine anything definitive as there were no x-rays or MRI performed in 2004 when the initial injury occurred. He advised that when an MRI was eventually undertaken it revealed further deterioration; that was age-related and not attributable to the injury, but that he would have no idea if that degeneration was present at the time of injury. His examination was consistent with what was presented to the physiotherapist: that an underlying issue could have been aggravated by the injury which led to the subsequent pain that Ms Hewett has experienced.
Associate Professor George Mendelson, Consultant Psychiatrist
In his medicolegal report of 20 September 2016 Associate Professor Mendelson opined:
The information available to me at the present time in relation to Mrs Hewett’s psychiatric condition is that she has experienced depressive and anxiety symptoms since the early 1990s, and according to the history she gave to Dr Glowinski she has experienced regular “hyperenergised” states followed by periods during which she has felt depressed.
…
It would appear that at times there has been co-morbid episodes of more marked depressive symptoms or of anxiety, but when any such specific episode had resolved - as at the time when I examined Mrs Hewett on 20 July 2016 - the residual emotional symptoms have been those of the underlying Persistent mood disorder than in my opinion can be most appropriate described as Cyclothymia. [Cyclothymia (ICD Code F34.0) using the terminology of the ICD-10 classification of mental and behavioural disorders]
…
It is also my opinion that this persistent psychiatric disorder, i.e. Cyclothymia is not, and has not been, work-related, albeit in my view it has predisposed Mrs Hewett to react more intensely than would a person of “normal mental fortitude” to environmental stressors, including events at work. At the same time, however, I considered that any specific emotional reaction to an event such as the incident on 10 February 2004 would not have lasted for longer than several weeks at most, and that Mrs Hewett’s current emotional symptoms are due to the underlying disorder of Cyclothymia and are not in any way attributable to that incident that occurred in February 2004, more than 12 ½ years ago.
Associate Professor Mendelson advised the Tribunal that cyclothymia was the most appropriate diagnosis of Ms Hewett’s condition and that he relied upon the Australian preferred version of the world health classification of mental and behavioural disorders and not the American DSM. He identified that Ms Hewett had an underlying disorder and therefore her response to the situation in 2004 was more defined than an individual who is not predisposed to this psychological condition. He did not agree with the finding of adjustment disorder, as Ms Hewett had presentations of psychological issues as far back as 1999, and that her reaction indicated an underlying basis for her psychological issues. Further, he disagreed the treatment would not necessarily make the situation worse, and queried the very high doses of medication that she was currently receiving. He said this is indicative of something else present other than an adjustment disorder with mixed anxiety and depression.
CONSIDERATION
Counsel for Ms Hewett argued that Ms Hewett’s condition could not be faked as muscle spasm presented on palpitation and this was consistent with the observation of Ms Howe who had been treating Ms Hewett for an extensive period of time. He argued the incident in 2004 had resulted in the neck injury and accepted that Ms Hewett may have been suffering from underlying degenerative changes, but the injury was the catalyst for her prolapsed disc and subsequent pain. Indeed, counsel argued Ms Hewett’s condition became chronic which led to the subsequent need for the spinal fusion which has led to an agreed 28% whole body impairment. Therefore, Comcare has a continuing liability for medical expenses and payment for permanent impairment.
Counsel for Ms Hewett contended that as Mr Brownbill had assessed Ms Hewett as having sustained an aggravation of a pre-existing asymptomatic cervical spine degenerative changes with likely C3-4 intervertebral disc degeneration, that surgery was required as a result, and as there had been no previous neck pain prior to the onset of pain during the incident at 2004 that this was the cause of the impairment which he assessed at 28%. Counsel submitted that this should be accepted by the Tribunal. He contended that whilst Ms Hewett had responded to surgery, she will continue to need physical therapy and therefore it was appropriate for Comcare to continue to meet reasonable medical expenses.
Counsel for Ms Hewett further contended that one cannot predict when and where underlying degeneration may result in an abnormality of the spine, but that injury will most certainly trigger and add to the weight of degeneration. Further, whilst surgery ultimately dealt with the issue there was a significant chain of events which led to Ms Hewett’s pain which had no other causal factor or intervening causation. In relation to Ms Hewett playing tennis, Counsel submitted that whilst tennis had been discussed at length it had not been demonstrated that Ms Hewett’s playing tennis was vigorous or strenuous enough to cause the injury which ultimately resulted in surgery, but the Tribunal must accept that the causation of her pain was due to her work.

