Hogan and Comcare (Compensation)
[2021] AATA 1870
•7 May 2021
Hogan and Comcare (Compensation) [2021] AATA 1870 (7 May 2021)
Division:GENERAL DIVISION
File Numbers: 2017/1172, 2017/1249-50, 2017/2261 & 2017/2263-5
Re:Louise Hogan
APPLICANT
AndComcare
RESPONDENT
Decision
Tribunal:The Hon. Matthew Groom, Senior Member
Date:7 May 2021
Place:Melbourne
The decisions under review are affirmed.
.......................[SGD].................................................
The Hon. Matthew Groom, Senior Member
Catchwords
COMPENSATION – entitlement to compensation – review of determinations that applicant was not entitled to compensation for conditions under sections 16, 19 ad 29 of the Safety, Rehabilitation and Compensation Act 1988 – whether applicant continuing to suffer from conditions - whether reasonable medical treatment required – whether incapacitated for work – whether household and attendant care services required – decisions under review affirmed
COMPENSATION - permanent impairment – review of determinations that applicant was not entitled to compensation for conditions under sections 24 and 27 of the Safety, Rehabilitation and Compensation Act 1988 – whether aggravation of conditions contributed to by Commonwealth – whether a permeant impairment rating of 10% or more should be applied – whether entitled to non-economic loss - decisions under review affirmed
COMPENSATION – psychological conditions – review of determination that applicant was not entitled to compensation under section 14 of the Safety, Rehabilitation and Compensation Act 1988 – whether applicant suffered psychological ailment – whether contributed to by Commonwealth – whether ailment resulted in an incapacity to work - decision under review affirmed
COMPENSATION – psychological treatment – review of determinations that applicant was not entitled to compensation under section 16 of the Safety, Rehabilitation and Compensation Act 1988 – whether treatment claimed by applicant was reasonable treatment - decisions under review affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Cases
ACT Department of Health and Nikolovski and Comcare, Re (1996) 42 ALD 599
Australian Postal Commission v Burgazoff (1989) 10 AAR 296
Commonwealth v Borg [1991] FCA 710 20 AAR 299
Evans v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] FCAFC 81
Mcdonald v Director-General of Social Security [1984] FCA 59
Minister for Immigration and Ethnic Affairs v Pochi [1980] FCA 85
Twyman and Commonwealth, Re (1987) 13 ALD 402
Ward v Western Australia [1996] FCA 1452
Secondary Materials
Guide to the Assessment of the Degree of Permanent Impairment
International Classification of Diseases and Injuries (ICD – 9 – CM 2nd Edition)
REASONS FOR DECISION
The Hon. Matthew Groom, Senior Member
7 May 2021
Introduction
The applicant seeks review in respect of multiple matters, relating to a series of conditions, which the applicant claims to have suffered while employed by the Department of Human Services (“DHS”).
Compensation entitlement claims
In matter 2017/2261, the applicant seeks review of a decision of a delegated review officer for the respondent made on 24 March 2017, which affirmed a determination dated 30 January 2017. It was decided that as at and from 30 January 2017 the applicant was not entitled to compensation under sections 16, 19 and 29 of the Safety, Rehabilitation and Compensation Act 1988 (the “SRC Act”) in respect of “aggravation of lateral epicondylitis (right) and aggravation of chronic pain syndrome (right) (arm and shoulder only)”.
In matter 2017/2263 the applicant seeks review of a decision of a delegated review officer of the respondent made on 24 March 2017, which affirmed a determination dated 30 January 2017 that as at and from 30 January 2017 the applicant was not entitled to compensation under sections 16 and 19 of the SRC Act in respect of “aggravation of adhesive capsulitis of shoulder (right)”.
Permanent impairment claims
In matter 2017/1249, the applicant seeks review of the decision of a delegated review officer of the respondent, made on 1 February 2017 which affirmed a determination dated 4 November 2016, that the applicant was not entitled to compensation under sections 24 and 27 of the SRC Act in respect of “aggravation of lateral epicondylitis (right) and aggravation of chronic pain syndrome”.
In matter 2017/1250, the applicant seeks review of the decision of a delegated review officer of the respondent made on 1 February 2017 which in turn affirmed a determination dated 4 November 2016 that the applicant was not entitled to compensation under sections 24 and 27 of the SRC Act in respect of “aggravation of adhesive capsulitis of shoulder (right)”.
Psychological injury claim
In matter 2017/1172, the applicant seeks review of a decision of a delegated review officer of the respondent made on 7 February 2017, which affirmed a determination dated 20 December 2016, that the applicant was not entitled to compensation under section 14 of the SRC Act in respect of “adjustment disorder with depressed and anxious mood”.
Psychology treatment claims
In matter 2017/2264, the applicant seeks review of a decision of a delegated review officer of the respondent made on 27 March 2017, which affirmed a determination dated 1 February 2017, that as at and from April 2016 the applicant was not entitled to compensation under section 16 of the SRC Act for psychology treatment in respect of “aggravation of lateral epicondylitis (right)” and “aggravation of chronic pain syndrome (right) (arm and shoulder only)”.
In matter 2017/2265, the applicant seeks review of a decision of a delegated review officer of the respondent made on 27 March 2017, which affirmed a determination dated 1 February 2017 that as at and from April 2016 the applicant was not entitled to compensation under section 16 of the SRC Act for psychology treatment in respect of “aggravation of adhesive capsulitis of shoulder (right)”.
Background information
The applicant was employed as a customer service officer with DHS. The applicant commenced her employment with DHS in around April 2001. The applicant’s role included face-to-face customer service delivery, including interviews and computer-based recording of interview outcomes.
The applicant had commenced a role with DHS after having previously operated her own retail clothing store for approximately seven years, and before that having worked at the RACV in customer service selling insurance policies for approximately seven years.
In 2005 the applicant made a claim for the condition of bilateral carpal tunnel syndrome. The symptoms were described as including pain along the back of the applicant’s hand, into her forearm extending as far as the right shoulder and accompanied by some numbness in the hands whenever she used them continuously through the use of a computer mouse or when undertaking non-work-related activities, such as vacuuming or holding the handlebars of a bicycle.[1]
[1] T5a, p 50.
Between 2007 and 2011 the applicant took extended maternity leave in connection with the birth of her two children.
Liability in respect of the bilateral carpal tunnel syndrome condition was ultimately accepted by the respondent, and the applicant undertook bilateral decompression surgery on her right wrist in 2010 and on her left wrist in 2011.
The applicant returned to work in May 2011, in the form of a graduated return to work program. Despite her graduated return to work program, the applicant continued to report ongoing symptoms in respect of her thumb, right shoulder, elbow and hand.
On 17 October 2013, the applicant made a further claim for compensation in respect of a number of additional conditions including tenosynovitis of the hand and wrist, right forearm pain, right extensor tendinitis, tennis elbow, chronic pain and neck and shoulder pain. The applicant claimed that the conditions emerged as a consequence of her employment with DHS and more specifically through the repetitive use of a computer.
On 6 March 2014, a claim was accepted for the conditions of aggravation of lateral epicondylitis (right) and aggravation of chronic pain syndrome (right) (arm and shoulder only) (respectively the “aggravation of tennis elbow” and “aggravation of chronic pain syndrome” conditions). The other additional claims were rejected. The date of injury for the additional accepted conditions was determined to be 30 August 2011.
Following acceptance of the aggravation of tennis elbow and chronic pain syndrome conditions, the applicant was able to access benefits and costs recovery in respect of physiotherapy, osteopath treatment, imaging, general practitioner consultations, household assistance and incapacity benefits.
On 25 April 2014, the applicant made a further claim for compensation in respect of subacromial bursitis with impingement affecting her right shoulder, right side of the neck and right arm. The applicant claimed that the condition had been caused by repetitive use and stretching while standing to use her right arm to assist customers.[2]
[2] T6a, p 67.
On 8 August 2014, a delegate of the respondent determined that while the applicant suffered from a frozen shoulder condition in respect of the applicant’s right shoulder, they were not satisfied that the condition was contributed to, to a significant degree, by the applicant’s employment with DHS and as such the applicant was not entitled to compensation in respect of the condition under section 14 of the SRC Act.[3] The determination was affirmed on review on 23 October 2014.[4]
[3] T9a, p 76.
[4] T11a, p 86.
The applicant subsequently sought a review of that decision by the Administrative Appeals Tribunal (“AAT”). On 17 February 2015, the AAT made a consent decision after terms of agreement had been reached between the parties to the effect that the applicant had suffered an injury being aggravation of adhesive capsulitis of shoulder (right) with an effective date of injury of 17 April 2014, and that the respondent was liable to pay compensation in accordance with section 14 of the SRC Act (the “aggravation of frozen shoulder condition”) .[5]
[5] T13a, p 104.
The respondent classified the accepted aggravation of frozen shoulder condition in accordance with the International Classification of Diseases and Injuries (ICD – 9 – CM 2nd Edition).[6]
[6] T15a, p 109.
The applicant ceased employment with DHS on 23 October 2015.[7]
[7] The applicant’s pre-hearing statement.
On 30 March 2016, the applicant sought compensation for household services in respect of her aggravation of frozen shoulder condition. That claim was accepted on 20 July 2016.[8]
[8] ST4.1, p 28.
On 22 May 2016, the applicant applied for permanent impairment compensation in respect of the aggravation of tennis elbow and chronic pain syndrome conditions.[9] On 24 May 2016, the applicant made a further claim for permanent impairment compensation in respect of the aggravation of frozen shoulder condition.[10]
[9] T17a, p 130.
[10] T18a, p 144.
On 6 July 2016, the applicant made a further application seeking compensation for a claimed psychological condition of pain, stress and depression as a secondary condition to the aggravation of frozen shoulder condition.[11]
[11] ST3.1, p 20.
Relevant law
Statutory provisions
14 Compensation for injuries
(1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
(2) Compensation is not payable in respect of an injury that is intentionally self‑inflicted.
(3) Compensation is not payable in respect of an injury that is caused by the serious and wilful misconduct of the employee but is not intentionally self‑inflicted, unless the injury results in death, or serious and permanent impairment.
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.
Note: Compensation is not payable under this subsection in relation to certain claims (see section 119A).
(2) Subsection (1) applies whether or not the injury results in death, incapacity for work, or impairment.
(3) For the purposes of subsection (1), the cost of medical treatment shall, in a case where the treatment involves the supply, replacement or repair of property used by the employee, be deemed to include any fees or charges paid or payable by the employee to a legally qualified medical practitioner or dentist or other qualified person for a consultation, examination, prescription or other service reasonably required in connection with that supply, replacement or repair.
(4) An amount of compensation payable by Comcare under subsection (1) is payable:
(a) if the employee has paid the cost of the medical treatment—to, or in accordance with the directions of, the employee; or
(b) if the employee dies before the compensation is paid and without having paid the cost referred to in subsection (1) and another person, not being the legal personal representative of the employee, has paid that cost—to that other person; or
(c) in any other case—to the person to whom the cost is payable.
(5) Where a person is liable to pay any cost referred to in subsection (1), any amount paid under subsection (4) to the person to whom that cost is payable is, to the extent of the payment, a discharge of the liability of the first‑mentioned person.
(6) Subject to subsection (7), if:
(a) compensation in respect of the cost of medical treatment is payable; and
(b) the employee reasonably incurs expenditure in doing either or both of the following:
(i) making a necessary journey for the purpose of obtaining that medical treatment;
(ii) remaining, for the purpose of obtaining that medical treatment, at a place to which the employee has made a journey for that purpose;
Comcare is liable to pay compensation to the employee:
(c) in respect of the journey—of an amount worked out using the formula:
where:
specified rate per kilometre means such rate per kilometre as the Minister specifies, by legislative instrument, under this subsection in respect of journeys to which this subsection applies.
numbers of kilometres travelled means the number of whole kilometres Comcare determines to have been the reasonable length of such a journey as it was necessary for the employee to make (including the return part of the journey).
(d) in respect of the employee remaining for the purpose of obtaining the treatment—of an amount equal to the expenditure so reasonably incurred in remaining for that purpose.
(7) Comcare is not liable to pay compensation under subsection (6) unless:
(a) the reasonable length of such a journey as it was necessary for the employee to make (including the return part of the journey) exceeded 50 kilometres; or
(b) if the journey made by the employee involved the use of public transport or ambulance services—the employee’s injury reasonably required the use of such transport or services regardless of the distance involved.
