HZQF and Secretary, Department of Social Services (Social services second review) - [2015] AATA 620

HZQF and Secretary, Department of Social Services (Social services second review) [2015] AATA 620 (21 August 2015)

Division GENERAL DIVISION

File Number

2014/4406

Re

HZQF

APPLICANT

And

Secretary, Department of Social Services

RESPONDENT

DECISION

Tribunal
Deputy President Dr Christopher Kendall

Date 21 August 2015

Place Perth
The decision under review is affirmed.
............................[sgd]............................................
Deputy President Dr Christopher Kendall
CATCHWORDS
SOCIAL SECURITY – Disability Support Pension – Whether applicant’s impairments attract 20 points or more under the Impairment Tables – Whether applicant has a “continuing inability to work” - Decision under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 – 35(3)
Social Security Act 1991 - 94(1) – 94(1)(a) - 94(1)(b) – 94(1)(c) - 94(3) – 94(2) -- 94(2)(a) – 94(2)(b) - 94(2)(c) – 94(3) – 94(3)(a) - 94(3)(b) – 94(3C) – 94(3D) – 94(3E) - 94(4) – 94(5)
Social Security (Administration) Act 1999 – Schedule 2
Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 - 6(3) – 6(4) – 6(5) – 6(6) - 6(7) –10(1) –11 – Table 1 – Table 2 – Table 5
Social Security (Requirements and Guidelines – Active Participation for DSP): Part 2 – 5(2) – 5(3) – 5(4) – 5(5)
CASES
Australian Securities and Investments Commission v Administrative Appeals Tribunal and Anor (2009) 181 FCR 130
Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Crossland and Secretary, Department of Family Community Services [2004] AATA 864
Re Fanning and Secretary, Department of Social Services [2014] AATA 447
Secretary, Department of Social Security v Pusnjak (1999) 56 ALD 444
Uebergang and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2001] AATA 642
Woodiwiss and Secretary, Department of Family and Community Services [2003] AATA 846
Yazdari and Secretary, Department of Social Services [2014] AATA 34
REASONS FOR DECISION
Deputy President Dr Christopher Kendall
21 August 2015
INTRODUCTION

Pursuant to section 35(3) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal can restrict the publication of the names of parties to proceedings and allocate a pseudonym to parties to proceedings: Australian Securities and Investments Commission v Administrative Appeals Tribunal and Anor (2009) 181 FCR 130 at [149].
The Applicant in these proceedings asked that her personal history not be publically disclosed. The Tribunal agreed and made orders restricting the name of, and any information that might identify, the Applicant in these written reasons.
Throughout these written reasons the Applicant will be referred to as “the Applicant”.
This matter requires the Tribunal to determine whether the Applicant qualifies for a Disability Support Pension (“DSP”).
The Applicant seeks review of a decision of the Social Security Appeals Tribunal (the “SSAT”) made on 24 July 2014, affirming the decision of a Centrelink Authorised Review Officer (“ARO”), dated 23 May 2014. The ARO had affirmed a decision by Centrelink that the Applicant was not qualified for DSP when she made her claim for DSP on 16 April 2014. That decision was made on the basis that the Applicant’s impairments did not attract a rating of at least 20 points under the Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 (the “Impairment Tables”).
BACKGROUND
On 13 January 2014, the Applicant lodged a claim for DSP with Centrelink (the “DSP Claim”). Her DSP claim was dated 13 June 2014 (T9 at 55-83).
In her DSP Claim, the Applicant described her disabilities as (T9 at 68):
(i)        Both arms – Epicondylitis
(ii)       Depression and Anxiety
(iii)      SVT – heart condition
The Applicant’s DSP Claim was supported by a medical report dated 14 January 2014 from Dr Faigenbaum, her General Practitioner (T10 at 84-94).
On 6 February 2014, the Applicant attended a Job Capacity Assessment (“JCA”) (T11 at 95).
On 26 February 2014, the Applicant submitted further documentation in support of her claim.
On 16 April 2014, a Centrelink officer rejected the Applicant’s DSP Claim (the “Original Decision”) on the basis that she did not have an impairment rating of at least 20 points under the Social Security (Tables for the Assessment of Work-Related Impairment for Disability) Determination 2011 (the “Impairment Tables”) (T13 at 199).
On 16 April 2014, the applicant sought an internal review of the Original Decision. The Applicant provided further medical evidence in support of her claim.
On 24 April 2014, a subsequent JCA was conducted (T15 at 203).
On 23 May 2014, an ARO affirmed the Original Decision (the “ARO Decision”) (T16 at 211).
The ARO found that the Applicant’s bilateral epicondylitis and her anxiety and depression were “fully diagnosed, fully treated and fully stabilised”. The ARO determined that the Applicant’s bilateral epicondylitis should be assigned 5 points under Table 2 (Upper Limb Function) of the Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 (the “Impairment Tables”) and that her anxiety and depression should be assigned 5 points under Table 5 (Mental Health Function) of the Impairment Tables. The ARO determined that the Applicant’s supraventricular tachycardia had minimal functional impact and did not attract any impairment rating. The ARO also found that the Applicant did not have a continuing inability to work pursuant to section 94(2) of the Social Security Act 1991 (the “Act”).
On 23 May 2014, The Applicant lodged an application with the SSAT for review of the ARO Decision (T17 at 216).
On 24 July 2014, the SSAT affirmed the ARO Decision (the “SSAT Decision”) (T2 at 9-17).
The SSAT found that during the relevant period (discussed below), the Applicant suffered from depression with anxiety, bilateral epicondylitis and intermittent SVT.
The SSAT found that on the basis of the evidence before it, the Applicant suffered from impairments resulting from these conditions.
The SSAT determined that the Applicant’s depression with anxiety should be assigned 5 points under the Table 5 (Mental Health Function) of the Impairment Tables, her bilateral epicondylitis should be assigned 10 points under Table 2 (Upper Limb Function) and her intermittent SVT should be assigned 0 points.
The SSAT found that the Applicant’s impairment rating did not generate 20 points from the Impairment Tables.
As the SSAT found that the Applicant’s impairment rating was less than 20 points under the Impairment Tables, it did consider whether the Applicant had a continuing inability to work.
In the circumstances, the Applicant was denied DSP as she had not satisfied the requirements of the Act.
On 22 August 2014, the Applicant applied to the Administrative Appeals Tribunal (“the Tribunal”) for a review of the SSAT Decision (T1 at 1).
THE RELEVANT PERIOD
The Social Security (Administration) Act 1999 (the “Administration Act”) provides that the start-day for a qualified DSP claimant is the day on which the claim is made: Schedule 2. This means that qualification for DSP and any impairment ratings must be determined as at the date of claim.
In Re Fanning and Secretary, Department of Social Services [2014] AATA 447, Deputy President Handley said at [31]–[33]:
[31] In my view, in the case of DSP, it is implicit in clause 4 of Schedule 2 of the Administration Act that an applicant must be qualified for DSP on the date of claim or within the period of 13 weeks following. Evidence, such as medical reports, that come into being after the relevant period may still be relevant, but only in so far as they are referable to the applicant's condition during the relevant period.
[32] This is supported by the judgment of Gyles J in Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404. Gyles J stated at [1] that as an applicant's entitlement to DSP must be considered at the date of claim and within the 13 week period, "Any subsequent change in her health is irrelevant to the questions which arise in this proceeding except insofar as it may cast light on the position at the relevant time".
[33] … The legislation requires the Tribunal to consider the treatment that has taken place, and was intended to take place, and the likely effect of that treatment, at the time of the claim and in the 13 weeks thereafter. For that reason, evidence of treatment, and the efficacy of that treatment, after the relevant period is not directly relevant to the Tribunal's decision.
The Relevant Period in relation to whether the Applicant qualifies for DSP is 13 January 2014 to 14 April 2014 (13 weeks after the Applicant filed her claim for DSP) (the “Relevant Period”).
ISSUES
The primary issue for the Tribunal is whether the Applicant satisfies the statutory criteria for DSP under section 94(1) of the Act at any time between 13 January 2014 and 14 April 2014.
In particular, the Tribunal must determine whether, at any time during this period:
a) The Applicant had any physical, intellectual or psychiatric impairments for the purposes of section 94(1) of the Act; and
b) If so, whether any such impairments had a combined rating of at least 20 points under the Impairment Tables for the purposes of section 94(1)(b) of the Act; and
c) If so, whether the Applicant had a continuing inability to work for the purposes of section 94(1)(c) of the Act because of any such impairments.
LEGISLATION
Section 94 of the Act sets out the qualifications for disability support pension. Relevantly, it provides:
SOCIAL SECURITY ACT 1991 - SECT 94
Qualification for disability support pension
(1)     A person is qualified for disability support pension if:
(a)     the person has a physical, intellectual or psychiatric impairment; and
(b)the person's impairment is of 20 points or more under the Impairment Tables; and
(c)     one of the following applies:
(i)    the person has a continuing inability to work;
….
Continuing inability to work
(2)A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(aa)in a case where the person's impairment is not a severe impairment within the meaning of subsection (3B) or the person is a reviewed 2008-2011 DSP starter who has had an opportunity to participate in a program of support--the person has actively participated in a program of support within the meaning of subsection (3C), and the program of support was wholly or partly funded by the Commonwealth; and
(a)in all cases--the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and
(b)in all cases--either:
(i)    the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or
(ii)   if the impairment does not prevent the person from undertaking a training activity--such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.
Note:For work see subsection (5).
(3)In deciding whether or not a person has a continuing inability to work because of an impairment, the Secretary is not to have regard to:
(a)the availability to the person of a training activity; or
(b)the availability to the person of work in the person's locally accessible labour market.
Severe impairment
(3B)A person's impairment is a severe impairment if the person's impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table.
Example 1: A person's impairment is of 30 points under the Impairment Tables, made up of 20 points under one Impairment Table and 10 points under another Impairment Table. The person has a severe impairment.
Example 2: A person's impairment is of 40 points under the Impairment Tables, made up of 20 points under one Impairment Table and 20 points under another Impairment Table. The person has a severe impairment.
Example 3: A person's impairment is of 20 points under the Impairment Tables, made up of 10 points each under 2 separate Impairment Tables. The person does not have a severe impairment.
Active participation in a program of support
(3C)A person has actively participated in a program of support if the person has satisfied the requirements specified in a legislative instrument made by the Minister for the purposes of this subsection.
(3D)The Secretary must comply with any guidelines in force under subsection (3E) in deciding whether the Secretary is satisfied as mentioned in paragraph (2)(aa).
(3E)The Minister may, by legislative instrument, make guidelines for the purposes of subsection (3D).
Doing work independently of a program of support
(4)A person is treated as doing work independently of a program of support if the Secretary is satisfied that to do the work the person:
(a)is unlikely to need a program of support; or
(b)is likely to need a program of support provided occasionally; or
(c)is likely to need a program of support that is not ongoing.
Other definitions
(5)In this section:
"program of support" means a program that:
(a)     is designed to assist persons to prepare for, find or maintain work; and
(b)     either:
(i) is funded (wholly or partly) by the Commonwealth; or
(ii) is of a type that the Secretary considers is similar to a program that is designed to assist persons to prepare for, find or maintain work and that is funded (wholly or partly) by the Commonwealth.
"training activity" means one or more of the following activities, whether or not the activity is designed specifically for people with physical, intellectual or psychiatric impairments:
(a)     education;
(b)     pre-vocational training;
(c)     vocational training;
(d)     vocational rehabilitation;
(e)     work-related training (including on-the-job training).
"work" means work:
(a)that is for at least 15 hours per week on wages that are at or above the relevant minimum wage; and
(b)that exists in Australia, even if not within the person's locally accessible labour market.
THE SSAT DECISION
The SSAT provided a very clear overview of the evidence before it. That decision thus merits repeating here.
To the extent that evidence before the SSAT might now identify the Applicant in these written reasons, the Tribunal has edited as needed.
The SSAT found as follows in relation to the Applicant’s impairments:
Issue One: Whether [the Applicant] Has Any Impairments?
20.…. paragraph 94(1)(a) of the Act provides that the first qualification for disability support pension is that a person has a physical, intellectual or psychiatric impairment.
21.The Tribunal reviewed the following medical and related reports:
...
22.The information in the above reports verifies that [the Applicant] is suffering from depression with anxiety, bilateral epicondylitis and intermittent supraventricular tachycardia (SVT).
23.On the basis of this evidence the Tribunal finds that [the Applicant] suffers from impairments resulting from these conditions.
24.Given that [the Applicant] suffers from these impairments, she satisfies paragraph 94(1)(a) of the Act.
Issue Two: Whether [the Applicant’s] Impairments Rate 20 Points or More Under The Impairment Tables?
25.As stated above, paragraph 94(1)(b) of the Act provides that the second qualification for disability support pension is that the person’s impairments rate 20 points or more under the Impairment Tables.
26.The Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 contains the Impairment Tables and the rules for applying the Impairment Tables when deciding if a person is qualified for disability support pension.
27.The impairment Tables are function based rather than diagnosis based and describe functional activities, abilities, symptoms and limitations and are designed to assign ratings to determine the level of functional impact of impairment and not to assess conditions. Impairment is defined to mean a loss of functional capacity affecting a person’s ability to work resulting from the person’s condition.
28.The Impairment Tables may only be applied to a person’s impairment after the person’s medical history, in relation to the condition causing the impairment, has been considered.
29.An impairment rating can only be assigned to a condition if the condition is permanent for the purposes of disability support pension, that is, that the condition has been fully diagnosed, fully treated and is fully stabilised and there is unlikely to be any significant functional improvement in the condition within the next 2 years enabling the person to undertake work,
30.The Tribunal considered the abovementioned reports and [the Applicant’s] evidence to determine whether her impairments are permanent and, if so, whether they rate any points under the Impairment Tables.
Condition 1 - Depression with anxiety
31.      [The Applicant] told the Tribunal:
a)She first experienced the symptoms of depression in 1991 at a time when her marriage was breaking down. She had a young child and simply couldn’t cope. She felt suicidal and took an overdose of tablets.
b)She was admitted to hospital as a voluntary patient in the psychiatric unit, where she remained for six weeks. She was put on several medications. After discharge she remained under psychiatric care as an out-patient for two to three years.
c)After about five years her symptoms had resolved and she ceased her medication.
d)In 1999 she was diagnosed as having a malignant melanoma, with poor prognosis. The diagnosis was subsequently found to be incorrect. She was very upset by this episode and became anxious and depressed again. She had further psychiatric care and resumed anti-depressant medication for a further two years or so.
e)In 2009 her brother … was injured and had some brain damage. This caused her great distress and her symptoms resumed. She had remarried …. and her new husband was supportive. She was treated with antidepressant medication by her GP for a short time.
(f)In 2010 she began to experience heart palpitations, which added to her anxieties and around the same time she began to experience pain in her right arm. The arm pain eventually meant she had to stop work and has become a dominant feature of her life.
(g)Prior to the arm problem she was working full-time at … Bank. She was a perfectionist and worked hard. Much of her work time was spent at a keyboard. She had been there for seven years and was well-regarded with prospects of promotion. All that has now vanished.
h)She is now in almost constant pain. This gets her down and greatly restricts what she can do. Her whole life has changed. She sleeps poorly unless she takes Ativan tablets (one, sometimes two) at night. She also takes an anti-depressant (Efexor) from her GP.
i)She was referred to a clinical psychologist, Sharon Elsley, in 2012 and sees her on a regular basis, usually monthly or more frequently when necessary.
j)She and her husband live in rented accommodation. She is able to do light housework and cooking, but her husband has to help with the heavier tasks. She drives an automatic car and does light shopping on her own. Her husband has a full-time … job but is able to help with bigger shopping loads.
k)They have a small number of close friends who they see perhaps weekly for social visits. She has no real hobbies.
l)At the suggestion of the psychologist she applied to, and was accepted by, …. University to do post-graduate studies …. This involves attending a weekly seminar plus completion of assignments at home. She finds this a fair struggle but gets by with the help of a close friend who is also studying.
m)She is very close to her family and gets more distressed than most when there are problems. …..
n)She now has a … granddaughter. However looking after her is difficult because of the arm pain. She is scared she might drop the baby, which distresses her greatly.
32.The Tribunal noted detailed reports from two psychiatrists and a clinical psychologist. All confirm the diagnosis of a long history of episodic depression, currently aggravated by chronic pain and restricted use of her right (dominant) arm.
33.The Tribunal believes that, for the purposes of DSP, this problem can be considered fully diagnosed, treated and stabilised and can be considered for an impairment rating under Impairment Table 5 - Mental Health Function.
34.Based on [the Applicant’s] stated ability to shop, drive, perform household duties, have close friendships and undertake tertiary educational studies, the Tribunal considers there to be a mild impairment to mental health function, generating 5 points under Table 5 of the Impairment Tables (Appendix 1).
Condition 2 - bilateral epicondylitis
35.      [The Applicant] told the Tribunal:
·In 2010 she was working full time at the … Bank in customer service. She worked ‘too hard’ with much of her 40 hour week spent at a computer keyboard.
·     She began to experience pain in her right arm. She is right handed. The pain was often there when she woke up and moved down to her hand.
·     She saw her GP who told her it was tennis elbow - a common problem and nothing to worry about. No investigations were undertaken and no treatment suggested.
·     She put up with the pain, hoping it would go away. However it gradually got worse and started to affect her ability to do her job as thoroughly as before.
·     A new manager noticed this and insisted she go and get a second opinion. As a result she was diagnosed with epicondylitis. It was considered a work-related condition and she was treated under the workers compensation scheme.
·   She has had a vast array of treatments, including physiotherapy, steroid injections and exercise programmes. She has been referred to a pain clinic, a rheumatologist and a hand specialist, together with a number of other healthcare facilities. No treatment has helped. She currently takes Nurofen tablets when needed and uses a pain-relieving cream.
·     She feels that she can do ‘most things’ but knows that she will suffer great pain if she tries. She has adjusted her life accordingly. She can carry light loads (carton of milk, bowl of fruit) but won’t risk heavier things. If she uses her left arm too much she gets similar symptoms on that side. She does light housework and cooking but needs her husband to help with heavier duties.
·     She can do things above head height for a short period of time. She is able to dress herself. She used to have long hair but washing and drying it became very difficult so she now has it cut shorter.
·     She manages a knife and fork, but using a computer keyboard and mouse is very hard. She uses a voice-recognition system for activities that require writing.
·     In … the insurers rejected her workers compensation claim. This resulted in an unpleasant legal dispute, which has now been settled. This exacerbated her emotional problems. For a while the bank continued her employment with alternative duties, but that has now ceased.
·     She relies heavily on friends and family for support.
36.The Tribunal noted the large number of reports from a wide variety of health professionals involved in treating this problem and is satisfied that all reasonable treatment options have been tried, with little or no success.
37.The Tribunal considers this problem to have a moderate functional impact on activities using the hands or arms. It generates 10 points from Impairment Table 1 - upper limb function (Appendix 2).
Condition 3 - intermittent SVT
38.      [The Applicant] told the Tribunal:
·   In 2009 …, she noticed she was having episodes of rapid heartbeat. On several occasions she attended emergency departments and required electric shock cardioversion and drugs via drip.
·     Eventually she came under the care of a specialist cardiologist, Dr Paul, and was diagnosed supraventricular tachycardia. She underwent ablation therapy which seemed to solve the problem.
·     In June 2013 the problem flared up again, possibly related to her legal dispute over the workers compensation claim. She had further ablation therapy.
·     She is currently symptom free but, like most people, finds that her heart beats faster when she feels anxious. She has been told not to drive her car if her pulse is greater than 100. She does not monitor her pulse rate routinely and tends to ignore the problem.
·     She has been told that she may require a pacemaker if the problem flares up.
39.The Tribunal considers that this condition has no significant functional impact and does not generate points from the Impairment Tables.
Other issues.
40.The Tribunal noted that, in the certificate he provided on the day before the hearing, Dr Faigenbaum referred to problems of chronic pain in the lower back and feet. These problems had not been identified in the initial DSP claim form completed by [the Applicant] or in the initial medical report for DSP completed by Dr Faigenbaum.
41.The Tribunal was not able to consider these matters as relevant at the time of the claim being lodged in January 2014.
Summary
42.[The Applicant’s] impairments attract 15 points under the Impairment Tables, which is less than the required 20 points. This means she does not satisfy paragraph 94(1)(b) of the Act.
EVIDENCE