Counsel for Ms Hewett accepted that Ms Hewett had an underlying psychological vulnerability but there could be no dispute that the incident in 2004 had exacerbated this condition and therefore, Comcare was liable for ongoing medication and treatment expenses. Whilst no one had argued that Ms Hewett was suffering from post-traumatic stress disorder, there had been a diagnosis of traumatisation which was ongoing and would be into the future.
Counsel for the respondent argued that the injury to the neck in 2004 could not lead to the need for fusion, as it was not a traumatic incident and that in 2006, Mr Kelman had already diagnosed that the neck complaint had ceased and there was no longer any need for ongoing treatment. Therefore the injury and the claimed but not accepted fusion could not result in permanent impairment and, Comcare was not liable to pay in accordance with ss 24 or 27 of the SRC Act.
Counsel for Ms Hewett drew the Tribunal’s attention to the case of Kennedy Cleaning v Petkoska [2000] HCA 45; 200 CLR 286; 174 ALR 626;74 ALJR 1298 where Chief Justice Gleeson and Justice Kirby made reference to “a sudden change or disturbance to the psychological state” of the employee. Simply put, counsel submitted the aggravation of the underlying conditions of both Ms Hewett’s cervical spine and psychological condition had been disturbed by her employment to such an extent that both conditions became chronic and led to a need for continuing medical intervention, for which Comcare continues to be liable.
Counsel for the respondent further contended that the incident in 2004 could not have produced Ms Hewitt’s disc protrusion. Counsel submitted that plainly, the incident did not produce the disc protrusion, and as no x-ray or MRI scan had been taken until some eight or nine years after the incident in 2004 and that there was no indication that the injury had led to the need for spinal fusion. Counsel argued that this was also consistent with no reporting of pain observed by the Stress Contact Officer in 2004 at the time of the original incident.
Counsel for the respondent accepted that Ms Hewett’s spinal fusion had resulted in a permanent impairment of 28% but the incident of 2004 did not cause that whole person impairment percentage, as the neck strain from moving back in a chair was not sufficient to cause such damage. Counsel submitted this was confirmed in Mr Kelman’s report of 2006 in which he opined that Ms Hewett presented with no underlying congenital or degenerative condition. In fact in Mr Kelman’s opinion the condition which contributed to Ms Hewett’s neck complaint had now ceased in 2006, however the stress situation continues.
Counsel for the respondent argued that Ms Powell, Ms Hewett’s treating psychologist at the time, had also noted that her condition looked like Cyclothymia which backed up the findings of Associate Professor Mendelson. Therefore Ms Hewett presents with an underlying psychological condition which would have been aggravated by the incident in 2004, but that incident was not sufficient to cause the onset of moderate severity chronic adjustment disorder with mixed anxiety and depressive symptoms. Ms Hewett admitted to a cyclical history of mood swings where she experienced extreme highs and extreme lows. Therefore, counsel submitted there was no ongoing liability in respect of medical treatment for Ms Hewett psychological disorder.
Counsel for Ms Hewett contended that whilst there may have been underlying degenerative changes in the neck and underlying psychological issues, the incident of 2004 disturbed both of these. Further, this produced causation, and therefore, as it was work-related, Comcare was liable for ongoing medical expenses and for permanent impairment payments to Ms Hewett, as both parties had accepted 28% impairment was attributable to her spinal fusion. Counsel referred to the case of Ilsley v Wattyl (1997) 75 FCR 1, 144 ALR 510 were the Full Federal Court said (at 6):
Secondly, as is well recognised, the sustaining injury and the onset of incapacity resulting from that injury need not, and commonly does not, occur simultaneously…
FINDINGS
The Tribunal found that Ms Hewett was suffering from both a neck condition which resulted in pain and also a psychological condition. The Tribunal accepted that these conditions were as a result of her employment at Centrelink, however, the progression of these conditions is not now attributable to her previous employment.