(8) The matters to which Comcare shall have regard in deciding questions arising under subsections (6) and (7) include:
(a) the place or places where appropriate medical treatment was available to the employee;
(b) the means of transport available to the employee for the journey;
(c) the route or routes by which the employee could have travelled; and
(d) the accommodation available to the employee.
(9) Where:
(a) an employee suffers an injury;
(b) a person has reasonably incurred expenditure in connection with the transportation of the employee, or, if the employee has died, of his or her body, from the place where the injury was sustained to a hospital or similar place, or to a mortuary; and
(c) the employee, or the legal personal representative of the employee, does not make a claim for compensation in respect of that expenditure;
Comcare is liable to pay compensation to the person who incurred the expenditure of an amount equal to the amount of that expenditure.
19 Compensation for injuries resulting in incapacity
(1) This section applies to an employee who is incapacitated for work as a result of an injury, other than an employee to whom section 20, 21, 21A or 22 applies.
(2) Subject to this Part, Comcare is liable to pay to the employee in respect of the injury, for each week that is a maximum rate compensation week during which the employee is incapacitated, an amount of compensation worked out using the formula:
where:
AE is the greater of the following amounts:
(a) the amount per week (if any) that the employee is able to earn in suitable employment;
(b) the amount per week (if any) that the employee earns from any employment (including self‑employment) that is undertaken by the employee during that week.
NWE is the amount of the employee’s normal weekly earnings.
(2A) For the purposes of subsection (2), a week is a maximum rate compensation week, in relation to an employee to whom this section applies, if:
(a) it is a week during which the employee’s incapacity prevents the employee working the employee’s normal weekly hours because the employee is unable to work or unable to work at the level at which the employee worked before the injury; and
(b) the total number of hours that the employee has been prevented from working, or working at that level, during that incapacity, in that week and in all previous weeks, if any, to which paragraph (a) applies, does not exceed 45 times the employee’s normal weekly hours.
(2B) If, before the end of a particular week, the total of the hours that the employee has been prevented from working, or working at that level, in that week and in previous weeks, will exceed the total number of hours worked out in accordance with paragraph (2A)(b), then:
(a) subsection (2) applies in respect of the part of the week before that total number of hours is exceeded in accordance with subsection (2C); and
(b) subsection (3) applies in respect of the remainder of the week in accordance with subsection (2D).
(2C) For the purposes of paragraph (2B)(a), the compensation payable in respect of the part of the week to which that paragraph refers is an amount worked out using the formula:
where:
AE applies in relation to the whole of that particular week and has the same meaning as in subsection (2).
NWE is the amount of the employee’s normal weekly earnings.
NWH means the number of normal weekly hours worked by the employee before his or her injury.
X is the total of the hours in that particular week:
(a) that would have counted towards the employee’s normal weekly hours (whether those hours are worked or not); and
(b) that elapse before the total number of hours worked out in accordance with paragraph (2A)(b) exceeds 45 times the employee’s normal weekly hours.
(2D) For the purposes of paragraph (2B)(b), the compensation payable in respect of the part of the week to which that paragraph refers is worked out using the formula:
where:
NWH means the number of normal weekly hours worked by the employee before his or her incapacity.
reduced rate compensation entitlement is the rate of compensation that would have been applicable for the whole week had subsection (3) applied throughout the whole week.
X is the total of the hours in that particular week:
(a) that would have counted towards the employee’s normal weekly hours (whether those hours are worked or not); and
(b) that elapse before the total number of hours worked out in accordance with paragraph (2A)(b) exceeds 45 times the employee’s normal weekly hours.
(3) Subject to this Part, Comcare is liable to pay compensation to the employee, in respect of the injury, for each week during which the employee is incapacitated, other than a week referred to in subsection (2), of an amount calculated using the formula:
where:
adjustment percentage is a percentage equal to:
(a) if the employee is not employed during that week—75%; or
(b) if the employee is employed for 25% or less of his or her normal weekly hours during that week—80%; or
(c) if the employee is employed for more than 25% but not more than 50% of his or her normal weekly hours during that week—85%; or
(d) if the employee is employed for more than 50% but not more than 75% of his or her normal weekly hours during that week—90%; or
(e) if the employee is employed for more than 75% but less than 100% of his or her normal weekly hours during that week—95%; or
(f) if the employee is employed for 100% of his or her normal weekly hours during that week—100%.
AE applies in relation to the whole of that particular week and has the same meaning as in subsection (2).
NWE is the amount of the employee’s normal weekly earnings.
(3A) If, as a result of the incapacity:
(a) the amount per week payable to the employee in respect of his or her continued employment is reduced; and
(b) a pension under a superannuation scheme is payable to the employee;
subsection (3) applies in relation to the employee in relation to a week during which the employee is incapacitated as if the references in the subsection to the amount he or she was able to earn during the week in suitable employment were instead references to the sum of that amount and any amount of the pension referred to in paragraph (b) that is payable to the employee in respect of that week.
(4) In determining, for the purposes of subsections (2) and (3), the amount per week that an employee is able to earn in suitable employment, Comcare shall have regard to:
(a) where the employee is in employment (including self‑employment)—the amount per week that the employee is earning in that employment;
(b) where, after becoming incapacitated for work, the employee received an offer of suitable employment and failed to accept that offer—the amount per week that the employee would be earning in that employment if he or she were engaged in that employment;
(c) where, after becoming incapacitated for work, the employee received an offer of suitable employment and, having accepted that offer, failed to engage, or to continue to engage, in that employment—the amount per week that the employee would be earning in that employment if he or she were engaged in that employment;
(d) where, after becoming incapacitated for work, the employee received an offer of suitable employment on condition that the employee completed a reasonable rehabilitation or vocational retraining program and the employee failed to fulfil that condition—the amount that the employee would be earning in that employment if he or she were engaged in that employment;
(e) where, after becoming incapacitated for work, the employee has failed to seek suitable employment—the amount per week that, having regard to the state of the labour‑market at the relevant time, the employee could reasonably be expected to earn in such employment if he or she were engaged in such employment;
(f) where paragraph (b), (c), (d) or (e) applies to the employee—whether the employee’s failure to accept an offer of employment, to engage, or to continue to engage, in employment, to undertake, or to complete, a rehabilitation or vocational retraining program or to seek employment, as the case may be, was, in Comcare’s opinion, reasonable in all the circumstances; and
(g) any other matter that Comcare considers relevant.
(5) Where an amount of compensation calculated under subsection (3) exceeds 150% of the amount called the Average Weekly Ordinary Time Earnings of Full‑time Adults, as published from time to time by the Australian Statistician, the amount so calculated shall be reduced by an amount equal to the excess.
(6) Where an amount of compensation calculated under paragraph (3)(a) is less than the minimum earnings, the amount so calculated shall be increased by an amount equal to the difference between that amount and the minimum earnings.
(7) For the purposes of subsection (6), the minimum earnings of an employee shall be taken to be:
(a) $202, or, if subsection (8) or (9) applies in relation to the employee, the sum of $202 and the amount or amounts required to be added under whichever of those subsections applies; or
(b) an amount equal to 90% of the employee’s normal weekly earnings;
whichever is less.
(8) If there are prescribed persons wholly or mainly dependent on the employee, there shall be added to the amount of $202 specified in paragraph (7)(a) the amount of $50.
(9) If there are prescribed children in relation to whom this Act applies (whether born before, on or after the date of the injury) wholly or mainly dependent on the employee, there shall be added to the amount of $202 specified in paragraph (7)(a) the amount of $25 for each of those children, but an amount shall not be so added for a child in relation to any period before the date of birth of that child.
(10) If a prescribed child is:
(a) a prescribed person in relation to the employee; and
(b) the only prescribed person who is wholly or mainly dependent on the employee;
subsection (9) does not apply in relation to that child.
(11) If 2 or more prescribed children are each:
(a) a prescribed person in relation to the employee; and
(b) wholly or mainly dependent on the employee;
subsection (8) applies in relation to one of those children and subsection (9) applies in relation to the remainder of those children.
(12) In this section, prescribed person, in relation to an employee, means:
(a) the spouse of the employee; or
(b) any of the following persons, being a person who is 16 or more:
(i) the parent, step‑parent, father‑in‑law, mother‑in‑law, grandparent, child, stepchild, grandchild, sibling or half‑sibling of the employee;
(ii) a person in relation to whom the employee stands in the position of a parent or who stands in the position of a parent to the employee;
(iii) a person (other than the spouse of the employee or a person referred to in subparagraph (i) or (ii)) who is wholly or mainly maintained by the employee and has the care of a prescribed child, being a child who is wholly or mainly dependent on the employee.
Note: In relation to subparagraph (12)(b)(i), see also subsection 4(2).
(14) For the purposes of the definition of prescribed person in subsection (12), a person who has the care of a child referred to in subparagraph (12)(b)(iii) shall not be taken not to be wholly or mainly maintained by an employee merely because the employee pays remuneration to the person for caring for that child.
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:
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.
28 Approved Guide
(1) Comcare may, from time to time, prepare a written document, to be called the “Guide to the Assessment of the Degree of Permanent Impairment”, setting out:
(a) criteria by reference to which the degree of the permanent impairment of an employee resulting from an injury shall be determined;
(b) criteria by reference to which the degree of non‑economic loss suffered by an employee as a result of an injury or impairment shall be determined; and
(c) methods by which the degree of permanent impairment and the degree of non‑economic loss, as determined under those criteria, shall be expressed as a percentage.
(2) Comcare may, from time to time, by instrument in writing, vary or revoke the approved Guide.
(3) A Guide prepared under subsection (1), and a variation or revocation under subsection (2) of such a Guide, must be approved by the Minister.
(3A) A Guide prepared under subsection (1), and a variation or revocation under subsection (2) of such a Guide, is a legislative instrument made by the Minister on the day on which the Guide, or variation or revocation, is approved by the Minister.
(4) Where Comcare, a licensee or the Administrative Appeals Tribunal is required to assess or re‑assess, or review the assessment or re‑assessment of, the degree of permanent impairment of an employee resulting from an injury, or the degree of non‑economic loss suffered by an employee, the provisions of the approved Guide are binding on Comcare, the licensee or the Administrative Appeals Tribunal, as the case may be, in the carrying out of that assessment, re‑assessment or review, and the assessment, re‑assessment or review shall be made under the relevant provisions of the approved Guide.
(5) The percentage of permanent impairment or non‑economic loss suffered by an employee as a result of an injury ascertained under the methods referred to in paragraph (1)(c) may be 0%.
(6) In preparing criteria for the purposes of paragraphs (1)(a) and (b), or in varying those criteria, Comcare shall have regard to medical opinion concerning the nature and effect (including possible effect) of the injury and the extent (if any) to which impairment resulting from the injury, or non‑economic loss resulting from the injury or impairment, may reasonably be capable of being reduced or removed.
(8) Comcare shall make copies of the “Guide to the Assessment of the Degree of Permanent Impairment” that has been approved by the Minister, and of any variation of that Guide that has been so approved, available upon application by a person and payment of the prescribed fee (if any).
29 Compensation for household services and attendant care services obtained as a result of a non‑catastrophic injury
(1) Subject to subsection (5), where, as a result of an injury (other than a catastrophic injury) to an employee, the employee obtains household services that he or she reasonably requires, Comcare is liable to pay compensation of such amount per week as Comcare considers reasonable in the circumstances, being not less than 50% of the amount per week paid or payable by the employee for those services nor more than $200.
(2) Without limiting the matters that Comcare may take into account in determining the household services that are reasonably required in a particular case, Comcare shall, in making such a determination, have regard to the following matters:
(a) the extent to which household services were provided by the employee before the date of the injury and the extent to which he or she is able to provide those services after that date;
(b) the number of persons living with the employee as members of his or her household, their ages and their need for household services;
(c) the extent to which household services were provided by the persons referred to in paragraph (b) before the injury;
(d) the extent to which the persons referred to in paragraph (b), or any other members of the employee’s family, might reasonably be expected to provide household services for themselves and for the employee after the injury;
(e) the need to avoid substantial disruption to the employment or other activities of the persons referred to in paragraph (b).
Note: In relation to paragraph (2)(d), see also subsection 4(2).