The Applicant has an extensive medical history. At the hearing, the Applicant was unrepresented. She was, however, able to provide verbal evidence and she provided the Tribunal with lengthy and detailed written submissions.
A one day hearing was held at the Tribunal on 10 March 2015. Further hearings were held by telephone on 3 July 2015 and 22 July 2015.
The Tribunal was provided with the following evidence:
·     A set of T-Documents numbered T1 to T20, comprising 240 pages;
·     A detailed written statement from the Applicant dated 17 October 2014;
·     A detailed Statement of Facts, Issues and Contentions from the Secretary, Department of Social Services, dated 4 March 2015;
·     A detailed written statement from the Applicant dated 28 April 2015; and
·     A detailed written statement from the Applicant dated 23 June 2015.
On 10 March 2015, the Tribunal ordered that the Applicant file any further evidence she intended to rely on by 21 April 2015.
The Applicant sought an extension of time, which was granted. On 30 April 2015, Applicant filed 132 pages of evidence including further submissions and recent medical reports.
In response, the Secretary filed written Post Hearing Submissions dated 2 July 2015.
There was a considerable amount of documentary medical evidence presented to the Tribunal. Some of this was presented after the initial hearing before the Tribunal. To the extent that this evidence is relevant, keeping in mind the Relevant Period, the Tribunal notes it below.
The Tribunal has considered the following medical evidence. To the extent that this evidence might now identify the Applicant in these written reasons, the Tribunal has edited as needed.
Report by Dr Sanjay Nadkarni, dated 22 November 2011 (T12 at 103)
An x-ray and ultrasound was performed by Dr Nadkarni on the Applicant’s right elbow. It found as follows in relation to the Applicant’s right lateral epicondylitis:
EXAM: X-RAY EIGHT ELBOW
Clinical History: Pain extending round the forearm. Lateral epicondylitis.
Findings: Elbow joint is held in alignment No fracture or bone destruction. No erosive changes. No evidence of a significant elbow joint effusion.
EXAM: ULTRASOUND RIGHT ELBOW
Findings: There is oedema involving the common extensor tendons just proximal to its attachment site with some increased vascularity within this region of oedema suggestive of a tendonosis. There is also a small focal area of lower echogenicity measuring 6 x 3 mm which may represent a healing tear. The remainder of the soft tissues adjacent to the elbow are intact.
COMMENT: Features are suggestive of a common extensor tendonopathy (lateral epicondylitis) with a possible small healing tear present within the deep tendon fibres just proximal to the attachment site.
Letter by David Lilly, Physiotherapist, dated 6 December 2011 (T12 at 104)
In relation to the Applicant’s right elbow, Dr Lilly writes as follows:
Further to my previous letter, I am writing to follow up with my review and recommendations given [the Applicant’s] progress to date of the lateral epicondylagia (tennis elbow) injury of her (R) forearm.
At this stage we have braced her upper limb for compression and support from her forearm above the elbow to below her wrist, leaving her fingers free to move. This is to minimise load at the site of the injury. After almost 2 weeks of complete rest, bracing and twice weekly treatments in clinic, only her muscular tightness has started to decrease. The irritability at the site of the injury (where the muscle and tendon joins to bone) and at the lateral elbow joint as a whole remains quite marked.
For the purposes of specifying the origin of the injury, I have asked [the Applicant[ what her work duties entail as well as what her leisure activities include. Given that she is not involved in any upper limb intensive sport or pastime it appears obvious that the typing duties which she describes as frequent, repeated (all working day) and fast paced (given her high touch typing word count) as the cause of the injury. There was no sudden onset of severe pain or trauma relating to the onset of the injury as is typical of an injury of this type in this area — it is typically caused by repetitive strain and stress caused by frequent and repeated tasks so therefore has a slow, insidious onset
I advised her to remain in the braces for at least a further 2-4 weeks depending on her progress and continue resting the arm for the majority of this time. After which her irritability and injury will settle further and we can begin strengthening the upper limb so that she may use it for work — this will take a further 6-12 weeks before she can attempt to return to her normal duties and even still she may not at that time be ready or able to perform these tasks without re-aggravating her injury.
In terms of return-to-work, her current duties would surely see the immediate return of symptoms. Optimally she should have a further 2 weeks off as this would guarantee rest. If she is to return to light duties her (R) arm needs to remain relatively rested. Any typing, repetitive work or placing of load on the (R) arm will at best, maintain her injury as it is, and worse still probably put her back in terms of her progress and potential return to normal duties. Also going back to work duties (even light duties) which require typing/manual tasks will force her to use her (L) hand more-so to compensate for the (R) hand’s inability, and of course put it at more risk of developing something similar on that side.
Report by Dr Heino Kaardi, dated 18 January 2012 (T12 at 105)
An ultrasound was performed on the Applicant’s elbow on 17 January 2012. It found as follows:
EXAM: ULTRASOUND LEFT ELBOW
Clinical History: Lateral epicondylitis.
Findings: Hypoechoic changes are present at the common extensor tendon origin at the left lateral epicondyle consistent with localised tendonitis or small partial thickness tears.
The common flexor tendon origin and triceps insertion appear intact. No joint effusion or bursal collection is seen.
COMMENT: Changes of lateral epicondylitis.
Exercise Report by Bree Atkinson, Exercise Physiologist, dated 2 March 2012 (T12 at 106-109)
On 27 February 2012, the Applicant underwent a rehabilitation exercise programme. On 2 March 2012, Ms Bree Atkinson reported as follows:
Thank you for referring [the Applicant] to Guardian Exercise Rehabilitation on 27 February 2012 for a specific and structured exercise programme to:
·Assist with management of her work-related elbow injury
·Improve her functional fitness to assist with her return to work
We met with [the Applicant] at … today to conduct a pre-exercise assessment The following Is summary of findings.
History of Injury:
·[The Applicant] advised that her injury has been progressive and ongoing
·She described experiencing a constant pain in her right elbow, which is flared up by constant typing and writing at work
·[The Applicant] reported that she experiences morning pain where she is unable to straighten her right arm
Investigations:
·[The Applicant] was referred to Radiology for an Ultrasound on 16 November 2011 and again on 21 February 2012
·To our understanding the first Ultrasound revealed right Lateral Epicondylitis
·[The Applicant] is currently awaiting results of her recent Ultrasound
·We understand she has also been diagnosed with left Lateral Epicondylitis
Treatment:
·[The Applicant] received Physiotherapy treatment three times per week for three weeks in December 2011, where she underwent the following modalities:
oUltrasound
oMassage
oTaping
·She reported that minimal exercises were prescribed by the Physiotherapist She has reported no noticeable significant benefit following Physiotherapy sessions
·To our understanding, Physiotherapy treatment-ceased after three weeks in December 2011
·[The Applicant] reported wearing a brace on her right elbow to help with typing at work
·A cortisone injection was administered in her right lateral elbow on 18 January 2012
·[The Applicant] reported taking anti-inflammatories only when necessary to relieve pain
·She reported taking Mobic and Endep to help with sleep
Pre-Injury Work Status:
·[The Applicant’s] pre-injury work duties as a Customer Service/Savings Specialist at the Commonwealth Bank involved:
oUp to 38 hours per week, 5 days per week
oTasks included computer based duties which involve typing and writing
Return to Work Goal:
·We understand [the Applicant’s] return to work goal to be to return to her pre-injury role
Current Work Status & Medical Restrictions:
·[The Applicant] is currently working 5 hours per day, 5 days per week
·She advised that she has the following restrictions:
oLimit use of her upper body
oNo typing
Current Symptoms:
·[The Applicant’s] current symptoms consist of:
oBilateral elbow tenderness upon palpation
oBilateral elbow dull, tight, throbbing pain (less frequent in the left elbow)
oTightness in both Biceps
oConstant tight/tingling pain in her right index finger
oTightening pain in her left thumb and wist
oShe advised that the pain is constant, with symptoms worse with activity
·With reference to a Visual Analogue Pain Scale, [the Applicant] described a maximal) pain level of 7-8 out of 10 and an average pain level of 5-6 out of 10
Current Functional Ability:
·We assessed [the Applicant’s] functional ability with reference to a functional scale (0 to 10 scale with 0 equating to an inability to perform said activity and 10 being an ability to perform the activity at a pre-injury level)
·[The Applicant] currently has difficulty with the following activities
oLifting arms to wash hair (2-3/10)
oDressing (1-2/10)
oTyping/writing (2-3/10)
oDriving an automatic car (R-1-2/10, L-4/10)
Patient Goals:
·After discussions with [the Applicant] we identified her long term goals as:
oReturn to full working capacity
oComfortably complete ADLs and household chores
oImprove energy levels through exercise
Exercise Programme/Recommendations:
·[The Applicant] presents with ongoing elbow pain combined with poor upper limb endurance and strength
·Exercise intervention should help to address these issues and reduce stress applied to the elbows with repetitive and sustained activities required of her at work
·We will also provide her with self-management techniques to assist with symptom management, both at work and with day to day tasks
·With respect to the above information we plan on developing a gym programme with [the Applicant]. Objectives of the programme are:
oRelieve tension in the forearms and wrists to assist with symptom management
oImprove forearm and upper arm strength, in a graded manner
oImprove functional abilities with activities that involve fine dexterity, lifting, carrying, gripping
·We also recommend a supportive elbow brace for [the Applicant] to wear which will assist with her exercise programme
Exercise Plan:
·We are currently awaiting approval of our programme by the … Bank. Once this has been approved, we plan on providing [the Applicant] with a 3 month membership to Terry Tyzack Inglewood and will commence development and supervision of her gym programme. We anticipate reviewing her progress on a weekly basis initially then reducing to fortnightly.
Letter from Dr Jack Edelman, dated 12 April 2012 (T12 at 111)