The Tribunal did find that Ms Hewett is suffering ongoing pain, identified as neck sprain, but that it could not now be attributed to her compensable condition or as a result of her spinal fusion surgery. The Tribunal based its determination on the view of Mr Ronal Haig, consultant orthopaedic surgeon, in his report of 2015, who considered that Ms Hewett’s employment no longer contributed to her condition and that her underlying disc degeneration was the root cause of her pain and not the incident in 2004. This contention was supported by the report of Dr Iain Kelman, consultant orthopaedic surgeon, who reviewed Ms Hewett in 2006 and found that her employment does not continue to affect her cervical spine and her condition has resolved. The Tribunal was perplexed as to why Comcare had not acted on this finding earlier.
Further, the Tribunal found that Ms Hewett continues to suffer from a psychological condition which the Tribunal accepts as a major depressive disorder, but this too could no longer be attributed to her compensable condition. The Tribunal based its determination on the information provided by Ms Hewett’s treating psychologist Dr Power to the Comcare consultant psychologist that Ms Hewett had had a lot of treatment over a long period of time and that it was time to wean Ms Hewett from the treatment to become ready for discharge. Dr Power also noted that Ms Hewett was not utilising her sessions to learn skills of self-management but was using them to vent about her current life stressors.
The Tribunal found that Ms Hewett’s claim for ongoing medical expenses under section 16 of the SRC Act in respect to physiotherapy, chiropractic, massage, pharmaceuticals, psychiatrist, psychologist and travel costs were not reasonable ongoing treatments. There was no clear evidence that these treatments were benefiting her long-term pain management. Treatment for her psychological condition is now required in respect of Ms Hewett’s underlying psychological condition, but not in respect of the incident in 2004 as evidenced by her treating psychologist and psychiatrist who both note most sessions now deal with her general life stresses.
The Tribunal found that as Ms Hewett’s compensable condition was no longer contributing to her current pain and that the impairment of the cervical spine following surgery by way of cervical arthrodesis at C3/4 (fusion procedure) was not required as a result of accepted compensable injury. There is therefore no liability under ss 24 and 27 of the SRC Act.
The Tribunal observed that Comcare’s clinical framework for assessing reasonable medical treatment had not been followed. The framework establishes key measures of treatment effectiveness which are the ability of the injured person to manage their condition as independently as possible and to participate in activities at home, in the community and at work. Independence does not mean being symptom-free, but rather living a functional and productive life while self-managing symptoms if they arise. Failure to empower an injured person to become independent may result in dependency on treatment, which reinforces illness behaviour and can lead to persistent pain or long-term disability.
CONCLUSION
Based on the evidence before it, the Tribunal affirms all decisions under review. In relation to the determination of 6 January 2016, the Tribunal affirms the decision that Ms Hewett was no longer entitled to compensation pursuant to s 16 of the SRC Act as she no longer suffered from the effects of the accepted injury and consequently is not entitled to payment for permanent impairment.
The decisions under review are affirmed.

I certify that the preceding 60 (sixty) paragraphs are a true copy of the reasons for the decision herein of:

[sgd].......................................................................
Dated: 4 January 2018

Dates of hearing: 18 – 21 September 2017

Counsel for the Applicant: Mr Mark Carey

Solicitors for the Applicant: Ms Sarah Breen, Patrick Robinson & Co

Counsel for the Respondent: Mr John Wallace

Solicitors for the Respondent: Joshua Lessing, Spake Helmore

[2018] AATA 302

4 January 2018

Key Legal Topics

Areas of Law

Employment Law

Administrative Law

Legal Concepts

Causation

Remedies

Statutory Construction

Judicial Review

Procedural Fairness

Dates of hearing:	18 – 21 September 2017
Counsel for the Applicant:	Mr Mark Carey
Solicitors for the Applicant:	Ms Sarah Breen, Patrick Robinson & Co
Counsel for the Respondent:	Mr John Wallace
Solicitors for the Respondent:	Joshua Lessing, Spake Helmore