(3) Where, as a result of an injury (other than a catastrophic injury) to an employee, the employee obtains attendant care services that he or she reasonably requires, Comcare is liable to pay compensation of:
(a) $200 per week; or
(b) an amount per week equal to the amount per week paid or payable by the employee for those services;
whichever is less.
(4) Without limiting the matters that Comcare may take into account in determining the attendant care services that are reasonably required in a particular case, Comcare shall, in making such a determination, have regard to the following matters:
(a) the nature of the employee’s injury and the degree to which that injury impairs his or her ability to provide for his or her personal care;
(b) the extent to which any medical service or nursing care received by the employee provides for his or her essential and regular personal care;
(c) the extent to which it is reasonable to meet any wish by the employee to live outside an institution;
(d) the extent to which attendant care services are necessary to enable the employee to undertake or continue employment;
(e) any assessment made in relation to the rehabilitation of the employee;
(f) the extent to which a relative of the employee might reasonably be expected to provide attendant care services.
Note: In relation to paragraph (4)(f), see also subsection 4(2).
(5) Comcare is not liable to pay compensation under subsection (1) in respect of any week within the period of 28 days beginning on the date of the injury unless Comcare determines otherwise in a particular case on the ground of financial hardship or the need to provide for adequate supervision of dependent children.
(6) An amount of compensation payable by Comcare under subsection (1) or (3) is payable:
(a) where the employee has paid for the household services or attendant care services, as the case may be—to the employee; or
(b) in any other case—to the person who provided those services.
(7) Where Comcare pays an amount to a person who provided household services or attendant care services to an employee, the payment of the amount is, to the extent of the payment, a discharge of the liability of the employee to pay for those services.
Statutory Definitions
4 Interpretation
ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
household services, in relation to an employee, means services of a domestic nature (including cooking, house cleaning, laundry and gardening services) that are required for the proper running and maintenance of the employee’s household.
impairment means the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function.
medical treatment means:
(a) medical or surgical treatment by, or under the supervision of, a legally qualified medical practitioner; or
(b) therapeutic treatment obtained at the direction of a legally qualified medical practitioner; or
(c) dental treatment by, or under the supervision of, a legally qualified dentist; or
(d) therapeutic treatment by, or under the supervision of, a physiotherapist, osteopath, masseur or chiropractor registered under the law of a State or Territory providing for the registration of physiotherapists, osteopaths, masseurs or chiropractors, as the case may be; or
(e) an examination, test or analysis carried out on, or in relation to, an employee at the request or direction of a legally qualified medical practitioner or dentist and the provision of a report in respect of such an examination, test or analysis; or
(f) the supply, replacement or repair of an artificial limb or other artificial substitute or of a medical, surgical or other similar aid or appliance; or
(g) treatment and maintenance as a patient at a hospital; or
(h) nursing care, and the provision of medicines, medical and surgical supplies and curative apparatus, whether in a hospital or otherwise; or
(i) any other form of treatment that is prescribed for the purposes of this definition.
non‑economic loss, in relation to an employee who has suffered an injury resulting in a permanent impairment, means loss or damage of a non‑economic kind suffered by the employee (including pain and suffering, a loss of expectation of life or a loss of the amenities or enjoyment of life) as a result of that injury or impairment and of which the employee is aware.
permanent means likely to continue indefinitely.
significant degree has the meaning given by subsection 5B(3).
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.
(2) For the purposes of subsection (1) and without limiting that subsection, reasonable administrative action is taken to include the following:
(a) a reasonable appraisal of the employee’s performance;
(b) a reasonable counselling action (whether formal or informal) taken in respect of the employee’s employment;
(c) a reasonable suspension action in respect of the employee’s employment;
(d) a reasonable disciplinary action (whether formal or informal) taken in respect of the employee’s employment;
(e) anything reasonable done in connection with an action mentioned in paragraph (a), (b), (c) or (d);
(f) anything reasonable done in connection with the employee’s failure to obtain a promotion, reclassification, transfer or benefit, or to retain a benefit, in connection with his or her employment.
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.
Approved Guide
In considering this matter the Tribunal has also had regard to the Approved Guide referred to in section 24 of the SRC Act and is defined in section 4 to mean ‘the document, prepared by Comcare in accordance with section 28 entitled “Guide to the Assessment of the Degree of Permanent Impairment”, that has been approved by the Minister and is currently in force.
Onus of proof
The Tribunal accepts the contention put by the respondent in respect of the onus of proof, namely, that in respect of a matter such as those presently before the Tribunal there is no formal onus of proof on either party but rather, the Tribunal must be reasonably satisfied in respect of any finding on the basis of the relevant and probative material before it.[12] However, it is appropriate to note, consistent with this principle, that where the issue before the Tribunal is whether an entitlement to compensation is made out, the Tribunal must be satisfied on the basis of relevant and probative material before it, that any statutory requirements that underpin such an entitlement are satisfied. In the same way, where the issue before the Tribunal is whether an existing entitlement ceases to exist the Tribunal must be satisfied on the basis of relevant and probative material before it, that the entitling qualification has ceased to exist.[13]
[12] See Minister for Immigration and Ethnic Affairs v Pochi [1980] FCA 85; McDonald v Director-General of Social Security (1984) 1 FCR 354; Ward v Western Australia [1996] FCA 1452; Evans v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] FCAFC 81; and also Re Twyman and Commonwealth (1987) 13 ALD 402.
[13] See Commonwealth v Borg (1991) 20 AAR 299; Re ACT Department of Health and Nikolovski and Comcare (1996) 42 ALD 599; and also Australian Postal Commission v Burgazoff (1989) 10 AAR 296.
Issues
The issues to be determined by the Tribunal are as follows:
Compensation entitlement claims
Whether on and from 30 January 2017 the applicant continues to suffer aggravation of the tennis elbow condition and aggravation of the chronic pain syndrome condition contributed to, to a significant degree, by her employment with the Commonwealth and if so:
(a)did the applicant require reasonable medical treatment in relation to the injury such as to be entitled to compensation under section 16 of the SRC Act?
(b)was the applicant incapacitated for work as a result of that injury, such as to be entitled to compensation under section 19 of the SRC Act?
(c)did the applicant reasonably require household and attendant care services as a result of that injury such as to be entitled to compensation under section 29 of the SRC Act?
Whether on and from 30 January 2017, the applicant continues to suffer aggravation of the frozen shoulder condition contributed to, to a significant degree, by her employment with the Commonwealth and if so:
(a)did the applicant require reasonable medical treatment in relation to the injury such as to be entitled to compensation under section 16 of the SRC Act?
(b)was the applicant incapacitated for work as a result of that injury, such as to be entitled to compensation under section 19 of the SRC Act?
Permanent impairment claims
Whether the applicant’s aggravation of the tennis elbow condition and aggravation of the chronic pain syndrome condition was contributed to, to a significant degree, by her employment with the Commonwealth and:
(a)resulted in a permanent impairment to the applicant of 10% degree or greater, such as to be entitled to compensation under section 24 of the SRC Act? and if so;
(b)what is the applicant’s entitlement to compensation for non-economic loss under section 27 of the SRC Act?
Whether the applicant’s aggravation of the frozen shoulder condition was contributed to, to a significant degree, by her employment with the Commonwealth and:
(a)resulted in a permanent impairment to the applicant of 10% degree or greater, such as to be entitled to compensation under section 24 of the SRC Act? and if so,
(b)what is the applicant’s entitlement to compensation for non-economic loss under section 27 of the SRC Act?
Psychological injury claim
Whether the applicant suffered an ailment of a psychological nature, however diagnosed, and if so:
(a)was that ailment contributed to, to a significant degree, by the applicant’s employment with the Commonwealth? and if so,
(b)did that ailment result in incapacity for work or impairment such as to give rise to an entitlement under section 14 of the SRC Act?
Psychology treatment claims
Whether on and from April 2016, the psychology treatment claimed by the applicant was reasonable treatment such as to entitle compensation under section 16 of the SRC Act in respect of the aggravation of tennis elbow condition, aggravation of chronic pain syndrome condition and/or aggravation of frozen shoulder condition?
Consideration and findings
Contentions
The applicant was unrepresented at the hearing in this matter and exercised considerable effort to set out her contentions as best she could; in a lengthy statement lodged with the Tribunal prior to the hearing, in a closing statement lodged with the Tribunal following the hearing, as well as in oral submissions through the course of the hearing itself. Without wishing to be in any way critical of the applicant’s efforts in this regard, the submissions were somewhat unstructured, and in parts referred to matters not presently before the Tribunal. The Tribunal would summarise its understanding of the applicant’s contentions as follows:
(a)The applicant contends that she continues to suffer significant ongoing pain from her previously recognised conditions of aggravation of tennis elbow, aggravation of frozen shoulder as well as aggravation of chronic pain syndrome and disputes the conclusions of Dr Burke in this respect which are relied on by the respondent. She claims to continue to experience pain in her right thumb, arm, elbow, neck and shoulder. Further, the applicant contends that these conditions were contributed to, to a significant degree, by her employment with DHS. The applicant claims that her conditions were developed as a consequence of the repetitive use of her computer and mouse and having to stretch while standing to assist customers. The applicant identifies her previous carpel tunnel syndrome injury which she claims to have first suffered at work in 2003, as the genesis of her conditions and ongoing pain. In the case of her thumb pain, she claims that it was a result of the carpel tunnel surgery undertaken in 2010 and 2011. The applicant acknowledges that some changes to her duties were made to help address her conditions as part of a return to work program. The applicant contends that the return to work program was mishandled by her employer and, if anything, exacerbated her condition. The applicant contends that in putting in place revised duties, her employer had not followed medical advice. The applicant also claims that her employer gave her duties that were beyond her capability and experience, and that she was not supported and made to feel worthless;
(b)While the applicant does not say so expressly, I have taken her submissions, when read as a whole, to mean that she adopts the conclusions of Dr Farnbach and, more specifically, that her aggravation of chronic pain syndrome condition has continued to subsist even following her resignation from DHS. The applicant claims that while there may be no physical signs of an underlying condition, that does not mean that she does not suffer from pain or that she is not limited in her physical movement. As such, the applicant contends that she is entitled to recover costs associated with her claimed ongoing conditions including reasonable medical expenses such as; prescription costs, counselling and psychological treatment, and also reasonable household services. In addition, the applicant contends that she has reduced capacity for work as a result of her claimed conditions and is entitled to compensation for that incapacity;
(c)The applicant contends that, as a consequence of her aggravation of tennis elbow, frozen shoulder and chronic pain syndrome conditions she has suffered significant permanent impairment and to a degree sufficient to make her eligible for permanent impairment compensation, including non-economic loss. Again, the applicant contends that while there may be no physical signs of her underlying conditions that does not mean that she is not suffering pain or that she is not significantly physically impaired. The applicant contends that she has suffered and continues to suffer considerable economic and non-economic loss as a consequence of her claimed impairment, including due to lost earning capacity as well as the cost of medical treatment and medication;
(d)The applicant contends that she suffers from adjustment disorder, with depressed and anxious mood as a consequence of the manner in which her accepted conditions and her return to work were handled by DHS. In addition, the applicant contends that her claimed psychological injuries were also a result of workplace harassment and bullying she suffered while employed by DHS. As such, the applicant contends that her psychological ailment was contributed to, to a significant degree by her employment with DHS and that she is entitled to compensation for the injury in accordance with the SRC Act. The applicant claims that her depression was onset by the anxiety she suffered because of her reduced work capacity and because she could not function properly at work and also as a consequence of the way she was treated by her employer and other staff members. The applicant acknowledges that she has previously suffered from post-natal depression but that pain, disrupting her sleep and anxiety associated with her work were the most significant factors contributing to the claimed condition. The applicant also acknowledges that she was previously in an abusive relationship and that separating from her husband was not easy but that it had not contributed to her depression. The applicant claims that she first experienced her mood and anxiety symptomology as a consequence of her original work related injury in 2003 but claims that her current condition is the result of factors described above;
(e)The applicant contends that the psychological treatment she has claimed is connected to a compensable condition and should be recoverable as a reasonable medical expense in accordance with the SRC Act. The applicant claims that “there was never any question regards to payment for this treatment” and that “it was only rejected when [she] was asked to lodge a separate claim for depression and anxiety”;
(f)The applicant contends that each of the decisions under review were incorrectly decided and should be set aside, and a decision made in substitution to pay her compensation consistent with each of her applications. The Tribunal notes that in her closing submissions the applicant stated that she was seeking to have the decisions under review affirmed. The Tribunal has read this as an error and that what the applicant had intended to state was that she wanted each of her original applications to be accepted; and
(g)In addition, the applicant made various claims in relation to a previous determination of the respondent relating to her thumb, that is not the subject of review before this Tribunal. The applicant also made claims that are clearly beyond the scope of what is within the jurisdiction of the Tribunal, for example, the applicant has made a claim for a number of specific heads of compensation that are not consistent with how the compensation provisions in the SRC Act operate. The applicant has also sought a formal apology from DHS in respect of her treatment during and leading up to the conclusion of her employment with them.