This letter dated 12 April 2012 is addressed to Dr Chandra, and reads:
I note she works for the … Bank. She is a bank officer doing accounts and things of this nature and types all day long. She did notice somewhere around mid 2010 her right elbow became sore mainly with stiffness in the morning but also during the day. By mid 2011 any amount of increased typing produced a lot of forearm aching and discomfort and also stiffness in her fingers. By mid November it was made a workers compensatable problem and it was noticed that she did have quite significant right lateral epicondylitis.
She had two months off work but did not really improve and even her left elbow began to trouble her. She has been at work since early February on limited duties but she still has significant symptoms in her right elbow down into the forearm and to a lesser extent in her left elbow down into the forearm. Most activities are hard for her to do.
She was indeed markedly tender over the right lateral epicondylar area and gripping produced pain down into the forearm. The same occurred with the left elbow but to a lesser extent.
The ultrasounds do confirm common extensor tendinopathy. I am sure that is what we have with quite significant right lateral epicondylitis and to a lesser extent left, with consequent forearm pain and discomfort.
Injections have not helped however I personally believe that she should keep away from any form of typing, keyboarding or anything of this nature. She tells me that she is now being changed to another branch doing mentoring. I would suggest that if the bank can do this for a solid four months without any keying or typing they may well be able to rehabilitate her slowly back into a keying position. However I very much doubt that she will get back to full time keying.
There is not any other major definitive form of treatment. Autologous blood injections have been tried and occasionally this can help. Dr Eamon Koh at Envision is doing these but I do not have any personal experience of this.
Letter from Dr Heino Kaard, General Practitioner, dated 8 May 2012 (T12 at 113)
The letter states as follows:
EXAM: ULTRASOUND BOTH WRISTS
Clinical History: Pain in both thumbs and wrists. ?tenosynovitis.
Findings: At the left wrist a small amount of fluid is present within the APL/EPB and ECR tendon sheaths. The tendons themselves appear intact, no tear or significant swelling is seen.
No other abnormality is seen at the left wrist.
No evidence of tenosynovitis at the right wrist.
No mass or ganglion identified.
COMMENT: A little fluid within the lateral extensor tendon sheath at the left wrist. This may indicate tenosynovitis.
Letter from Joelene Colliton, Occupational Therapist, October 2012 (T12 at 114)
This letter, also in relation to the Applicant’s elbow, states as follows:
Thank you for referring [the Applicant] to Hand Works Occupational Therapy. She has been seen in our Duncraig rooms, presenting with almost 2 years of lateral epicondylitis symptoms. Ultrasound examination confirms tenosynovitis of the common extensor tendon (CET) bilaterally with partial tears on the right. [The Applicant] reports having had corticosteroid injections in the past, with minimal effect, and had a CSI to the right radial head yesterday, which she complains has increased her pain.
Treatment Plan:
Given the chronicity of [the Applicant’s] condition, and the lack of orthoses-enforced-rest to date, l have fabricated bilateral wrist immobilisation orthoses to rest and unload the CET’s. I have encouraged [the Applicant] to wear these full time, for a period of up to 6 weeks, during which l plan to introduce epiclasp counterforce braces for additional/alternative support.
I have educated [the Applicant] about the condition, and on activities that are likely to contribute to injury progression. If there is little improvement over the next 6 weeks, I would recommend [the Applicant] be referred to Dr Duncan Sullivan (Sports Physician at Glengarry Sports Medicine) for an Autologous Blood Injection, which have proven useful in the treatment of chronic lateral epicondylitis.
I plan to review [the Applicant] next week to fit the epiclasps and to provide information and education about activity recommendations/modifications.
Letter from Thuy Tran, Occupational Therapist, October 2012 (T12 at 115)
This letter, also in relation to the Applicant’s elbow, reads as follows:
Thank you again for referring [the Applicant] to Hand Works Occupational Therapy. She has been seen twice a week in our Duncraig rooms for the past four weeks. At her latest review on the 14^th December, she presented with the following:
Assessment Findings:
Pain
·7/10 pain on average in the past week
Work
·Working light duties, and reduced hours
Function
·Disabilities of the Arm, Shoulder and Hand Assessment 66% (with 100% being total disability)
·Patient- Rated Tennis Elbow Evaluation Assessment: 68.5 (Where 0 is best score and 100 is Worst score)
Treatment Plan
We have trialled seven InterX treatments in therapy for the past four weeks, however [the Applicant] has reported no changes in symptomology. Given the chronic nature of The Applicant’s condition, and her non-response to several conservative treatment methods, I strongly recommend The Applicant be referred to a specialist (Eg. Dr Duncan Sullivan -- Sports Physician at Glengarry Sports Medicine) for an Autologous Blood Injection, which have been proven to be useful for treatment of chronic Lateral Epicondylitis. I have attached in this letter some information about this type of treatment for your interest.
Letter from Dr Michael Ponchard, Clinical Exercise Physiologist, 26 February 2013 (T12 at 116)
The letter reads as follows:
[The Applicant[ has completed the first half of her pain management and rehabilitation program. Although she is demonstrating good commitment she still contends with considerable pain. She has been prescribed a range of exercises to complete at home after her cycling. Comcare declined finding for the bike, however the Applicant leased a recumbent bike as it is considered an essential part of her long term management. She has been cycling 7 minutes at 60RPM at Level 2, 3-4 times per day demonstrating her good effort.
[The Applicant] stated that her right lateral epicondylitis is still the main problem in terms of pain. Ultrasound report confirmed extensor tendinopathy. [The Applicant] has reduced the time she wears her elbow and forearm braces as muscle mass usually decreases with their prolonged use. She has been encouraged to use them only during more demanding activities.
At present, [the Applicant] is not working as there is no available work at the … Bank. She is taking advantage of the time available to focus on her rehab. [The Applicant] completes her exercises 3-4 times per day and understands that results to a large extent will come for her commitment and adherence.
Massage therapy is contributing to [the Applicant’s] rehabilitation by desensitizing her musculature. She reports that massage is somewhat painful, however the outcomes are positive for some time after. This tends to indicate that muscular components are playing some role in her pain experience and that massage should continue.
[The Applicant] still contends with tenderness and tightness in the extensor muscles of her right forearm and can experience pins and needles in the right index finger. She also experiences a throbbing and burning sensation in her right arm. [The Applicant] also reported discomfort in her neck and shoulders and that she has difficulty completing some basic daily activities.
At present [the Applicant] is contending with a few outside issues which are running some interference to her progress, but she is determined to work her way through our program as she understands the rationale. I have encouraged her to continue through to week 10.
Letter from Dr Michael Ponchard, Clinical Exercise Physiologist, 19 March 2013 (T12 at 117)
This letter, also in relation to the Applicant’s elbow, provides as follows:
[The Applicant] recently completed the first phase of our rehabilitation program. She has been attending our rooms in Subiaco and learning the pathway out of chronic pain. She has leased a recumbent bike, been receiving massage therapy and learning her prescribed exercises. She has maintained a high commitment to our range of strategies and has derived some benefit, although we still have a way to go before achieving her desired outcomes. [The Applicant] stated that her right lateral epicondylitis is still the main problem in terms of pain.
The main trouble at present is the outside influences associated with her work and insurance claim. She was recently reviewed by a Medical Specialist and the associated report has caused [the Applicant] some concern and further frustration. [The Applicant] has a clearly demonstrated history of high work performance at the … Bank and would like to be able to return to work. She regularly completed long hours which is not associated with someone who does not enjoy their work Unfortunately, the associated tasks if completed for a substantial time period would cause her considerable aggravation at present. Even though [the Applicant] can progressively warm up and complete a range of tasks, it is not until she cools down several hours later that she experiences her symptoms. She contends with swelling and pins and needles in her fingers, even after writing or holding a phone for a period of time. She now has trouble doing a large range of normal daily tasks at home.
It took some time in the early days after her injury for a clear diagnosis and because [the Applicant] kept working away she progressively moved into a chronic pain scenario. Her medical issues progressed to decreased functional capacity in her upper extremities and then onto psychological frustration. This cycle has continued to progress, although the Applicant speaks positively about her recent experience at Cambridge Pain Management. She is more aware that she should not be wearing braces and splints all day as this causes further deterioration of her musculature. She appreciates that she needs to maintain her aerobic fitness to help manage her pain from a physiological and psychological viewpoint. She has learnt her specific exercises and does them after she rides her bike. She understands that passive mono-therapies will not deliver her expected rehabilitation, objectives. She has been cycling 7 minutes at 60RPM at Levels 2-3, 3-4 times per day demonstrating her good effort
Massage therapy is desensitizing [the Applicant’s] musculature. She reports that massage is somewhat painful, however the outcomes are positive for some time after. This tends to indicate that muscular components are still playing some role in her pain experience and that massage should continue. I will apply for 10, one hour massages with Comcare. A further report will be forwarded at the end of her second phase program if funding is provided by Comcare. They should also reconsider leasing the recumbent bike for [the Applicant], as she cannot continue to fund the lease of the bike. Take the bike away and we will probably not achieve positive results in the near future.
Letter from Dr Steven Clarke, Occupational Physician, 13 September 2013 (T12 at 118 to 125)