The respondent’s contentions may be summarised as follows:
(a)The respondent contends that the applicant no longer has physical dysfunction as a consequence of her former accepted conditions and has not had any such dysfunction at any time since liability for her claims was ceased. The respondent acknowledges the applicant’s previous carpal tunnel condition but claims the condition was surgically treated with complete success.
(b)The respondent contends that the applicant’s claims of persistent and ongoing pain are a consequence of psychological factors not related to the applicant’s previous work. The respondent contends that the applicant had suffered from anxiety and depression prior to even her first accepted compensable injury, and that those conditions are not caused by nor aggravated by her previous employment with DHS.
(c)On the basis of the above, and as set out in its closing submissions, the respondent contends that:
170. Consistent with the opinion of Dr Burke, the Applicant no longer suffers from an aggravation of lateral epicondylitis (right). It follows that:
170.1 Any medical treatment (including psychological treatment) obtained since 30 January 2017 was not obtained ‘in relation to that injury’;
170.2 Any incapacity suffered since 30 January 2017 was not suffered ‘as a result’ of that injury;
170.3 Any household services obtained since 30 January 2017 was not required ‘as a result of’ that injury; and
170.4 No permanent impairment results from the injury.
171. Consistent with the opinion of Dr Burke, the Applicant does not continue to suffer ‘aggravation of adhesive capsulitis of shoulder (right)’ such that:
171.1 Any medical treatment (including psychological treatment) obtained since 30 January 2017 was not obtained ‘in relation to that injury’;
171.2 Any incapacity suffered since 30 January 2017 was not suffered ‘as a result of’ that injury;
171.3 No permanent impairment results from that injury.
172. Consistent with the opinion of Dr Burke, the Applicant does not continue to suffer ‘aggravation of chronic pain syndrome (right) (arm and shoulder only)’ such that:
172.1 Any medical treatment (including psychological treatment) obtained since 30 January 2017 was not obtained ‘in relation to that injury’;
172.2 Any incapacity suffered since 30 January 2017 was not suffered ‘as a result of’ that injury; and
172.3 Any household services obtained since 30 January 2017 was not required ‘as a result of’ that injury.
173. The psychiatric condition before the Tribunal is a condition claimed to have arisen secondary to the physical ailments. The Tribunal only has jurisdiction to consider whether or not it was secondary to the physical ailments because that is how the claim was framed by the Applicant and dealt with by the decision-makers. It does not have jurisdiction to consider other potential workplace causes. In any event, first occurring in August 2001, the condition well predated any physical or chronic pain symptoms and so was not caused by either. Nor was it aggravated by employment.
174. As the Applicant no longer suffers, and has not suffered since 30 January 2017 at the latest, from compensable physical ailments, any contribution to a psychological condition by physical ailments relates to non-employment factors. As such, any such condition was not contributed to, to a significant degree, by employment.
175. In the alternative, should the Tribunal consider any condition to have been a result, in whole or in part, of employment factors, such employment factors had ceased to be significant contributing factor to any condition by the relevant dates upon which Comcare determined that liability had ceased.
Consistent with the above, the respondent contends that each of the decisions under review should be affirmed.
Further medical background
The applicant consulted with Dr Gerry Grokop in March 2005 in relation to what was subsequently diagnosed as a bilateral carpal tunnel syndrome condition. In his report dated 5 March 2014, Dr Grokop states that the applicant had “related that the problem had begun two years prior to this visit”. Dr Grokop went on to state that:
At the time she sought treatment privately from a physiotherapist in Werribee and felt better particularly after she changed jobs that decreased the repetitiveness of the use of her right hand.
Then in September 2004 her work moved offices and her job returned to excessive repetitive use particularly with the computer mouse.
The pain that she was now experiencing extended from the elbow into the fingers of the right hand. She stated that she was seen by the occupational therapist at a workplace to try and change the way things were done at her work but it had not helped her.[14]
[14] T5a, p 50.
On 4 January 2011, the applicant reported to Dr Grokop that she was experiencing swelling, pain and tenderness over the medial side of her metacarpal thumb joint. Dr Grokop opined that the symptoms being experienced were the result of a new injury that occurred during the carpal tunnel syndrome surgery and recommended further surgery.[15]
[15] T20.2a, p 164.
The applicant subsequently consulted with Hand and Upper limb surgeon, Mr Damien Ireland. In his report dated 21 October 2011 Mr Ireland notes as follows:
Present Work Status:
Ms Hogan works at alternative duties as a supervisor. She is not certain whether this role is permanent or temporary. It involves keyboarding for 10% of the time and instructing for 90% of the time. She works three days per week.
Present Activities:
Ms Hogan drives her motorcar without difficulty. She does the cooking and shopping. She doesn’t do vacuuming or scrubbing and states that this is done by a Comcare appointed helper who works for her for three hours per week. Ms Hogan states that she cannot chop vegetables or do mopping. The household chores are shared with her husband.
Present Treatment:
Current treatment involves self-administered Voltaren (anti-inflammatory) tablets of which she takes one to three per day. She no longer has had therapy, physiotherapy or splinting. She has no further specialist appointments.
In addition to Voltaren she takes Lipitor for hypercholesterolemia.
Past Medical History
There is no relevant past medical history apart from her being obese. She does not suffer from diabetes or thyroid conditions or any of the other conditions associated with carpal tunnel syndrome.
Personal/Social History
Ms Hogan is married and has two dependent children at home. Her husband works full-time. They own their own home.
Ms Hogan is a non-smoker and a non-drinker.
Mr Ireland stated, in response to the specific questions as follows:
1. the history of the Applicant’s right thumb condition as reported to you;
Ms Hogan was first aware of thumb symptoms following right carpal tunnel release surgery. She describes pain and swelling in the thenar region of thumb which is quite normal following carpal tunnel release. An ultrasound study was subsequently undertaken which revealed a serendipitous attenuation of the ulnar collateral ligament of the right thumb which in my opinion is quite asymptomatic.
2. your diagnosis of the Applicant’s right thumb condition;
Asymptomatic mild instability ulnar collateral ligament right thumb metacarpophalangeal joint.
3. the cause of the Applicant’s right thumb condition;
It is most likely that Ms Hogan has sustained a minor injury which she is unable to recall some years ago which has resulted in a partial tear of the ulnar collateral ligament of the right thumb which is quite unrelated to her carpal tunnel syndrome and her to work.
4. whether the Applicant’s right thumb condition:
a) was materially contributed to, or caused or aggravated by the Applicant’s employment duties at Centrelink. If so, please refer to particular factors of employment that you consider are relevant noting that the Applicant has not worked at Centrelink since October 2007;
The right thumb condition is unrelated to Ms Hogan’s work.
b) was materially attributed to, caused or aggravated by her bilateral CTS;
The right thumb condition is unrelated to bilateral carpal tunnel syndrome.
c) was a result of the endoscopic carpal tunnel release performed in June 2010;
The right thumb condition is unrelated to the treatment of right carpal tunnel syndrome.
d) is a pre-existing, congenital, constitutional or underlying condition;
The right thumb condition in my opinion has been caused by a long forgotten minor thumb injury resulting in a partial tear of the collateral ligament.
e) was caused, aggravated or accelerated by any other factors not mentioned above;
Please refer to 4 e) above.
5. Whether the symptoms of which the Applicant now complains are a common complication arising from endoscopic carpal tunnel release surgeries. If so, please identify what percentage of patients who undergo this type of surgery develop a right thumb condition as experienced by the Applicant;
As stated above the right thumb condition is unrelated to either carpal tunnel syndrome or the treatment of that condition. Ms Hogan has only been made aware of the diagnosis following an ultrasound study which she requested herself.
6. if the Applicant’s right thumb condition is a common complication of endoscopic carpal tunnel release surgery, when a patient would be expected to exhibit symptoms that condition and what the symptoms would entail;
The right thumb condition is unrelated to carpal tunnel syndrome or the treatment of it.
7. whether you agree with Mr Burger’s opinion that the type of injury that the Applicant has sustained to her right thumb is an unusual complication of endoscopic carpal tunnel release surgery, and more likely to have arisen through direct trauma to the applicant’s thumb, and the reasons for your opinion;
I agree with Mr Berger’s opinion. The thumb condition is not a complication of endoscopic carpal tunnel release surgery.
8. whether the applicant is incapacitated for employment as a result of her right thumb condition and, if so, to what extent;
In my opinion Ms Hogan is not incapacitated from her employment by virtue of her right thumb condition.
9. whether the Applicant requires any, and if so what type of, medical treatment in respect of her right thumb condition. Please also comment on the frequency and duration that the treatment is required;
The right thumb condition is asymptomatic and requires no treatment.
10. your prognosis of the applicant’s condition; and
The prognosis for the right thumb condition is good.
11. any other matters you consider relevant.
There are no other matters of relevance.[16]
[16] Annexure A to the respondent’s Statement of Facts Issues and Contentions dated 18 October 2018.
In February 2012, the applicant was referred to psychologist Ms Rebecca Kenny by Dr Grokop. In her subsequent written report Ms Kenny concluded:
Ms Hogan is a 45-year-old female referred for psychological counselling by her GP, Dr Gerry Grokop, on 08.02.12. Ms Hogan presents with symptomatology of anxiety and depression, as well as chronic pain.
Ms Hogan’s symptomatology impacts on her day-to-day functioning in that she is unable to do repetitive work/tasks, has difficulty lifting carrying heavy objects as well as difficulty holding items. Ms Hogan requires regular breaks at work and during her personal time.
Ms Hogan commenced counselling on 16.02.12 and has been very compliant and open to psychological counselling and pain management. Ms Hogan is currently very compliant with attending counselling and completing implementing CBT activities.
It is recommended that Ms Hogan continue with psychological counselling and CBT in an attempt to work through her symptoms, and to provide her with strategies and techniques to manage her situation. It is also recommended that Ms Hogan continue to work with her GP in accessing pain management and further surgery, as this may assist with managing her chronic pain.[17]
[17] T20.5a, p 170.
On 21 February 2012, the applicant was evaluated by rheumatologist Associate Professor Richard O’Brien. In his report dated 12 March 2012, Associate Professor O’Brien concluded that:
Mrs Hogan had bilateral carpal tunnel syndromes which have been attributed to her work at Centrelink. She has had successful carpal tunnel releases performed by Mr Anthony Berger. Commencing immediately after the right carpal tunnel release, she developed pain, swelling and then limitation in her use of the right thumb.
The thumb became progressively more deformed and she was diagnosed in January 2011 with a deranged ulnar collateral ligament, subsequently called a ruptured ulnar collateral ligament. This has been shown on ultrasound and there would seem to be no doubt that this is the current problem. Because of this tearing and laxity of the ligament and subsequently the joint, she has pain and difficulty using the right hand for normal activities.
The question of actiology of the ruptured ligament remains unclear. It would seem she did not have any problems with it prior to the surgery and this is attested to by Mr Berger, who said the joint was normal in March 2010 when he examined her. She commented that the joint was swollen immediately after surgery and has remained troublesome since that time.
It is my opinion that the surgery for carpal tunnel release was, in some way, responsible for the damage to the right 1st ulnar collateral ligament. Whether it occurred at the time of surgery or shortly after the surgery remains uncertain, although she said there was swelling at the base of the thumb immediately after surgery. I would think the probability of these two events occurring quite independently and in an unrelated fashion, is really quite remote, although it is not clear how the carpal tunnel release led to the damage to the ulnar collateral ligament.
As such, I do believe that the damage to the right 1st MCP ulnar collateral ligament is related to her employment, as her employment is held to be responsible for the carpal tunnel syndrome and the carpal tunnel release in some way resulted in this ligament deficiency.