In this detailed letter, Dr Clarke states as follows:
I reviewed your client … in my rooms today at your request.
She attended in relation to her chronic right arm pain that occurred In the setting of her working as a customer service specialist and a savings specialist at the … Bank ….
To briefly restate her history, she related that in calendar year 2010 she began to wake in the mornings with a stiff and painful right elbow and forearm. She continued working in her normal capacity and described herself through those early times as “pushing it", that is to say, teat she continued working despite her symptoms.
Her duties at the … branch involved her typing for most of the working day she said. She would attend to clients' needs such as opening and servicing various accounts, accessing bank information and records and similar. She describes herself as a typist of 65 words per minute and all the data entry needed to be keyed in.
I gather she initially thought little of her symptoms and kept working and at some stage she told her manager and they discussed the symptoms and she consulted her general practitioner and was diagnosed as suffering from tennis elbow on the right side. I gather no specific treatment was initially prescribed.
Sometime later in perhaps October 2011 there was a new manager at the branch and she began to do extra work, including overtime, and she reported to me that she was working often from 7.00am through to 7.00pm. Sometime after that her workmates noted that she was "avoiding" the degree of typing that she had previously undertaken due to her symptoms. She reports of that period that her fellow workers were supportive and encouraged her to seek a second opinion in relation to her symptoms and consequently she underwent an ultrasound examination, which confirmed the diagnosis that had earlier been given, with findings consistent with epicondylitis. She was referred for physiotherapy and then later, she was referred to see both Mr Peter Honey and Dr Jack Edelman, orthopaedic surgeon and rheumatologist respectively, both of whose letters l have read.
Mr Hooey contemplated posterior interosseous nerve compression but this diagnosis was not supported by the findings apparently demonstrated on a later ultrasound, the results of which I have not seen.
Both Mr Hooey and Dr Edelman, in their respective letters, concur that the principal diagnosis was right lateral epicondyiitis and that diagnosis seems sound based on the supporting evidence of the ultrasound findings.
Dr Edelman, in his letter of 12 April 2012, noted the lack of response to injection treatment she had received by that time and commented that she should "keep away from any form of typing, keyboarding or anything of that nature”. Further in his letter, he makes the comment that "l very much doubt that she will get back to fulltime keying". He also made a suggestion about the possibility of an autologous blood injection but I gather this has never been undertaken.
Without going into great detail about the various treatments she has undertaken, I note that over the period 2011 to 2012 she tried physiotherapy, anti-inflammatory medications, two cortisone injections, splints, interferential treatment and some alternative treatments undertaken in … and her comment in relation to all those treatments is that they have been of no help whatsoever in terms of her ongoing symptoms.
In December 2012 I note that she was referred to Cambridge Pain Management and she commenced in a multidisciplinary pain management programme at that time and as I understand it, this continued through to February or March of 2013 when I understand funding for further participation was declined by the insurer.
In relation to that pain management programme, the Applicant did speak positively indicating that she found the multidisciplinary approach to understanding her pain experience was "useful", indeed she commented that it was the only treatment that had proven to be of any beneficial effect to her.
The current situation, in terms of her symptoms, is that she continues to suffer from right arm pain in the region of the elbow laterally which radiates to her forearm and at times into her right index finger, which she reports on occasions swells. Her symptoms fluctuate in proportion to the amount of repetitive activity that she is undertaking and frequently her symptoms develop after the activity rather than occur at the time. She now takes Nurofen on an as required basis, not very many perhaps three a week in relation to her arm symptoms and she continues to do self exercise and stretches and attends a physiotherapist and has recently commenced some theraband type exercise treatments.
She makes the point that the pain in her right forearm (and to a lesser extent left) is not as great as when she "pushes herself”.
In relation to her work, she has not worked since January 2013. As I understand it she has been informed by her employer that all the available positions which she could undertake at the ... Bank involve lots of typing and computer work and that no alternative positions are available to suit her restrictions.
She is not being paid wages from her employer and I understand is currently in receipt of the “Newstart Incapacitated" Commonwealth Government allowance. She describes distress at being out of the workplace and continues to see a psychologist every two weeks.
Whilst I am neither a psychiatrist nor a psychologist, in this regard I do note the comments from this year by the psychiatrist, Dr Gemma Edward-Smith and also psychologist, Sharon Elsley.
Both those practitioners have written extensively on the psychological and psychiatric aspects of this worker's condition, particularly in relation to Dr Edward-Smith’s diagnosis of Major Depressive Episode - Recurrent and I note her comments on Page 9 in the answer to Question 6 where she notes that the current episode of depression "does appear to be aetiologicaily linked to her ongoing physical symptoms of pain", and later in that same question she makes the point that "if her pain is deemed to be a work related condition then accordingly, the relapse of the pre-existing psychiatric condition is also aetiologicaily linked to work".
In relation to rehabilitation of this worker, as told to me, there were several attempts at returning into the workforce undertaken with the assistance of the rehabilitation provider, APN and then later, Konekt. She reported that these rehabilitation providers attended GP visits with her and instigated a graduated return to work programme at one time or another, where she was effectively undertaking "mentoring", which I understand from her to involve training new employees and I understand that this was undertaken at the … branch of the bank which she attended for approximately one month for 8 hours per day. On many occasions the trainees did not turn up so, to that extent, as she succinctly explained it, it was "not a real job".
Based on what l am told, there does not appear to have been a vocational assessment nor any attempt at retraining nor any comprehensive process to identify her interests, aptitudes or transferrable skills in relation to redeployment.
Socially, I note ... although she does not participate in sport, she does describe how she is somewhat more socially withdrawn than she used to be in terms of engaging with her friends, going out socially and so on. She can still undertake some gardening but suffers pain in the right forearm after activities and needs to "pace herself” in terms of what she undertakes. She can carry a light bag, undertake the cooking and similar household chores but undertaken mostly with the left arm. She reports right forearm pain in washing her hair, drying herself and similar. She also describes being able to drive comfortably for only short distances perhaps 10 minutes until she develops symptoms in her right arm. She reports that she lacks concentration and that this whole episode, in relation to her workers’ compensation claim, has "changed her whole life”.
PAST MEDICAL HISTORY
I note a history of recurrent SVT, for which she underwent aberrant pathway ablation techniques on two occasions with apparently good result. She now no longer takes medication in relation to the tachycardia. I also note that she attended an Emergency Department in the recent past with a pulse rate of 130 per minute and she was concerned that may reflect a recurrence of the SVT, however that apparently was not the case so l assumed from that, that her tachycardia was a normal sinus tachycardia related to anxiety. Certainly no further treatments were instigated or recommended as a result of that attendance.
She acknowledges that she has suffered from anxiety for many years and is "always linked to trauma”. She sees a psychologist fortnightly as I understand it.
She does take Efexor 75mg and Atavan at night as well as Nexium from recurrent gastritis.
OCCUPATIONAL HISTORY
…
When I asked her about her occupational future, she did speak positively about returning to the workforce, however she cannot see herself returning to bank work due to the repetitive forearm nature of the duties undertaken. Similarly, she described herself as "not being comfortable with sales” and disliking the lack of interaction with people in call centre type phone work.
EXAMINATION
On examination there is nothing abnormal to inspection of either forearm. Both her right and left elbows demonstrate normal motion with extension to zero and flexion to 145 degrees on the right and 150 degrees on the left and these are normal values (Table 9.10.1a).
She demonstrates 80 degrees of supination on the right and 90 degrees of supination on the left and these are also normal values.
At the right wrist she demonstrates extension to 60 degrees, flexion to 70 degrees, ulnar deviation 45 degrees and radial deviation to 30 degrees. These are all normal values as per the relevant Comcare Tables. I did not measure the left wrist.
She demonstrates tenderness, on this occasion in the medial epicondyle of the right elbow more than the lateral and I note some uneven pigmentary change on the right forearm that she was concerned about but would not be considered related to this presentation,
I can confirm that there is an increased circumference of the right forearm compared to the left, but it is only minor, 5mm by my measurement.
I did contemplate a diagnosis of CRPS, that is chronic regional pain syndrome and whilst she quite dearly has chronic pain, the criteria listed in Figure 9e of the Comcare Guides would not be satisfied to the extent required to make that diagnosis.
She demonstrates a full range of movement of the right shoulder and a full range of movement of the neck and both biceps and triceps jerk were present and uniformly hyper-reflexic.
There was no evidence of carpal tunnel syndrome clinically, with a negative Tinel’s sign at both wrists.
I measured the range of motion of her index finger on the right side and this was normal, whereas her grip was much reduced on the right side generating 5, 9 and 2kg versus the left side 8, 12 and 5kg In Jamar Dynomometer handles 1, 3 and 5.
OPINION
This worker sustained a right forearm injury three years ago in the setting of her work. She had gradual onset of pain that is consistent with and supported by appropriate ultrasound findings of lateral epicondylitis.
With the passage of time and various treatments there has been no improvement in her symptoms. She would now be considered to suffer from a chronic pain syndrome, although a diagnosis of CRPS could not be sustained, at least not by the criteria required in the Comcare Guides. As has been mentioned in the letters of both Dr Edward-Smith, Dr Sharon Elsley and Dr Michael Ponchard, there is a psychological component involved in this case and both the psychiatrist and the psychologist do aetiologically tie the depressive symptoms and anxiety to the pain that she suffers.
This worker has a replete occupational history and indicates that she would like to return to the workforce in an alternative capacity.
In my opinion, she should be offered an appropriate and comprehensive vocational assessment with a view to redeploying her in some alternative position, either with the current employer or indeed a host employer if no suitable positions exist in the … Bank.
My other recommendation is that she should be afforded the opportunity to fully complete the multidisciplinary pain treatment that she was pursuing at Cambridge Pain Management Centre. She speaks positively about the involvement of that practice in helping her.
In answer to your many questions:
1.        The initial diagnosis in the setting of her workplace injury was right forearm lateral epicondylitis. This has progressed over time to become a more generalised pain disorder.
Additionally, and I quote from Dr Gemma Edward-Smith in this regard, she has “a Major Depressive Episode – Recurrent”.
2.        I cannot comment on the psychiatric prognosis, it is outside my field of expertise
3.        In relation to her chronic forearm pain, the prognosis is guarded. Whilst it is true that the majority of cases of epicondylitis resolve in time and are self-limiting, this has not proven to be the case with [the Applicant]. Perhaps if she could re-enrol in the comprehensive pain management programme there may be some improvement certainly she needs a multidisciplinary approach.
4.        This is not appropriate.
5.        This relates to medical treatment and I think the appropriate treatment for her would be re-enrolment in the Cambridge Pain Management programme.
6-8.      These questions relate to work. Leaving aside all that has transpired in the last few years, it is my opinion that there is some retained work capacity here, however it will need a coordinated approach in terms of pain management strategies and vocational assessment in order to place this worker in an appropriate position, observing the restrictions of limiting the keyboard work to what she can reasonably undertake.
In that regard, l note the prescient comments of Dr Jack Edelman from much earlier on.
These questions relate to impairment. I do think [the Applicant] has impairment of the forearm. She does not have measurable impairment related to the various tables that measure motion as the motion in all the relevant joints are normal.
Table 9.14 would be the most appropriate Table to reflect her functional impairment, yet the instructions in the Comcare Guides preclude the use of that Table in this situation as they clearly state on Page 125 that the Table "cannot be used unless the condition involves radiographically demonstrated joint instability or arthritis or the employee has had an arthroplasty”. [The Applicant] does not have those conditions so therefore I am precluded from using that Table.
16.      Certainly in relation to the upper limb condition there is no loss of life expectancy.
17.      I could not comment in relation to the psychiatric diagnoses. You would need independent advice on that.
Report from Dr Gemma Edwards-Smith, Consultant Psychiatrist, dated 19 March 2013 (T12 at 142-152)
In this letter, Dr Gemma Edwards-Smith, a consultant psychiatrist, provides an extensive overview of the Applicant’s mental health history, as follows:
INTRODUCTION
At the commencement of the Interview I explained the purposes of an independent medicolegal examination. I indicated I was not a treating doctor and that I was not able to provide any advice.
My report is based on the history provided by [the Applicant], the appropriate clinical examination and the documentation provided.