The applicant was referred to a plastic and reconstructive surgeon, Dr Damon Thomas, by Dr Grokop. After having evaluated the applicant Dr Thomas concluded:
Obviously one of the main reasons she has come in today was to clarify whether this injury could have been sustained during her carpal tunnel surgery by her previous hand surgeon. She does appear to have had an injury with laxity and would benefit from operative repair of this. The mechanisms as to how this occurred are impossible for me to hypothesize on. Louise herself does feel that the injury has occurred during this surgery and she was not having issues prior to this.[18]
[18] T10c, p 19.
On 6 August 2012, the applicant underwent an MRI of her right thumb with the radiologist, Dr Rick Flemming, finding:[19]
There is normal alignment of the bones of the thumb. There is normal bone marrow signal. The MCP and IP joints have a normal appearance. There is no joint effusion or perlarticular cyst. The collateral ligaments are intact and normal in appearance. There is no obvious abnormality of the 1st CMC joint. The flexible and extensor tendons have a normal appearance.
Conclusion:
No pathology seen in the thumb.
[19] T11c, p 20.
On 16 April 2013, the applicant was evaluated by Dr Gary Davison, occupational physician. Dr Davison concluded:
The claimant has no clinical evidence of persisting carpal tunnel syndrome following bilateral decompressive surgery.
There has been spontaneous resolution of the right wrist ganglion.
Clinical examination today revealed some nonspecific tenderness at the base of the right thumb which may represent the very earliest presentation of degenerative arthropathy.
I found no objective clinical evidence of impairment of the cervical spine.
The small disc protrusion at C6 – C7 is unlikely to be of any clinical significance.
The tenderness in the right trapezius probably represents a non-specific postural strain.
….. The prognosis for Ms Hogan’s accepted work-related conditions is excellent as these conditions have resolved in my opinion.
…. The non-specific pain at the base of the claimant’s right thumb is likely to be the result of constitutional factors. It must be noted that the claimant did not work for three-and-a-half years while on maternity leave. She has not been involved in any consistent computer-based work for seven years.
There is no evidence, to link the claimant’s current symptoms to her employment as a general clerk. It must be noted that independent orthopaedic opinion and independent upper limb surgical opinion is that the claimant’s right thumb symptoms are not related to the right endoscopic release surgery.
In my opinion, Ms Hogan is not suffering from any work-related condition at the present time.[20]
[20] T12c, p 28.
In a report by the applicant’s GP dated 5 March 2014, Dr Grokop concluded that:
The current conditions from which Mrs Hogan suffers are:
ongoing pain in her right shoulder, upper trapezius region and right side of her neck.
Intermittent right elbow lateral epicondylitis.
These symptoms are consistent with overuse (for her) of her right upper limb.
Louise Hogan’s current condition is NOT an aggravation of a previous or underlying condition![21]
[21] T14c, p 35.
In April 2014, the applicant underwent an ultrasound following which, radiologist Dr Anthony Swingler, concluded:
Mild supraspinatus tendinosis, but no tear.
Partial thickness subscapularis tear.
Mild bursitis with painful subacromial impingement.[22]
[22] T32a, p 235.
On 22 July 2014, the applicant was evaluated by consultant rheumatologist Dr Tony Kostos. In his report dated 29 July 2014, Dr Kostos concluded that:
Ms Hogan suffers from adhesive capsulitis of her right shoulder otherwise known as frozen shoulder.
The clinical findings of this condition are unmistakable on a proper physical examination and she has a decrease in glenohumeral movements noted in two planes that being abduction and external rotation.
… This problem only began six months ago and therefore is unrelated to a previous problem.
As far as I understand it is not a pre-existing condition.
… Her condition is aggravated when she tries to elevate her right arm because this movement is restricted.
… The natural history of adhesive capsulitis is that it does eventually resolved after one to two years.
… There is no relationship at all between her condition of adhesive capsulitis and her employment. It is an idiopathic condition.
… Her condition is related to factors other than her employment.
… She does not require treatment for employment -related condition because she does not have one.
… She does not have any employment-related aspect to her condition.
… She is able to undertake her normal physical activities but she needs to avoid activity requiring right arm reaching and elevation.
… She can undertake all her household tasks provided that she avoids right arm reaching and elevation.
… Current condition is not related to her previously accepted Comcare claims.
… She does not require any aids….
…. The main issue here is that her condition has been misdiagnosed and if the true diagnosis was made at the beginning then it would have been understood that this is an idiopathic condition and not related to employment.[23]
[23] T27c, p 113.
In September 2016, the applicant was physically examined by occupational physician Dr Nicholas Burke. In his report dated 13 September 2016, Dr Burke responded to questions put to him as follows:
1. Please provide your opinion on Ms Hogan’s current diagnoses. Please provide clinical justification.
Ms Hogan has persistent pain affecting the right upper limb. In the right shoulder, any frozen shoulder has now resolved. She has minor restrictions in range of motion of the right shoulder. In the right elbow, there is no evidence of any ongoing lateral epicondylitis. In my opinion, any lateral epicondylitis which she may have suffered has now resolved.
2. Do you consider that Ms Hogan suffers impairment as a result of the aggravation of right lateral epicondylitis sustained at work? If so;
a.Is the impairment permanent and will it continue indefinitely? Please provide clinical justification.
I do not believe that she suffers a permanent impairment as a result of the aggravation of the right lateral epicondylitis. At today’s assessment, there was a full range of motion in the right elbow. There was no tenderness. Provocation tests for lateral epicondylitis were negative and hence I do not believe that she is currently suffering from active lateral epicondylitis. Using the Comcare Guides, she would not rate any impairment in relation to Section 9.10 (Elbows).
b.If you are of the opinion Ms Hogan does suffer a degree of permanent impairment can you please refer to the Guide to the Assessment of the Degree of Permanent Impairment (Comcare/SRC Act) and please provide a percentage of impairment in regard to Ms Hogan’s current condition of aggravation of right lateral epicondylitis?
As I have reported above, there is no residual impairment in relation to the right elbow. There is no active right lateral epicondylitis at this particular time and hence I do not believe that she would rate an impairment with respect to the Guide to the Assessment of the Degree of Permanent Impairment (Comcare/SRC Act).
c.If you do consider Ms Hogan has a percentage of permanent impairment please advise if you feel [his] condition will deteriorate further resulting in an increase to the overall percentage of impairment. Please advise over what period of time this is likely to occur and please advise what percentage would be related to personal reasons and what percentage would be directly related to her compensable condition (if applicable). Please provide clinical justification.
Not applicable.
3. Do you consider that Ms Hogan suffers impairment as a result of the aggravation of right arm chronic pain syndrome sustained at work? If so:
At this stage, she continues to report symptoms associated with the aggravation of the right arm chronic pain syndrome. Nevertheless, there is essentially almost full range of motion in the right shoulder and elsewhere in the right upper limb there is a full range of motion. She continues to report ongoing pain symptoms. Overall, it would be my opinion that she does not suffer a permanent impairment as a result of the aggravation of the right arm chronic pain syndrome as per the Guide to the Assessment of the Degree of Permanent Impairment (Comcare/SRC Act).
a.Is the impairment permanent and will it continue indefinitely? Please provide clinical justification
b.If you are of the opinion Ms Hogan does suffer a degree of permanent impairment can you please refer to the Guide to the Assessment of the Degree of Permanent Impairment (Comcare/SRC Act) and please provide a percentage of impairment in regard to Ms Hogan’s current condition of aggravation of right arm chronic pain syndrome?
c.If you consider Ms Hogan has a percentage of permanent impairment please advise if you feel [his] condition will deteriorate further resulting in an increase to the overall percentage of impairment. Please advise over what period of time this is likely to occur and please advise what percentage would be related to personal reasons and what percentage would be directly related to her compensable condition (if applicable). Please provide clinical justification.
Not applicable.
4. Do you consider that Ms Hogan suffers impairment as a result of the aggravation of adhesive capsulitis sustained at work? If so:
With respect to her right shoulder, there was a slight reduction in range of motion in two elements forward flexion and lateral abduction. With respect to flexion, this would rate a 1% whole person impairment. With respect to abduction, this would rate a 1% whole person impairment. She would not rate an impairment with respect to external rotation, internal rotation, adduction and extension. Hence the overall impairment would be assessed as a 2% whole person impairment.
a.Is the impairment permanent and will it continue indefinitely please provide clinical justification
Yes.
b.If you are of the opinion Ms Hogan does suffer a degree of permanent impairment can you please refer to the Guide to the Assessment of the Degree of Permanent impairment (Comcare/SRC Act) and please provide a percentage of impairment in regard to Ms Hogan’s current condition of aggravation of adhesive capsulitis?
2% whole person impairment.
c.If you consider Ms Hogan has a percentage of permanent impairment please advise if you feel [his] condition will deteriorate further resulting in an increase to the overall percentage of impairment. Please advise over what period of time this is likely to occur in please advise what percentage would be related to personal reasons and what percentage would be directly related to her compensable condition (if applicable).
I do not believe it would deteriorate further.
5. In your opinion, is Ms Hogan’s employment with the Department of Human Services still contributing to, to a significant degree, to her current symptomatic presentation regarding the three compensable conditions (aggravation of right lateral epicondylitis, aggravation of right arm chronic pain syndrome and aggravation of adhesive capsulitis)?
a.If yes, please explain the task specific nature of her employment and how this has contributed to, to a significant degree, to her current symptomatic presentation.
As I have indicated above, I find it difficult to conclude that there is any significant ongoing contribution from her work to her ongoing presentation. Certainly, the aggravation of right lateral epicondylitis is almost completely resolved. The aggravation of adhesive capsulitis is essentially significantly improved. She continues to experience some symptoms associated with an aggravation of her right chronic pain syndrome. Nevertheless, she is no longer working with DHS and hence it does not appear that her current employment with DHS are impacting on her symptomatic presentation.
She reports that she continues to experience symptoms associated with her chronic pain condition (aggravation of right arm chronic pain syndrome). She reports that these issues mainly relate to any significant repetitive or forceful activities of the shoulders and elbows.
6. What other factors (behavioural, weight, family, social, lifestyle, alcohol, drugs, diabetes, etc), if any, have impacted on Ms Hogan’s condition?
Not applicable.
7. Please provide your prognosis and outline any treatment which you believe would assist Ms Hogan to achieve a return to capacity to perform her pre-injury duties? Please comment on duration and frequency of treatment and provide clinical reasoning.
Prognosis is reasonable. With respect to the underlying biomedical condition, she has made a good recovery. With time, I would expect a gradual improvement in the symptoms and disability that she continues to describe. She has been able to return to her pre-injury hours she is currently performing as a customer service officer at her pre-injury hours and hence it does appear that the long-term prognosis for her being able to work in her pre-injury duties is reasonable.
8. Please provide any additional comments you feel are relevant to this claim.
No other comments.
On 30 August 2016, the applicant was also evaluated by psychiatrist, Dr Peter Farnbach. In his report dated 29 September 2016, Dr Farnbach concluded that the applicant presents with a chronic pain disorder and, secondary to this, an adjustment disorder with depressed and anxious mood.
In response to a series of specific questions put,, Dr Farnbach opined as follows:
1. Please provide Ms Hogan’s current symptoms/clinical presentation and provide a current clinical diagnosis which meets the criteria for a psychological condition according to DSM-IV/DSM-V.
a. Provide causation factors diagnosis including the progression of the condition (Please include clinical signs and symptoms that support your diagnosis).
Ms Hogan’s adjustment disorder is predominantly secondary to chronic pain, however, is contributed to by her perception (rightly or wrongly) that a rehabilitation has been inadequately handled.
2. In your opinion, is the recent diagnosis of depression a direct result of the compensable conditions in claim 2 and 3; the right arm chronic pain, right lateral epicondylitis and the adhesive capsulitis?
(Please take into account that with each of the injuries, the employment caused an aggravation of pre-existing conditions)
a.Has Ms Hogan’s employment contributed to, to a significant degree, a current psychological condition?
b.Ms Hogan has lodged numerous injuries under workers compensation, in your opinion, is the rejection of certain injuries under workers compensation contributed to Ms Hogan’s presentation of psychological symptoms? If so, please detail the extent to which this occurred.
Ms Hogan’s condition is predominantly secondary to her right shoulder pain, although as noted above, she described mood symptomatology (on and off) from 2001 (Claim 1).
3. Throughout 2013 Ms Hogan reported to colleagues that she was experiencing personal issues relating to her divorce from her husband, troubles with her children and financial concerns. Please comment on how these factors contributed/continue to contribute to Ms Hogan’s current psychological injuries. Please detail any other matters that you think might be contributing to Ms Hogan’s psychological presentation.
I discussed these issues at some length with Ms Hogan. She denied that she was experiencing any particular difficulties with the children. As noted above, she described her divorce as relatively amicable.
While the breakdown of her marriage and financial issues have undoubtedly contributed to the current clinical picture, I am of the view that Ms Hogan’s major difficulties relate to chronic pain and related issues.
4. Please comment on any pre-existing conditions or factors contributing to the current clinical picture.
a.Are the injuries sustained at work the main contributing factors to the worker’s current psychological diagnosis and symptoms?
b.To what extent do Ms Hogan’s non-work-related factors such as the physical condition, pre-existing mental health condition etc. contribute to her psychological condition?
c.Please comment on any factors relating to the Ms Hogan’s personality and/or constitution contributing to the current clinical picture.
I have described Ms Hogan’s psychiatric history above. As discussed, the bulk of the current clinical picture is attributable to Ms Hogan’s chronic pain and her perception (rightly or wrongly) that her rehabilitation has not been appropriately or sensitively dealt with.
5. Was there a high probability that injury or a similar injury would have happened at about the same time and at the same stage of Ms Hogan’s life, if Ms Hogan had not developed her compensable psychological injuries at work?
As discussed above, I view Ms Hogan’s adjustment disorder as secondary to her chronic pain, particularly the right shoulder pain.
6. Please detail what treatment will be required in the management of Ms Hogan psychological condition? Please comment on the beneficial treatment modes, making reference to the type, frequency, timeframes of treatment and expected functional outcomes.
Ms Hogan should have more vigorous treatment for psychiatric symptomatology. In particular, she would benefit from medication to assist with sleep, as there is a great deal of evidence supporting the view that mood and anxiety symptomatology are significantly maintained by sleep deprivation, and chronic pain may also be exacerbated with sleep deprivation. She may, for example, benefit from the addition of a low dose of mirtazapine or, possibly, a low dose of quetiapine.
Given that Ms Hogan symptomatology is primarily driven by her chronic pain, consideration should be given to referring Ms Hogan to a pain management physician and/or a comprehensive pain management program. I realise she has attended a comprehensive pain management program at St Vincent’s hospital, however, it is worth considering re-referral to this program or to another similar program.
7. What is Hogan’s anticipated prognosis?
a.Please comment on capacity for employment, restrictions, barriers present, and any other strategies that may be utilised to assist in Ms Hogan’s recovery and return to pre-injury health.
From a psychiatric point of view, Ms Hogan is currently working at the limit of her capacity. With more vigorous treatment of her mood and anxiety symptomatology, I expect Ms Hogan’s symptomatology to substantially resolve. It is probable that with improvement in a psychiatric state, the chronic pain will also lessen.[24]
[24] T24a, p 188.
On 1 November 2016, Dr Farnbach provided a supplementary report where he stated:
I read Dr Burke’s report dated 13 September 2016.
I note that Dr Burke reports that “Ms Hogan continues to complain of chronic pain in her right arm/shoulder and she continues to experience some symptoms associated with an aggravation of a right chronic pain syndrome. Nevertheless, she is no longer working at DHS and hence it does not appear that her current employment with DHS is impacting upon her symptomatic presentation”.
To answer your questions in order:
1You have specified that Ms Hogan has developed an adjustment disorder due to her chronic pain for the accepted physical injuries. You also note contribution to this condition from Ms Hogan’s experiences with her rehabilitation at the DHS.
a. Do Ms Hogan’s experiences with rehabilitation at the DHS continue to contribute, to a significant degree, to Ms Hogan’s psychological symptoms typically given the period since she last worked at the department?
Ms Hogan describes continuing albeit reduced symptomatology continuously dating from her work with the Department of Human Services. She has developed chronic adjustment disorder and chronic pain disorder. These conditions by their nature can be self-sustaining and the fact that she has not worked with the Department sometime does not exclude a significant contribution.
It is my view therefore the Ms Hogan’s continuing symptomatology (adjustment disorder and chronic pain) are still contributed to a significant degree by her experiences with rehabilitation at DHS.
b. Does Ms Hogan’s chronic arm pain continue to contribute, to a significant degree, to Ms Hogan psychological symptoms noting the findings of Dr Burke?
Again, chronic pain disorder is by its nature self-perpetuating and can persist for a considerable period beyond removal from a situation. I am therefore of the view that while Ms Hogan may not have worked for DHS for some time her chronic arm pain can nevertheless continue to be contributed to by her experiences with her employment/rehabilitation at the DHS and, therefore, can continue to contribute to her other psychological symptoms.
2Given Dr Burke’s conclusion is that the employment related aspects of Ms Hogan’s chronic arm pain has resolved, in your opinion does Ms Hogan’s employment with the DHS continue to contribute, to a significant degree, to her current psychological condition? Please explain.
In this regard I respectfully disagree with Dr Burke. While the physical aspects of her condition may well have substantially resolved, somatoform pain is self-perpetuating in nature and it is my view that her employment with DHS continues to contribute to a significant degree to her chronic arm pain and other psychiatric/psychological symptoms.
It should be noted that Ms Hogan’s chronic arm pain can be regarded as a psychological rather than physical condition.[25]
[25] T27a, p 199.
Consideration and findings
Aggravation of tennis elbow, frozen shoulder and chronic pain syndrome claims
A central question in the consideration of each of the decisions under review is whether, on the basis of the evidence before it, the Tribunal is satisfied that the applicant continues to suffer from the previously accepted conditions of aggravation of tennis elbow, aggravation of frozen shoulder and aggravation of chronic pain syndrome.
The respondent contends that the applicant does not continue to suffer from each of these previously accepted conditions and even goes so far as to question whether the applicant ever did. The respondent places great reliance on the evidence of occupational physician, Dr Burke, both his report dated 13 September 2016, together with his oral evidence at the hearing. The Tribunal can say at the outset that it was very impressed by the evidence of Dr Burke. The Tribunal is satisfied that Dr Burke has experience and expertise that is directly relevant to the assessment that he undertook. The Tribunal found his direct evidence to the Tribunal to be frank, concise and reliable.
Dr Burke prepared his report after having undertaken a physical examination and interview of the applicant. The examination was undertaken in response to a request from Allianz Australia following the applicant’s claim for compensation for permanent impairment of her previously accepted conditions, as well as for a new secondary condition of “pain, loss of sleep leading to stress and depression”.[26] The claimed new condition was secondary to the aggravation of frozen shoulder injury.
[26] ST3.1, p 21.
In his report Dr Burke noted that the applicant described pain in her Matacarpophalangeal (“MCP”) joint over the radial aspect and over the thenar eminence at the base of her right thumb. Dr Burke also noted in his report that:
(a)the applicant had been seen by her orthopaedic surgeon, Dr Berger and that Dr Berger had reported in January 2011 that the applicant required a right ulnar collateral ligament reconstruction;
(b)the applicant was emphatic that these symptoms developed immediately after the carpal tunnel syndrome surgery;
(c)the applicant then started to develop symptoms in the right elbow region and that she had some treatment but not with complete resolution;
(d)following a change in duties at her workplace with additional workload, in early 2014 the applicant started to develop pain in the right side of the neck with extension into the right shoulder;
(e)there was no specific injurious event and that the applicant’s condition deteriorated further;
(f)in July 2014, the applicant was reviewed by Dr Kostos and diagnosed with adhesive capsulitis of the right shoulder;
(g)Dr Kostos had reported that the applicant presented with a classical case of frozen shoulder and that she had quite marked reduction in glenohumeral movement;
(h)the applicant then had further treatment including injections and physiotherapy;
(i)the applicant subsequently resigned from her position with DHS in October 2015 and took up a new role with Wesley Mission and following that, a casual position with Hobsons Bay City Council as a customer service officer working approximately 25 hours per week;
(j)the applicant continued to report ongoing symptoms of pain in the right shoulder and right upper arm; and
(k)the applicant stated to Dr Burke that any significant overhead reaching or stretching activity tended to provoke symptoms. He noted that the applicant had a slightly diminished range of motion in the right shoulder.
In his report, Dr Burke noted that the applicant’s description of her pain and impairment was that she:
(a)could do lifting and carrying;
(b)has difficulty with cleaning activities such as showers or windows;
(c)has pain in the right hand and this mainly affects the thenar eminence as well as the radial aspect of her right wrist and MCP joint of her thumb;
(d)symptoms in her right thumb/hand tend to be associated with significant repetitive activity;
(e)her right elbow is “not too bad”. She feels as though it occasionally swells but that if she does a lot of lifting and carrying activities she can get some issues in her right elbow;
(f)can drive, however after 20 minutes she will need to move her hand and move her arm;
(g)can cook, prepare food and vacuum;
(h)lives in an apartment and generally can cope with most of the cleaning, however, Comcare does provide her with a cleaner two hours a week who looks after the shower, the fridge, the oven and other similar areas;
(i)can do a load of washing, however, she does not hang it out;
(j)can go shopping, however, she mainly uses her left hand for lifting and carrying;
(k)does not socialise to any significant degree, has no major interests, hobbies, recreations or pastimes although she continues to go to the gym as much as she can; and
(l)is undertaking current treatment for all by way of an exercise physiology program which she has once every two to three weeks and continues to see her psychologist on an intermittent basis approximately every three weeks. She takes medication of Crestor 20 mg a day, Cymbalta 120 mg a day, Somac 40 mg a day and Celebrex.
Having undertaken a physical examination of the applicant Dr Burke described the applicant as being a pleasant lady, in no significant distress, who presented in a quite straightforward fashion. He noted more specifically that:
(a)the applicant’s height was 165 cm and her weight was 95 kg;
(b)there was a full range of motion in the left shoulder abduction to 180° and on the right to 160°. Forward flexion on the left to 180° and on the right to 160°, abduction was 40° on both sides, extension was 40° on both sides, external rotation 80° on both sides, internal rotation 80° on both sides;
(c)there was a full range of motion in the elbows there was no significant tenderness over the lateral epicondyle;
(d)provocation test for lateral epicondylitis was negative;
(e)in the right wrist, there was a full range of motion;
(f)there was tenderness around the MCP joint of the right thumb as well as in the thenar eminence. However, there was a full range of motion in the wrist and thumb. There was good grip strength; and
(g)neurologic examination in the upper limbs was normal (power, tone, reflexes and sensation).
On the basis of his examination and interview of the applicant Dr Burke concluded that the applicant:
…has persistent pain affecting the right upper limb. In the right shoulder, any frozen shoulder has now resolved. She has minor restrictions in range of motion of the right shoulder. In the right elbow, there is no evidence of any ongoing lateral epicondylitis. In my opinion, any lateral epicondylitis which she may have suffered has now resolved.
Dr Burke’s conclusion in relation to the applicant’s condition of aggravation of chronic pain syndrome was somewhat different. In cross-examination, Dr Burke acknowledged that the applicant continued to experience some level of ongoing pain but accepted that external psychosocial factors, not related to her previous employment with DHS, were a reasonable explanation for her ongoing pain. Dr Burke’s view was that as the applicant was no longer in employment with DHS, the physical factors that may have contributed to the aggravation of the applicant’s underlying chronic pain condition are no longer present.
The applicant rejects the conclusions reached by Dr Burke and the contentions put by the respondent. The applicant maintains that she continues to suffer from each of the previously accepted conditions and is entitled to ongoing compensation under the SRC Act.
The applicant’s evidence to the Tribunal was that she continues to suffer from the conditions and continues to experience significant ongoing pain in her thumb, arm, elbow neck and shoulder, in particular when she is completing tasks of a repetitive nature, or typing or using a mouse continuously or riding a bike or driving for a long distance. The applicant contends that her chronic pain emerged as a consequence of her initial carpel tunnel injury and has been further aggravated through the course of her employment with DHS, and in particular, when she took the self-service position as part of her return to work program. In the case of her aggravation of tennis elbow and frozen shoulder, through ongoing repetitive use of her right arm and shoulder predominantly as a consequence of her work activities, although she acknowledges that those conditions have also been impacted by non-work activities to some degree. In the case of her chronic pain syndrome, again as a consequence of her repetitive use of her right arm and shoulder, predominantly through her work activities but also as a consequence of what she claimed as being a hostile work environment, including an absence of support in dealing with her conditions as well as harassment and bullying.