HISTORY
[The Applicant] is a … year old woman who lives with her husband. She has a … year old daughter living independently. She is presently employed by the … Bank … as a customer service specialist and has been with the bank since 2007. She was initially employed at the ... branch and subsequently at … on a fulltime basis.
She said that she had last worked on 11 January 2013 and at present remains off work in the context of an accepted claim for workers’ compensation for a physical injury and she has advised that no suitable alternate or light duties are available.
[The Applicant] described the gradual onset of physical symptoms affecting her right arm. She had noted in 2010 the onset of pain in her right elbow which was intermittent and she had been able to ignore it. She said that gradually the pain became more frequent, particularly in the morning and after work in the evening, in 2011 she said she had told her boss that she had aches and pain in her arm. She had also mentioned to her general practitioner in the course of a consultation and he had told her that she was suffering from tennis elbow.
[The Applicant] stated that towards the end of 2011 her symptoms had progressed. She had noted that her fingers were tensing up, she had pain affecting the right elbow radiating down the forearm and to her fingers. She said that she thought she had to live with it.
She recalled that in October 2011 she had spoken to a new manager. She said that her new manager had initiated a conversation asking as to whether or not she had a problem with her right arm as she had noted that [the Applicant] seemed to be typing less. The manager had suggested that she obtain a second opinion
[The Applicant] had taken some annual leave and had consulted a doctor at the … Medical Centre she had been referred for investigations and was told that she was suffering from epicondylitis. She recalled that she had treatment with physiotherapy and time off work and eventually her doctor and physiotherapist had suggested that she submit a workers’ compensation claim which she had proceeded to do. The claim had been lodged in approximately December 2011. I understood from her that eventually, in approximately January 2012, her claim had been accepted. She had undergone a series of treatment, including physical therapy, prescription of anti-inflammatory medication and a cortisone injection.
She had been advised to cease work which involved typing. She said that throughout 2012 she had worked intermittently depending upon the availability of work which did not require her to type, for example mentoring staff, and she had therefore worked intermittently. If no work was available for her, she was not able to work and from January 2013 no suitable duties had been available.
[The Applicant] had commenced treatment at a pain management programme in Wembley and reported that she had attended a weekly massage, had seen an exercise physiologist and had been given a home exercise programme. She described being diligent with this activity.
CURRENT PHYSICAL SYMPTOMS
[The Applicant] thought that over the last 6-8 weeks her symptoms had not been as bad. She has been off work since January and she thought that she was not doing very much to aggravate her symptoms. She said that presently the pain was not constant. She described pain affecting her right elbow, hand and right index finger intermittently. She also said that she had noticed intermittent swelling affecting her right forearm and right forefinger. She also described episodic stabbing pains affecting the right elbow.
CURRENT MEDICATIONS
[The Applicant] said that she takes Nurofen Zavance. Over the last three months she has also been taking the antidepressant, Efexor 37.5mg. She takes another medication which I understand to be Ativan.
PAST PSYCHIATRIC HISTORY
[The Applicant] advised that at the age of 29 or 30 she had suffered from a nervous breakdown after her marriage broke up under difficult circumstances. There had been a suicide attempt by overdose and a 5-8 week admission to the psychiatric ward at Sir Charles Gairdner Hospital. She recalled her symptoms at the time had included depression and anxiety. She had been prescribed medication, had attended therapy and thought there had been an outpatient psychological treatment programme. She had recovered from this episode. [The Applicant] could not recall the period of treatment with antidepressant medication.
There had been a further stressful life event in 1999. A diagnosis was made of a malignant melanoma. She had required surgical intervention and was told the prognosis was that she had approximately 12 months to live. [The Applicant] had challenged the diagnosis, there had been a review of the pathology of the lesion, and eventually, apparently over one year later, this determined that she had in fact never had a melanoma and the diagnosis and treatment had therefore been incorrect. She had proceeded with civil litigation which eventually settled. She said that it was in fact after she was told of the misdiagnosis that her psychological symptoms had occurred and she had developed symptoms of depression and described issues with trust, particularly given the misdiagnosis, and she thought she had attended counselling. Again she said that she had recovered.
[The Applicant] also reported another episode in 2009. There had been stressors in her family … She had felt stressed, had spoken with her doctor and was prescribed steeping tablets. She found it difficult to recall the details of this treatment. She said that since her arm injury, particularly over the last 12 months, she had felt very uncertain and worried about her future. She described episodes of emotional tearfulness and prominent physical symptoms, including a racing heart. A cardiology review had been undertaken given her prior history of ablative treatment of supraventricular tachycardia. The cardiologist had suggested that her symptom was related to anxiety.
[The Applicant] described difficulty sleeping with profound initial insomnia. She thought that her appetite had been low and she had lost weight. She also reported problems with concentration and memory.
She had been referred to a psychologist, Dr Sharon Elsley, and has been seeing Dr ElsIey at a frequency of every 2-4 weeks since March 2012. She had been prescribed the antidepressant, Efexor 37.5mg, ie a very modest dose. However, [the Applicant] identified that this had been helpful.
CURRENT PSYCHOLOGICAL SYMPTOMS
[The Applicant] identified a modest improvement in symptoms. She said that she continues to feel anxious and very worried about her future and her mood remains somewhat low. She described physical symptoms, including palpitations. She thought that her sleep, however, had improved with treatment. Her concentration is very variable and her appetite remains low. She did not identify any suicidal thoughts.
….
PAST MEDICAL HISTORY
The past medical history is of supraventricular tachycardia, partial hysterectomy, appendicectomy.
I also noted the history of surgical treatment of excision of a naevus with the initial diagnosis of melanoma which had been subsequently revised, ie she has not suffered from malignancy.
She has also had colonic polyps, is presently undergoing a review of her gastrointestinal symptoms and is shortly to undergo a further colonoscopy on 3 May.
She is currently very troubled by constipation and rectal discomfort
SUBSTANCE USE
Nil Reported.
DEVELOPMENTAL HISTORY
[The Applicant] ... migrated with her family to Australia when she was eight years of age. She described growing up in a very close family … She said there had been initial issues surrounding the migration period, that she had to learn English and has always acted as a translator for her parents. Her parents had worked hard and [the Applicant] described taking on a lot of responsibility at a young age. All of her employment history has been in various clerical and administrative positions, inducting work in banking, finance and insurance.
… She described her home life as supportive. Although she denied any present significant personal stressors, I did note that there are current issues. Her father is presently . suffering from dementia. She said that she has not been able to help her mother due to the difficulties she has with her arm. Her sister, however, … is able to provide assistance. She does go with her mother to the hospital and assists with interpreting.
She enjoys social activities with her husband, including socialising with friends.
MENTAL STATE EXAMINATION
[The Applicant] presented as a slim, 51 year old woman, neatly dressed and groomed. She was pleasant and co-operative and an adequate rapport was established. She had a page of notes which she referred to occasionally with respect to the history of her injury and medical treatment. She was intermittently tearful throughout the interview. I thought her mood and affect were low and dysphoric. She denied suicidal ideation
SPECIFIC QUESTIONS
In respect of the specific issues you raise:
1.    History of psychological Injury and treatment
Please refer to the above history provided by [the Applicant] on 19 March 2013.
2.    Your findings on clinical examination.
Please refer to the above subsection, “Mental State Examination”.
3.    Your diagnosis of injury — please provide specific reference to a DSM-IV (or equivalent guide) diagnosis outlining your reasoning with reference to specific criteria met (or not met) and outline your Multi-Axial Assessment
I have made the following assessment pursuant to the DSM IV multiaxial classification system:
Axis I Clinical Conditions
Major Depressive Episode Recurrent given the history of prior episodes of depression and the recent history of symptoms which meet the DSM IV diagnostic criteria, including low and depressed mood, insomnia, loss of appetite and weight, impaired memory and concentration and significant co-morbid anxiety.
Axis II Personality
No Diagnosis.
Axis III Medical Conditions
I note the significant physical symptoms pertaining to the right arm and I understand she has been certified as medically unfit to carry out unrestricted duties due to the right arm symptoms and the current investigations for constipation.
Axis IV Psychosocial and Environmental Stressors
I note the current workers' compensation claim, her anxiety regarding her employment future and the current stressors in her family …..
Axis V Global Assessment of Functioning
This pertains to the assessment of functioning solely relating to psychological and not any physical impairment Current GAF = 75.
4.    Does the employee's presentation rise to the level of clinical significance - ie does the employee's presentation represent a mental or psychological condition that is outside the boundaries of normal mental functioning and behaviour? Please provide comment distinguishing the employee's presentation as a diagnosable psychological condition as opposed to mere anger, grievance or other:
Yes, I have made a diagnosis.
5.    If your diagnosis is different to that provided by the employee's treating doctors as stipulated in the enclosed reports, please advise why your diagnosis should be preferred?
No other psychiatric reports were available.
6.    Please state clearly ALL of the contributing factors (that have resulted in the injury) that could be stated to have caused the injury - both work-related and personal.
[The Applicant] has a prior significant history of recurrent episodes of depression in the context of significant life stressors. She has developed a current episode of depression which does appear to be aetiologically linked to her ongoing physical symptoms of pain. The cause of her pain is outside the range of my expertise. However, if her pain is deemed to be a work-related condition, then accordingly the relapse of the pre-existing psychiatric condition, ie major depression, is also aetiologically linked to work.
There are also significant personal stressors which are aetiologically significant and pertain particularly to the health difficulties experienced by her father and brother.
7.    Do you believe the employee's employment with the ... bank … has contributed to a significant degree? Please provide specific information that demonstrates the link (or lack of link) in establishing causation between employment with the bank and the disease.
Yes, please refer to my above response to question 6.
8.    Having regard to your opinion of diagnosis and causation, can you outline (with citation where practicable any medical literature or other studies that provide evidence-based support for your conclusions? Please also discuss any findings from objective sources (diagnostic imaging, etc.) and how these support your conclusions.
Chronic pain is commonly associated with depression. In a person with pre-existing depression, they are rendered more vulnerable to the recurrence of this illness in the context of a stressor, including pain.
9.    Current capacity for work - please provide specific information in your response including consideration of:
·If the employee is unfit for work, how long do you anticipate this to continue? When fit to resume work, what restrictions would be recommended?
·If the employee is currently fit for suitable duties, are the current restrictions consistent with the employee’s functional capacity as demonstrated in the clinical examination? If not, would you please recommend what restrictions would be appropriate given the employee’s current presentation at examination?
·If the employee is fit for suitable duties but reduced functional capacity and/or hours, would you provide recommendation for an appropriate upgrade in hours/duties over the coming period to upgrade to pre-injury status?
·If the employee is fit for suitable duties, when do you anticipate the employee will be fit for pre-injury duties?
From a psychiatric point of view, I have not identified any incapacity for work. She is fit to participate in retraining. I understand, however, that there are physical restrictions upon her work capacity.
10. General prognosis for full recovery - including both incapacity and treatment needs.
To a degree, the longer-term prognosis will depend upon the outcome of her pain, I would certainly be supportive of ongoing psychological treatment.
11. History of treatment and other medical management and recommendations for future management - recommendations regarding treatment type, frequency and fixed timeframes for programme (for example, counselling twice weekly for a further 6 weeks).
Confining my opinion to the treatment of her depression, ie the psychiatric condition, I recommend allowance be made for the following:
i)Psychological treatment at a frequency of 1-2 appointments per month for a period of 6-12 months; and
ii)Continuation of antidepressant medication, presently Efexor 37.5 mg, for a period of 12 months. The dose of Efexor does appear to be suboptimal. However, I understand that [the Applicant] advises that she has been troubled by side effects in the context of previous treatment and she does identify a beneficial response to the treatment, albeit at a very low dose.
[The Applicant] has attended a pain management programme and has now been suitably educated regarding chronic pain. She was able to describe to me her understanding of chronic pain and she has found the intervention from the Wembley Pain Management Programme very beneficial. Certainly this would appear to be an important part of her recovery.
Letter from Dr Sharon Elsley, Clinical Psychologist, 30 May 2013

This letter reads as follows:
[The Applicant] has been my client since March 2012 when she was referred by her GP for anxiety and depression related to pain suffered as part of a workplace injury with the … Bank. She was receiving workers compensation, however this has now ceased and she is without income. She is now on unpaid sick leave.
[The Applicant] is unable to work as her injuries require her to rest and not use her arms, in particular, the right arm and hand. She has been receiving specialist treatment for her condition. It is expected that the applicant will not be able to work for the remainder of this year however, this will be reviewed as necessary.
It is my diagnosis that [the Applicant] suffers from major depressive disorder and anxiety symptoms. She has difficulty sleeping. She also has a cardiac condition which is adversely affected by her current stress. She is having a surgical procedure next week to help with her cardiac function.
Letter from Dr Frederick K F Ng, Consultant Psychiatrist, 29 August 2013 (T12 at 153-171)
In this letter to Slater & Gordon dated 29 August 2013, Dr Ng provides the following detailed medical assessment:
[The Applicant] … told me that she was currently in a generally stable … marriage to her current husband …
…
She said that she had been employed by the . Bank … in the area of customer service on a full time basis.
She said that she had not been at work since January 2013 having been certified unfit since then.
…
She said that her brother had his various health problems …
Your client told me that ... her family migrated to Australia ... She was not subject to any war or violence in her home country as this was many years prior to the war ...
...
She said that prior to the onset of her difficulties from the middle of June 2010, she had no pre-existing difficulties with her work colleagues or the bosses at the … Bank.
She said that she was a "hard worker” and was valued for her hard work by the bank prior to the onset of her difficulties.
…
PREVIOUS PERSONAL PSYCHIATRIC HISTORY
She told me that in 1991 she was diagnosed with depression and anxiety and was an inpatient … at Sir Charles Gairdner Hospital for six weeks. She had suicidal ideation at that stage and was treated with both medication and psychological therapy.
She said that the above occurred in the context of the breakdown of her first marriage. She said that the episode of anxiety and depression lasted for approximately two years and then totally resolved.
She said that a second episode of psychiatric decompensation occurred in 1999.
She said that she had been wrongly diagnosed with a malignant melanoma secondary to a misread pathology report. She said that she did suffer from anxiety and stress but did not feel particularly depressed at that stage, not like she had been in 1991.
She said that she also lost trust in the doctors. The above episode lasted for about two years.
She was treated with medications but she was unsure if she was treated with psychological therapy.
Subsequent to the above she developed right leg pain and said she saw a psychiatrist for it who said that there was a psychological component to that. She was given medication and it resolved.
She said that in 2009 her brother was injured after a fall, and your client suffered from stress and anxiety, but said she did not feel particularly depressed and was not suicidal. She said that she did not miss work to any extensive extent although intermittently did take short periods of leave at that stage. She told me that after six months she regained her emotional stability.
She reported she was free of any psychiatric symptoms for at least twelve months leading up to the onset of her physical difficulties, the basis of this claim, from the middle of 2010.
She reported that the onset of her father’s medical difficulties … had caused her some degree of grief and stress…
PREVIOUS WORKERS COMPENSATION CLAIMS HISTORY
Reportedly nil.
PREVIOUS MEDICAL HISTORY
Some years ago she had a motor vehicle accident, sustained whiplash to her neck which subsequently resolved.
She said that in 2009 she was found to have a heart arrhythmia, in 2010 she was treated with ablation to that part of the heart which resolved the problem.
She said that in 2013 she had another cardiac ablation for another arrhythmia.
She told me that she was under the care of a gastroenterologist due to bowel symptoms. She was unable to tell me exactly what the diagnosis was.
She said that she had an appendicectomy when she was twenty six years old, and as a nineteen year old she had some “fatty tissue” removed from both her feet.
As a child she said she may have had hepatitis A. She had also suffered from measles and mumps as a child.
MEDICATION
She told me that she was currently taking the antidepressant Efexor XR 75mg daily, which she was commenced on by her general practitioner about nine months ago.
She was also currently taking the minor tranquiliser and anxiolytic Ativan 1 tablet nocte, she was unsure of the strength of the tablet, which was commenced six months ago by her general practitioner.
She took Nurofen on an as required basis.
She denied allergies to medications.
HABITS
She told me that she currently smoked twenty cigarettes a day. She denied the current use of alcohol.
She denied the use of illicit drugs.
PREMORBID PERSONALITY
She described herself premorbidly as “I smile no matter what”. “I am very caring, dedicated, loyal, loving, capable, genuine”.
She said that she was usually not a worrier, if there was nothing to worry about and she liked to find solutions to difficulties.
She reported that she was a hard worker at her work.
THE INCIDENT
She told me that her physical difficulties commenced in about the middle of about 2010 with right elbow discomfort and pain, and then she developed some of the similar difficulties on the left hand side. She said that her treatment included splints and physiotherapy.
She said that in November 2011 she was diagnosed with epicondylitis.
She said that she was concerned about the pain from the outset, and she was also concerned about the stigma of workers’ compensation claims.
She reported that she started to feel clinically depressed by about January 2012. At that stage she said she was tearful, she was irritable and grumpy, and that her libido had diminished, she had lost her ability to concentrate effectively, and she was very worried about her situation but she denied the development of suicidal ideation.
She said that currently she experienced pain and discomfort in the right elbow which could go down to the right forearm and up to the right shoulder where there was tightness. Occasionally she also experienced left elbow discomfort.
She said that she was seeing a physiotherapist
She said that she was angry at herself for the onset of her physical symptoms and frustrated with the symptoms.
She said that she had worked so hard at work, and she said she may not have developed her physical symptoms if she did not work as hard as she had.
I understand that your client commenced seeing the psychologist Elsey in relation to the current difficulties in March 2012, prior to which she did see Elsey on two previous occasions for hypnotherapy to cease smoking.
I understand from your client that she was commenced on the antidepressant Efexor XR nine months ago, and the minor tranquiliser Ativan six months ago.
SYSTEMATIC ENQUIRY
I enquired if your client had any other psychiatric symptoms at the present time.
Your client said that with the assistance of the minor tranquiliser Ativan her sleep had improved.
She denied any current bad dreams.
She reported that her current appetite was abnormal in that it was somewhat reduced, although at times was up and down.
She said that her current self care pertaining to grooming herself, was somewhat reduced.
She told me that she was currently socially withdrawn to a moderate extent, and did not invite people to their home unless her husband insisted on it and was not motivated to interact with others socially when they invited her, but her husband would insist on them going.
She said that she did not have any trouble travelling away from home.
She reported that she was currently under financial stress because she was not working and not being paid.
She also said she had become somewhat withdrawn and distant from her current husband and there were arguments (more than normal) and there was some strain in the relationship.
She told me that her ability to focus and to concentrate currently was moderately compromised and she was forgetful and she lacked in motivation and drive; all of which reduced her ability to persist at tasks and reduced the pace at which she could carry out tasks.
She told me that as she felt in the way she currently was she was not able to be at work.
She said that she was tearful "on and off” these days but she was not suicidal currently.
She said that her libido was currently nil.
She said that she remained irritable, snappy and easily angered these days.
She felt frustrated with her current predicament and blamed herself
She was also very worried about her future and her work prospects and her career as there was a lot of uncertainty as to what she could do in the future.
She said that she did want to work, but had to compensate for her physical pain and now had her emotional difficulties in conjunction with her physical difficulties.
MENTAL STATUS EXAMINATION
On mental status examination your client presented in clear consciousness with no evidence of agitation, aggression or disinhibition at interview.
She was casually clothed and normally groomed.
She wore spectacles.
She was cooperative at interview and some degree of rapport was established. She was anxious to a varying extent during the interview.
Her speech was normal in form, flow and rate.
Her affect ranged between mild depression and at times more moderate depression and was normal in range and reactivity.
There was no evidence of bizarre or dramatic behaviour and her presentation was consistent throughout the interview.
I will now answer your questions.
DIAGNOSIS
1.       What is the diagnosis of the condition or conditions (including any co-morbid features of sequelae)? Please identify and diagnose each condition, if distinctly different, on a separate numbered line.
Based on the history elicited, the mental status examination, having perused copies of your documentation and from my clinical experience, I believe that your client currently suffers from a partially treated major depressive episode (DSM IV TR).
The psychiatric condition has been diagnosed as she reports experiencing pervasively depressed mood, sleep difficulties, loss of concentration, loss of motivation and drive, there were indications that she had diminished capacity to enjoy life, was unable to sustain and persist at activities, abnormal appetite, concentration and memory difficulties, and associated with the depression was increased levels of worry and anxiety.
PROGNOSIS
2.       What is the prognosis of each condition identified in your answer to question 1 above?
The major depressive episode is currently partially treated, with both psychotherapy and two different-types of psychotropic medications, one of which is an antidepressant and the second of which is a minor tranquiliser
With the further passage of twelve to twenty four months and with optimisation of her psychiatric treatment as recommended below, her psychiatric condition should improve.
However for as long as she has physical symptoms which lead to physical functional restrictions, this will perpetuate some degree of increased levels of stress and distress which will in turn perpetuate some degree of ongoing depression and worry.
CAUSATION
3.       Please identify all factors and events that contributed to, or aggravated, each condition you have diagnosed in your answer to Question 1 above. Having regard to all factors and events (including any that are not related to my client’s employment), please identify each condition that was contributed to, or aggravated, to a significant degree, by my client’s employment.
Given that your client disclosed a previous personal psychiatric history, although she denied suffering any psychiatric symptoms for at least twelve months leading up to the onset of her reported physical difficulties, given that I could not identify any non-work related factors around the time of the onset of this episode of depression, and given the emotionally traumatic nature of the onset and persistence of her physical symptoms which reportedly adversely affected her work with respect to her epicondylitis, I am satisfied that the said difficulties with the physical symptoms (the epicondylitis) and the associated physical functional restrictions, were the most significant contributing factors in the onset of her current episode of pathological depression.
She may have been predisposed to the onset of her current episode of depression given that she did have at least one episode of major depression in 1991, and following that did have two further episodes of psychiatric de-compensation which she said were not predominantly depressive in nature but was more of high levels of stress and anxiety in relation to a mistaken diagnosis of malignant melanoma in 1999 and in relation to her brother’s physical difficulties in 2009.
This current episode of pathological depression may have been somewhat perpetuated by her father’s medical difficulties …
TREATMENT
4.       When did my client first require or receive medical treatment in relation to each condition identified in your answer to question 3 above? Please specify a date, or month and year, if possible.
I understand that your client commenced seeing a psychologist in relation to the current difficulties in March 2012, prior to which she did see the same psychologist Elsey on two previous occasions for hypnotherapy to cease smoking.
I understand from your client that she was commenced on the antidepressant Efexor XR nine months ago, and the minor tranquiliser Ativan six months ago.
5.       What medical treatment does my client reasonably require in relation to each condition identified in your answer to Question 3 above?
I believe that your client currently requires ongoing treatment with antidepressant medication on a daily basis, and the careful use of Ativan due to its addictive properties, both for at least the next two to five years if not longer, at a cost of at least $50.00 to $100.00 a month.
As her current depressive condition remains partially treated, there is room to optimise the antidepressant treatment, in the first instance by increasing the dosage of the medication, at the discretion of the treating doctors.
Please send a copy of this report to the treating doctor/s.
INCAPACITY
6.       When did my client first suffer incapacity for work that resulted from one or more of the conditions identified in your answer to Question 3 above? Please specify a date, or month and year, if possible.
Purely from the psychiatric perspective, I believe that your client has been totally unfit for work from about January 2013.
7.       Does my client suffer total incapacity for work that resulted from one or more of the conditions identified in your answer to Question 3 above. If so, is this incapacity temporary or likely to continue indefinitely? If temporary, when is my client likely to be able to perform suitable employment? Please specify a date, or month and year, if possible.
Currently and purely from the psychiatric perspective, your client is totally unfit for any form of work due to the extent of the psychiatric symptoms she says she currently has.
It is uncertain at the moment as to when she will be able to return to some form of work in relation to her psychiatric difficulties.
This will depend very much on the course of her current psychiatric condition, and its response to further psychiatric treatment.
8.       If my client suffers partial incapacity for work, what suitable employment is my client able to perform?
This is not applicable given what I have just stated above.
IMPAIRMENT
9.       Does my client suffer impairment that resulted from one or more of the conditions identified in your answer to Question 3 above. If so, please describe each impairment in terms of the definition.
Purely from the psychiatric perspective, your client currently and using the PIRS suffers from a 17% current psychiatric impairment. Please note that this is not a permanent figure.
10.     With reference only to those impairments identified in your answer to Question 9 above, please identify those that are permanent? Please address all of the criteria in the definition, in particular whether all reasonable rehabilitative treatment for the impairment has been undertaken.
It is not possible at this present moment to provide you with an opinion as to whether this current psychiatric impairment will become permanent.
Her psychiatric condition has currently not arrived at the level of maximal medical improvement in that further psychiatric improvement should occur with the further passage of twelve months and hence her current psychiatric condition has not arrived at the level of maximum medical improvement and hence has not stabilised.
I am therefore and at present, unable to provide you with a current opinion regarding permanent psychiatric impairment.
11.     On what date did each impairment you have identified in your answer to Question 10 above stabilise and become permanent? Please specify a date, or month and year, if possible, and give reasons for your answer.
As stated in my answer to question 10 above, your client’s current psychiatric condition has not arrived at the level of maximal medical improvement in that further psychiatric improvement should occur with the further passage of twelve months and hence her current psychiatric condition has not arrived at the level of maximum medical improvement and hence has not stabilised.
12.     If a particular impairment you have identified in your answer to Question 9 above had not yet stabilised, when will each such impairment become stable and permanent? Please specify a date, or month and year, if possible.
It is possible (although not absolutely certain) that her current psychiatric condition will stabilise in the course of the next 12 months.
Note for Table 5.1
·This table is used to assess psychoses, neuroses, personality disorders and other diagnosable condition.
·The assessment should be made on optimum medication at a stage where the condition is reasonably stable.
·In addition to the terms activities of daily living and reactions to stressors of daily living, which are defined in the Definitions, the following terms are specifically defined in Chapter 5 of the Guide: 'supervision’, ‘assistance’, ‘direction’ and ‘suitable person; - please refer to these definitions.
13.     Is my client capable of performing activities of daily living without supervision, assistance or direction? Please give actual examples from my client’s reported history, particularly with regard to any reactions to stressors of daily living.
Your client is able to perform activities of daily living without supervision assistance or direction, however her psychological efficiency at performing these will be moderately reduced, given the psychiatric symptoms she says she currently has which will reduce her ability to persist at all tasks, reduce the pace at which she can carry out ail tasks and reduce the outcome and quality of her tasks. She would be currently more vulnerable to daily stresses of daily living as a result of her already compromised emotional state.
Examples of these have been stated in the body of this report, especially tie systematic enquiry section of this report.
14.     What is the percentage whole person impairment assessed specifically in accordance with Table 5.1 (Psychiatric Conditions}?
As stated in answer to question 9 above, your client currently has a percentage psychiatric impairment of 17%.
This CURRENT psychiatric impairment percentage is justified through the use of the PIRS in that in table 13.1 she rates class 2, table 13.2 class 2, table 13.3 class 1, table 13.4 class 3, table 13.5 class 3, table 13.6 class 5.
The above leads to a CURRENT median class score of 2.5 which is rounded up to 3 which an aggregate of 16.
Using table 13.7 the above corresponds to a CURRENT psychiatric impairment of 17%. This is not a permanent figure
15.     Only if a condition other than one identified in your answer to Question 10 above is contributing to a particular Whole Person Impairment rating (that is, contributing from a condition that is not casually related to my client’s employment), what is the contribution from the condition or conditions identified in your answer to Question 10 above expressed as a percentage? Please give examples in your report and compare my client’s pre-injury capacity with the current level of impairment to determine die appropriate level of contribution.
I do not believe that any non-work related issues directly contributes to her current level of psychiatric impairment.
NON-ECONOMIC LOSS
16.     What is the probable loss of life expectancy, if any, as a result of those conditions you have identified in your answers to Questions 11 and 12? Please state: ‘less than one year’, ‘one year to less than 10 years’, ‘10 years to less than 20 years’ or ‘20 years and greater’. If one year of more, please given reasons for your opinion.
This is not applicable to your client from the psychiatric perspective.
Letter from Dr Sharon Elsley, Clinical Psychiatrist, dated 24 February 2014 (T12 at 172)