The applicant stated that while employed at the self-service desk, which she described having done for approximately two years under a lot of pressure, she was continuously in a standing position stretching her arm out for eight hours a day on her own. The applicant stated that following her departure from that position it was being staffed by two or three people and not just one. While acknowledging that the carpel tunnel surgery had been successful in respect of her hands and wrists, the applicant told the Tribunal that she still feels pain in her right side including, in particular, her thumb and arm. She told the Tribunal that when she does repetitive things, it starts to hurt along her arm and around her neck and shoulder.
The applicant claims that as a consequence of her ongoing conditions, her physical capacity has been significantly impaired; in particular, in relation to her right shoulder and neck region. The applicant stated in her pre-hearing statement that:
Functions that I find difficult are hanging clothes on an outside line I get around this by only completing small loads of washing and hanging them inside on a clothes hoist so I don’t have to continuously raise my right arm.
Chopping vegetables, gripping and lifting heavy pots of water or trays is difficult and can be dangerous with heavy pots of hot food.
I can’t sleep on my right side as it becomes uncomfortable and painful.
Pumping petrol, I can’t use my right hand to press the bowser; I need to use my left hand.
I don’t carry weight on my right side, e.g. handbag, shopping I use my left arm to do this.
I still need counselling I have lost my confidence and depression is always creeping up on me. I can’t afford counselling and only push myself to go on as I have a responsibility to my kids. It seems like an endless cycle.
The applicant also contends that her pain has also contributed to, as well as having been impacted by, her anxiety and depression. In her evidence, the applicant stated that her anxiety and depression were contributed to, to a significant degree, by the stress she had experienced in the course of her employment at DHS following her return to work in May 2011. The applicant gave evidence that she had been significantly emotionally impacted at work as consequence of what she perceived to be a lack of support in her return to work, and in the effective management of her accepted conditions. The applicant also described having been harassed and bullied in her work environment. She described these factors as having contributed significantly to her feelings of anxiety and depression. The applicant stated that the level of pain and the physical restrictions she feels, as consequence of her pain while working or undertaking other activities in her daily life, had not changed and she believes she will have to live with the pain and restrictions for the rest of her life. She stated that as a consequence of her pain, she struggles to perform basic tasks with her right arm and that the pain has also caused her restless sleep and further compounded her stress, anxiety and depression.
The applicant rejects the conclusions of Dr Burke. She stated in her evidence that just because Dr Burke has not identified a physical constraint in her movement, does not mean that she does not feel real pain and feel constrained in her movement as a consequence.
The applicant places particular reliance on the reports of occupational physician Dr Bernadette Trifiletti, in support of her contentions. In her March 2015 report Dr Trifiletti stated that:
Ms Hogan reports her dominant right shoulder condition has been essentially stable with periods of fluctuation.
There has been a recent decline in pain tolerances reported by her due to reported stresses of work. This includes suffering the panic attack with the initial Dragon Dictate software teacher when she felt overwhelmed by her not knowing what to do. She states that in the office she felt scared and embarrassed. She reported increased heart rate, dry mouth and a sense she was going to faint.
She saw her general practitioner, Dr Lifson, who increased her usual antidepressant, Cymbalta to 120mg per day, and commenced seeing an EAP counsellor through the workplace. She has been taught breathing techniques and progressive relaxation and states that she can now manage her anxiety better. She gave an example that she was stuck in the lift before catching the train to attend today’s assessment but managed to deal with her stress using these techniques.
However, she does continue to suffer from poor, non-refreshing sleep with initial insomnia and alertness. She states that she feels fatigued when she wakes at 6:15 AM.
In respect of activity levels, motivation and social engagement, she considers she functions better outside of the workplace. Socially, she states that she wants to be more involved; she still enjoys spending time and doing activities with her primary school aged sons-although has had some diminishment of interest in watching television or movies. Her appetite fluctuates; however, she notes she has increased weight as a result of being on increased antidepressant medication. She does not have any sustained lowering of mood but still is tearful at times when thinking about her work circumstances or discussing what she sees as a career decline.
She states there is “no way out” because if she is unable to do the job, there is uncertainty about her future.
The difficulty the Tribunal has with the applicant’s reliance on Dr Trifiletti’s assessment is that it does not consider that the assessment supports the applicant’s contentions to the extent that the applicant appears to suggest. While Dr Trifiletti noted ongoing issues with the applicant’s thumb, that is not a condition currently before the Tribunal for review. Dr Trifiletti also acknowledged that non-physical factors may be contributing more significantly to the ongoing pain symptoms the applicant is describing, including stress which the applicant associates with work. Dr Trifiletti noted the applicant’s self-described symptoms as follows:
In respect of her pain symptoms, these are essentially unchanged. There is reported soft tissue pain she is able to do most day-to-day activities with avoidance of extremes of reach and regular posture breaks and avoidance of sustained keying. Her right elbow and bilateral wrist symptoms have settled with occasional aching over the elbow but no focal symptoms, loss of range of movement, deformity or pain. The prior right shoulder, girdle and neck pain which commenced over a year ago remains manageable. She reports that it is a “stretching feeling” which is located over the cervical occipital junction extending to the right suprascapular area.
She states she feels that there is increasing shoulder movements with limitations due to pain affecting movement rather than actual shoulder movement being restricted. She has not had any specific treatment for this recently although is due to commence review with a physiotherapist.
In addition, Dr Trifiletti noted:
…frequently tearful when discussing the impacts of not succeeding in working with Dragon Dictate and a sense of failure in the workplace. Her affect was mood congruent with normal form and flow of thought, content relating to feelings of being overwhelmed by her circumstances and distress and frustration in the workplace. She distinguished coping better when not at work.
Cervical spine and upper limb examination revealed mild tenderness over the right AC joint. No wasting was evident. It was near full range of movement without demonstrable impingement. Muscle strength was reasonable in the upper limbs. Ligament laxity in the right MCP joint noted as at prior assessments.
Dr Trifiletti goes on to note that:
When pain becomes entrenched the prognosis is more guarded. Additional factors such as distress, beliefs about harm and worsening of symptoms by doing certain actions can further entrench the complex cycle of disability which becomes reinforced by progressive failures of return to work.
The applicant reinforced these observations in her direct evidence to the Tribunal.
In her direct evidence to the Tribunal, the applicant stated that her mental state during the period she returned to work, was her lowest ever and that it was as a consequence of being bullied in her workplace. She told the Tribunal that she did not feel supported by DHS on her return to work and felt like a “no one”. The applicant told the Tribunal that her treatment at work had contributed significantly to increased depression and anxiety at the time. She told the Tribunal that she had wanted to do a more community focused role, but that DHS had not come back to her in response to her requests. She stated that DHS would just “shove me in the corner and ignore me”. When asked why she had resigned, the applicant told the Tribunal “I wasn’t thinking right. I was depressed”. The applicant told the Tribunal that she believed that DHS should have encouraged her to take time off rather than resign. The applicant told the Tribunal that she was depressed at the time of her resignation and continues to be impacted as a consequence of the treatment she received while working at DHS.
Under cross-examination, the applicant conceded having felt better when she first took up her job at Wesley Mission following her departure from DHS because she wanted to hope things were going to be better but that after around a month or so she realised she couldn’t do the job and her anxiety and depression increased again. When asked whether she had been free from depression during the early period with Wesley Mission, the applicant said no, she believed that she was experiencing depression for the whole time at Wesley Mission, including in the early period but had just not realised it at the time. She told the Tribunal “I walked out of a job I had for 14 years with no income and 2 kids”.
The applicant described then working with the Hobsons Bay City Council for around 15 months with no issue but said “I still felt depressed – you have to push you way though”. The applicant also described working in a further role following her time with the Council and said she was able to cope, but was only dealing with about five people a day and that the role does not involve repetitive work.
Under cross-examination, the applicant acknowledged that she had first complained about depression symptoms back in 2001. When asked whether she saw her doctor in relation to her depression in 2001, she said she could not remember. However, it was clear from the Tribunal materials that the applicant had been treated for symptoms of depression by her GP, Dr Grokop, in 2001 and was prescribed an antidepressant which she continued to take on an intermittent basis of approximately two years.[29] When asked why she had not told the doctors that she saw during her period working with DHS about her first bout of depression in 2001, the applicant said she had not deliberately failed to tell them. When asked in cross-examination whether she had been on anti-depressants for two years prior to any issues associated with her work at DHS the applicant said, “I must have forgotten”.
[29] See Dr Grokop’s clinical records between 2001 and 2003.
When it was first put to the applicant that her clinical records suggest she suffered post-natal depression after the birth of both her first and second child, she denied suffering post-natal depression after her second child. However, when pressed further the applicant conceded that she did have post-natal depression after the birth of both children. When asked why she did not disclose the second episode of post-natal depression to Associate Professor Paoletti, the applicant stated that “I probably just didn’t remember”.
In addition, when pressed under cross-examination the applicant conceded that at the time she was working with DHS she had been suffering financial stress as a consequence of having to meet mortgage repayments and was also experiencing physical and psychological abuse at the hands of her former husband. She told the Tribunal that her former husband was constantly engaging in verbal abuse and then after the birth of their two kids he “started physically abusing me”. The applicant told the Tribunal that her former husband would choke her or slap her in the face. Under cross-examination when pressed on whether these external factors may have anything to do with her depression, the applicant conceded that it was possible to some degree although she maintained that her work environment was the most significant contributing factor. The applicant also maintained that the other external stress factors in her life did not impact on how she felt at work. Again, when asked why the applicant had not properly disclosed these details to Associate Professor Paoletti or Dr Farnbach, the applicant stated that she “probably did but they just didn’t write it down”. When pressed further the applicant said she did not believe she had been asked about it and in any case, did not consider it relevant.
In support of her contentions regarding her psychological condition, the applicant also relies in particular, on the reports of Dr Farnbach as well as those of Dr Lifson, Ms Gale and Associate Professor Paoletti.
Dr Farnbach in his supplementary report of 1 November 2016, relevantly notes that:
Ms Hogan describes continuing albeit reduced symptomatology continuously dating from her work with the Department of Human Services. She has developed chronic adjustment disorder and chronic pain disorder. These conditions by their nature can be self-sustaining and the fact that she has not worked with the department for some time does not exclude a significant contribution.
It is my view therefore that Ms Hogan’s continuing symptomatology (adjustment disorder and chronic pain) are still contributed to a significant degree by her experiences with rehabilitation at DHS.
Dr Lifson in his report dated 20 May 2017, notes that:
[The Applicant] is suffering from chronic right upper limb pain including right lateral epicondylitis and right subacromial bursitis, which was caused by the repetitive nature of her work at the Department of Human Services. Due to chronicity of her pain, and the lack of support from her employers, she developed depression.
The reports of Ms Gale and Associate Professor Paoletti on their face certainly support the position of the applicant in this respect. In her report dated 12 September 2017, Ms Gale stated:
It is in my professional opinion that [the applicant’s] depressive symptoms are secondary to her physical injuries and workplace bullying. [The applicant] described herself as possessing a strong work ethic, specifically achievement at work, which appeared to be strongly tied to her self-esteem. Her inability to undertake their usual duties and contribute to the team in the usual way was very difficult for [the applicant]. However when she requested alternative duties so that she could feel that she was contributing, no alternatives were offered by management. [The applicant] stated that she felt ignored and bullied by management which further compounded her own perceptions that she was worthless and of no value. She further stated that she felt belittled, dehumanised and degraded.[30]
[30] Psychological Report of Sarah Gale, psychologist dated 12 September 2017 at p 2.
In his report dated 2 June 2017, Associate Professor Poletti states:
Psychiatric diagnoses
From a psychiatric point of view, [the applicant] suffers from:
1.Chronic Adjustment Disorder with Mixed anxiety and Depressed Mood (DSM-5 309.28) (ICD-10CM F43.23)
2.Somatic Symptom Disorder with Predominant Pain (DSM-5 300.82) (ICD-10CM F45.4)
Causation
Employment at Centrelink would have been a “significant contributing factor” to the precipitation of the above, with two elements:
othe development of the physical symptoms
othe manner in which a return to work process was allegedly handled.
It remains so, through continuity of symptoms and through the content of the mental processes.
[The applicant] has a history of postnatal depression after the first pregnancy, but she recovered from that episode and she was fine after the second pregnancy in that respect. The salient factor in the current situation is her employment.
The separation/divorce, which [the applicant] did not attribute to this, would also been a factor in reducing the capacity to deal with the work-related issues, but does not take away the role of employment in the current condition.[31]
[31] Report of Associate Professor Paoletti dated 2 June 2017 at p 12.
There are a number of difficulties the Tribunal has with the applicant’s contentions regarding her 2016 claim for a secondary psychological injury.
The Tribunal accepts, on the basis of the independent medical evidence before it, that the applicant suffers from chronic pain disorder, adjustment disorder involving anxiety and depression as well as somatic symptom disorder. The Tribunal is also satisfied, on the basis of the independent medical evidence, that the applicant’s underlying chronic pain disorder is a psychological and not a physical condition, although, as noted earlier in these reasons, the Tribunal accepts that the applicant’s previously accepted condition of aggravation of chronic pain syndrome involved aggravation of the underlying condition as a consequence of physical and not psychological factors. However, the Tribunal does not accept, as indicated in each of the reports on which the applicant relies, that those conditions have been contributed to, to a significant degree, by the applicant’s treatment while working with DHS as contended by the applicant.
More specifically, having considered all of the evidence before it, the Tribunal does not accept that the applicant was harassed or bullied in any way during her employment with DHS, nor does it accept the applicant’s contention that the respondent had failed to take appropriate steps to support her in her return to work, to find appropriate alternative duties for her or to appropriately train her. In reaching this conclusion, the Tribunal does not wish to suggest that the applicant found her transition back into work an easy process. Clearly, it was not. The Tribunal accepts that the applicant found the process of reintegrating into the workplace from May 2011, following her period of extended leave challenging and frustrating, but it does not accept that this was in any way a consequence of the actions of her employer or the broader environment of the workplace at DHS.
The Tribunal found the applicant’s evidence regarding bullying and harassment within the DHS workplace to be vague and unpersuasive. The few specific examples of such treatment the applicant made reference to in her evidence to the Tribunal, were not supported by any independent witness. The Tribunal was unpersuaded by the applicant’s claim that a regional manager had effectively threatened her employment at DHS if she did not use Dragon dictate. The broader evidence strongly suggest that considerable efforts were being made by DHS to find appropriate activities for the applicant to undertake even following the failed attempt to utilise Dragon dictate which the Tribunal finds inconsistent with a person in authority at DHS threatening the applicant’s employment in the manner suggested. Similarly, the example the applicant provided of her having become the butt of jokes in relation to her use of Dragon dictate by people saying “scratch that” as they walked past, would appear to be inconsistent with the generally positive comments the applicant has made in respect of her work colleagues more generally. Even accepting that the words were used on some occasions the Tribunal is not satisfied, on the basis of the broader evidence, that such comments were made in a manner that could be described as harassment or bullying. The majority of references the applicant provided in respect of claimed harassment or bullying behaviour were very generalised – “I was treated like I was not there”, “I made to feel like I was no one”, “no one cared whether I was there or not” were largely subjective statements about how she herself was feeling in the environment at the time and not specific claims of statements or actions made in respect of her by her employer or work colleagues.
Similarly, the Tribunal found the applicant’s evidence regarding the lack of support provided to her by DHS in her return to work and in seeking to address her accepted conditions to also be unpersuasive. Not only was there was no persuasive, independent evidence to corroborate the applicant’s contentions in this respect, the objective independent evidence before the Tribunal supports a conclusion that DHS had, at all times acted reasonably towards the applicant in respect of her conditions including having regard to medical advice. It was clear that DHS endeavoured to put in place a suitable return to work program to assist the applicant in her transition back into the workplace and taking appropriate account of her conditions and work capacity at the time. DHS made multiple attempts to alter the applicant’s duties and responsibilities to account for her previously accepted conditions, even following the failed take up of Dragon dictate. DHS did offer training to assist the applicant in taking on new functions. In the end, it was the applicant herself who elected to resign from her position. There is no persuasive evidence before the Tribunal that the applicant was forced out of her employment or that a course of action was put in place by her employer to encourage her to come to that decision. On the contrary, the independent evidence was that her employer did all it could acting reasonably to find a way to make her employment with DHS productive and suitable having regard to her accepted conditions.
It was clear from the applicant’s evidence that on returning to work she felt a lack of recognition of her seniority and experience, which was entirely understandable. It was clear that she was frustrated at not being able to persuade management that her suggested alternative duties should be taken up although, again, there was no independent evidence that management’s refusal to do so was unreasonable in all of the circumstances. It was also clear from her evidence that over time the applicant developed a sense of not belonging in the work environment. However, in the Tribunal’s view, none of these circumstances amounts to a lack of responsibility, care and support for the applicant on the part of DHS nor evidence of bullying or harassment by fellow team members.
Further, the Tribunal accepts the respondent’s contention that on an assessment of all of the evidence before the Tribunal, it is clear that the applicant has suffered from anxiety and depression and her associated underlying chronic pain for a considerable period of time and well before she reintegrated back into the workplace. The applicant conceded herself in cross-examination that she had experienced a bout of depression as early as 2001 which is before her reported symptoms regarding even her first accepted condition of carpel tunnel syndrome.
In addition, the Tribunal is satisfied on the evidence, that there were several factors that contributed materially to the applicant’s anxiety and depression during the time of her employment with DHS, which the Tribunal accepts may have in turn exacerbated her feeling of pain but which were unrelated to her work. Those external factors include financial pressure felt in connection with the payment of her mortgage, the abuse the applicant suffered at the hands of her former husband, as well as the breakdown of her marriage.
As referred to above, in cross-examination the applicant conceded that she had experienced financial stress during this period and also that she had been subjected to abuse at the hands of her former husband. In the absence of evidence from the applicant’s former husband, the Tribunal is reluctant to make specific findings in respect of the abuse the applicant. However, the Tribunal found the applicant’s evidence in this respect to be credible, and on the basis of that evidence the Tribunal is satisfied that the applicant suffered a level of abuse through the course of her marriage and in particular, after the birth of her children.
The applicant maintains that neither the abuse she suffered, nor other stress factors external to her work were significant contributing factors to her feelings of anxiety and depression during the period following her return to work with DHS. The Tribunal does not accept the applicant’s contention in this respect. There is no question in the mind of the Tribunal that the pressures which the applicant conceded were at play were very serious and were significant contributing factors to her feelings of anxiety and depression and the associated chronic pain condition she was suffering from during this period in her life. The applicant also maintained that the break-down of her marriage was not a significant contributing factor to her feelings of anxiety and depression during this period. Again, the Tribunal does not accept this contention. The Tribunal is satisfied, on the basis of the evidence before it, that the breakdown of the applicant’s marriage to her former husband was not amicable as suggested by the applicant and also referenced in Dr Paoletti’s report, but rather was acrimonious and an additional source of stress during the relevant period.
The difficulty the Tribunal has with the applicant’s reliance on the reports of Dr Farnbach, Ms Gale and Associate Professor Paoletti in support of her contentions is that it is clear from their reports that they have not been provided a complete history of the applicant’s historical mental health issues going back to 2001. This was most marked in the case of Ms Gale’s report but was also present in the case of Associate Professor Paoletti’s report where he acknowledged the applicant’s post-natal depression but not her experience with anxiety and depression in the period before her initial carpel tunnel injury. Nor had any of them, including Dr Farnbach, been provided with the applicant’s marital history including the abuse she suffered. When asked under cross-examination why the applicant had failed to provide the history of her domestic abuse the applicant denied that she had omitted to do so saying “I probably did but they didn’t put it in there”. Again, the Tribunal found the applicant’s evidence in this respect to be unpersuasive and does not accept it.
In addition, the Tribunal accepts the respondent’s contention that the applicant would appear to have significantly downplayed her post-natal depression following the birth of her second child, particularly in respect of her consultation with Associate Professor Paoletti. The Tribunal accepts the respondent’s contention that this is not consistent with the applicant’s medical history and further that, again, it was relied upon by Associate Professor Paoletti in reaching his conclusions regarding the contributing factors to the applicant’s chronic pain syndrome condition. As mentioned earlier, the applicant herself conceded when pressed that she had suffered bouts of depression following both of her children’s births. The Tribunal found the applicant’s suggestion that she probably just did not remember that she had suffered depression after the birth of her second child to be implausible.
The Tribunal is satisfied that the respective conclusions of Dr Farnbach, Ms Gale and Associate Professor Paoletti, regarding the contribution of the applicant’s employment to her ongoing chronic pain and associated anxiety and depression, are not reliable for these reasons. The Tribunal means no professional discourtesy in reaching this conclusion. As contended by the respondent, the Tribunal is satisfied that they were each denied the opportunity to fully understand the applicant’s mental health and marital history that in the Tribunal’s view was critical in reaching a properly informed professional opinion.
The Tribunal is not satisfied that psychological factors related to the applicant’s employment with DHS contributed to a significant degree to any of her diagnosed conditions of chronic pain disorder, chronic adjustment disorder (with anxiety and depression) and somatic symptom disorder. As referred to earlier, under the SRC Act “significant degree” means a degree that is substantially more than material.[32] The Tribunal is not satisfied that that threshold has been met in the circumstances of this case, as it does not accept that the psychological conditions of which the applicant complains were substantially connected to her employment. Again, for the reasons already set out, the Tribunal is satisfied that the applicant’s underlying psychological conditions predate the period of employment that is the basis of the applicant’s claim, namely the period following her return to work from extended leave. The Tribunal does not accept the applicant’s claim that her treatment at work contributed in a significant way to her underlying psychological conditions and is satisfied that those conditions, or any aggravation of those conditions during the period of employment that is the basis of the applicant’s claim, are a consequence of factors that were external to her employment; including external stressors such as ongoing financial pressure, the abuse the applicant suffered and the breakdown of her marriage.
[32] See section 5B(3) of the SRC Act.
For these reasons, the Tribunal does not accept that the applicant’s claimed new psychological conditions were contributed to, to a significant degree, by the applicant’s employment with DHS, such as to give rise to an entitlement under section 14 of the SRC Act.
Psychology treatment claims
Regarding the applicant’s claims in respect of psychology treatment from April 2016 in relation to the previously accepted conditions of aggravation of tennis elbow, chronic pain syndrome and frozen shoulder, the Tribunal accepts the contention of the respondent that the claimed treatment in fact related to the applicant’s underlying condition of anxiety and depression or other psychological conditions which, for the reasons set out, are not compensable conditions for the purpose of the SRC Act.
Section 16 of the SRC Act states in part:
(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)…
The question to be considered in respect of this claim is what is the injury to which the treatment relates. For the reasons set out earlier, the Tribunal is satisfied that each of the previously accepted conditions arose out physical aggravating factors, namely, the applicant’s repetitive use of her right hand and arm and stretching, and not psychological factors. The Tribunal is satisfied that the applicant’s psychology treatment related to the applicant’s other psychological conditions which were not within the scope of the previously accepted conditions. The applicant made her first claim for psychology treatment undertaken with Ms Sara Gale in April 2016. Not long after this the applicant had made her claim in respect of the secondary psychological injury which have already been addressed by the Tribunal. The applicant was subsequently seen by Dr Farnbach, who discussed in his report the applicant’s depressed symptomology at some length. Dr Farnbach noted that the applicant was at the time seeing a psychiatrist in respect of her “symptoms of depression” and ultimately diagnosed the applicant with chronic pain disorder and secondary to this, an adjustment disorder with depressed and anxious mood. On the basis of Dr Farnbach’s report together with the timing of the applicant’s psychology treatment, the Tribunal is satisfied that the treatment related to these further claimed psychological conditions and not the previously accepted conditions.
Accordingly, as the psychology treatment was in respect of non-compensable conditions, the treatment is not recoverable in accordance with section 16(1) of the SRC Act.
Decision
The decisions under review are affirmed.
I certify that the preceding 116 (one hundred and sixteen) paragraphs are a true copy of the reasons for the decision herein of The Hon. Matthew Groom, Senior Member
..............................[SGD]..........................................
Associate
Dated: 7 May 2021
Dates of hearing: 26 and 27 November 2018 Applicant: In person Advocate for the Respondent: B. Lochert
Key Legal Topics
Areas of Law
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Employment Law
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Administrative Law
Legal Concepts
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Remedies
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Causation
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Statutory Construction
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Appeal
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Procedural Fairness
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