From the above, it is difficult to determine whether, when assigning her impairment ratings (whether they be 10 or 20), Dr Elsley believes that the Applicant’s difficulties are caused by her Table 2 impairment or her Table 5 impairment. There is, in effect, a blurring of the issues that weakens the usefulness to the Tribunal of these medical reports.
It is unclear from the language used by Dr Elsley whether she is referring to the Applicant’s mental health impairment during the Relevant Period or, for example, in April 2015 (well outside the Relevant Period). Because of the language used by Dr Elsley (often written in the present tense), the Tribunal is led to conclude that the Applicant’s condition has deteriorated post the Relevant Period.
The Tribunal cannot take this information into account in relation to the Applicant’s DSP application.
As explained in Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 (at [34]):
In the Tribunal’s consideration as to whether a condition has been stabilised and is likely to persist in the foreseeable future, the Tribunal must look at the situation as it was, and the evidence that was available, at the time of the application for DSP (and the subsequent 13 weeks) ...
If a medical condition has progressed since the time of the original DSP application, then it is up to the applicant to make a new DSP application. It is not open in law for this Tribunal to use any evidence of such progression to directly award a DSP because of those changed circumstances.
This core principle has been stated with approval by the AAT in Yazdari and Secretary, Department of Social Services [2014] AATA 34, where Deputy President Handley stated (at [35]) that “no progression or exacerbation of a physical condition (or conditions) suffered by the applicant after the Claim Period could be used to award him DSP”.
In the circumstances, this Tribunal is unable to place much weight on the medical reports filed by Dr Elsley. They lack clarity in terms of how the impairment assessments assigned were actually assigned and for what impairment and it is unclear whether the assessments relate to the Relevant Period.
These concerns are also highlighted in the JCA reports of 10 April 2015 and 10 June 2015. Having reviewed the medical reports summarised in these reports the Tribunal agrees that there is unsufficient evidence to award the Applicant an impairment rating of more than 5 points for her mental health impairment during the Relevant Period.
The Tribunal notes in that regard (and comments accordingly) that the descriptors for a ten point score on Table 5 are as follows.
The person has moderate difficulties with most of the following:
(a) self care and independent living;
Example: The person needs some support (that is, an occasional visit by or assistance from a family member or support worker) to live independently and maintain adequate hygiene and nutrition.
The evidence does not demonstrate that this is the case for the Applicant. The Applicant continues to maintain adequate hygiene standards and nutrition levels. While her husband and family assist in this regard, the evidence does not demonstrate that the Applicant would not cope without their support.
(b) social/recreational activities and travel;
Example 1: The person goes out alone infrequently and is not actively involved in social events.
Example 2: The person will often refuse to travel alone to unfamiliar environments.
These descriptors do not fully apply to the Applicant. The evidence shows that the Applicant did, during the Relevant Period, travel without being accompanied, study at a university and socialise with family and friends.
(c) interpersonal relationships;
Example: The person has difficulty making and keeping friends or sustaining relationships.
The evidence shows that although the Applicant is currently socially withdrawn and no longer interested in meeting and socialising with numbers of people, during the Relevant Period, she did maintain social connections. She was also quite close to her family and was able to assist them during what were clearly difficult times for some of her family members. Indeed, the evidence shows that the Applicant’s strength and commitment to her family during this period was invaluable to them.
(d) concentration and task completion;
Example 1: The person finds it very difficult to concentrate on longer tasks for more than 30 minutes (such as reading a chapter from a book).
Example 2: The person finds it difficult to follow complex instructions (such as from an operating manual, recipe or assembly instructions).
The evidence shows that although the Applicant is currently struggling with her university studies, during the Relevant Period she was able to process complex information and solve problems.
(e) behaviour, planning and decision-making;
Example 1: The person has difficulty coping with situations involving stress, pressure or performance demands.
Example 2: The person has occasional behavioural or mood difficulties (such as temper outbursts, depression, withdrawal or poor judgement).
Example 3: The person's activity levels are noticeably increased or reduced.
The evidence demonstrates that the Applicant meets the descriptors in section (e).
(f) work/training capacity.
Example: The person often has interpersonal conflicts at work, education or training that require intervention by supervisors, managers or teachers or changes in placement or groupings.
There is no indication from the evidence that this descriptor applies to the Applicant during the Relevant Period.
In the circumstances, the Tribunal finds that the Applicant does not satisfy most of the descriptors relevant to a 10 point rating under Table 5. She does, however, satisfy most of the descriptors for a 5 point rating.
The Tribunal awards the Applicant 5 points for her mental health impairment. This rating is consistent with the findings of the SSAT.
Overall Impairment Points
On the basis of the evidence outlined above, the Applicant has an overall impairment rating of 15 points – 10 points under Table 2 and 5 points under Table 5.
In the circumstances, the Applicant does not satisfy section 94(1)(b) of the Act.
Continuing Inability to Work – section 94(1)(c)
As the Tribunal has found that the Applicant does not satisfy the requirements set out in section 94(1)(b) of the Act (ie her impairment rating is not of 20 points or more under the Impairment Tables), it is not necessary for the Tribunal to determine whether the Applicant has “a continuing inability to work” as per section 94(1)(c) of the Act.
For the sake of completeness, however, the Tribunal makes the following findings.
Section 94(2) of the Act defines a “continuing inability to work” as follows:
(2)A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(aa)in a case where the person's impairment is not a severe impairment within the meaning of subsection (3B) - the person has actively participated in a program of support within the meaning of subsection (3C); and
(a)in all cases - the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and
(b)in all cases - either:
(i)the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or
(ii)if the impairment does not prevent the person from undertaking a training activity - such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.
None of the Applicant’s impairments have been found to have been “severe” pursuant to section 94(3B) of the Act. As such, the Applicant needs to satisfy the Tribunal that she has actively participated in a “program of support” to satisfy section 94(1)(c) of the Act.
The Applicant will then need to satisfy the Tribunal that she has a continuing inability to work to satisfy the requirements of section 94(2)(a) and (b) of the Act – that is:
a) whether the impairment is sufficient to prevent her from doing any work or training activity independently of a program of support within the period 13 January 2014 to 13 January, 2016; or
b) if the impairment is sufficient to prevent her from undertaking a training activity, such activity is unlikely (because of the impairment) to enable her to do any work independently of a program of support by 13 January 2016.
Program of Support
A person can only be found to have “actively participated in a program of support” if they meet the requirements set out in the Social Security (Requirements and Guidelines - Active Participation for Disability Support Pension) Determination 2011 (the “POS Determination”).
Part 2 of the POS Determination sets out the requirements for active participation. Generally, a person must participate in a POS for at least 18 months within the three years prior to the date of claim in order to have actively participated in a POS (subsection 5(2) of the POS Determination). There are exceptions to this requirement set out in subsections 5(3) to (5), as follows:
·     the person has completed a program that ran for a shorter period than 18 months;
·     the program was terminated early, before the person claimed pension, because the person was unable, solely because of his or her impairment, to improve his or her work capacity;
·     the person is participating in the program at the time of their claim but is
·     prevented, solely because of his or her impairment, from improving his or her work capacity through continued participation.
The Secretary contended before this Tribunal that the Applicant has not actively participated in a program of support for the purposes of section 94(2)(aa) of the Act.
The Secretary noted that the Applicant’s referral history indicates that she participated in a program of support from 18 September 2013 to 19 November 2013 (4 weeks). This occurred 4 months prior to the date of the Applicant’s DSP claim (T18 at 217).
The Tribunal notes that the Applicant participated in two rehabilitation programs during her employment with bank.
The Secretary noted that the Occupational Rehabilitation Progress Report indicates that the duration of these programs was from 3 January 2012 to 24 May 2012. The Advanced Personnel Management Report shows that the duration of the program was from 26 November 2012 to 26 February 2013.
The Secretary contended that there is insufficient information to conclude that the rehabilitation undertaken by the Applicant with her employer was provided by a "designated provider" or that any such program was similar to a program that is designed to assist persons to prepare for, find or maintain work and that is funded (wholly or partly) by the Commonwealth.
The Tribunal disagrees and finds that the Applicant did participate in return to work programs with her normal employer and finds that there is no reason, legislatively, why these do not amount to programs of support. On the evidence, the programs in question satisfy the criteria in s 94(5) of the Act in that they are "similar to" a Commonwealth funded program of support.”
Unfortunately for the Applicant, it appears on the evidence before the Tribunal that the total period of participation in these programs of support was less than the required 18 months.
Further, there is no evidence that any of subsections 5(3) - 5(5) of the POS Determination applies to the Applicant. Her impairments were not so severe that she was unable to continue to undertake a program of support.
As the Applicant has not actively participated in a program of support within the meaning of the legislation, she is not qualified for DSP during the Relevant Period. She does not satisfy the requirements of section 94(2)(aa) of the Act.
Continuing Inability to Work
Section 94(5) of the Act defines ‘work’ as work that is for at least 15 hours per week on wages that are at or above the relevant minimum wage that exists in Australia, even if not within the person's locally accessible labour market.
When determining whether a person has a continuing inability to work, the Tribunal must disregard the following factors:
·any impairments that have not been assigned a rating under the Impairment Tables (Secretary, Department of Family & Community Services v Michael (2001) 116 FCR 500);
·the availability of work in the person's locally accessible labour market (section 94(3)(b));
·the availability to the person of a training activity (section 94(3)(a));
·the person's motivation to work or train except when medical evidence indicates that the lack of motivation is directly attributable to the impairment (Secretary, Department of Social Security v Pusnjak (1999) 56 ALD 444, 451);
·the person's preferences regarding the type of work or training (Crossland and Secretary, Department of Family and Community Services [2004] AATA 864 [34]);
·the person's potential attractiveness to an employer in a particular area of work or employer preferences and discriminatory practices that exist in the open labour market, including the willingness or otherwise of employers to engage people with disabilities (Woodiwiss and Secretary, Department of Family and Community Services [2003] AATA 846).
The Secretary contended that, with intervention, the Applicant is likely to be able to work for at least 15 hours per week within two years of lodging her claim for DSP.
In making this contention, the Secretary relied on the evidence of the job capacity assessors who concluded that the Applicant was capable of working 15-22 hours per week within two years with intervention, having regard to her various impairments.
The Tribunal agrees with the Secretary’s assessment.
The Applicant contended that the Tribunal should disregard the views of the four JCA reports before the Tribunal and rely only the medical evidence before it (in particular, the evidence of her psychologist, Dr Elsley).
In this regard, the Tribunal notes the AAT decision in Uebergang and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 642, wherein it was noted:
The Tribunal recognises that a Job Capacity Assessment is not about diagnosis or prognosis of a person's medical condition. Rather, its focus is drawing on the information provided by treating doctors and specialists when making assessments and applying the assessor's specialised knowledge and experience in identifying barriers to employment, interventions, available programs and suitable occupations to determine a person's impairment rating and work capacity. In Re Muir and Secretary, Department of Employment and Workplace Relations [2005] AATA 902, Mr S C Fisher, Member, recognised the different approaches taken by medical practitioners and work capacity assessors and preferred the evidence of the work capacity assessor as to the applicant's capacity to work or undertake retraining. At paragraph 43 of his reasons, the learned Member said:
"...The Tribunal agrees with the contention of the respondent that it does not matter whether the work capacity assessor does or does not hold any relevant medical qualifications as the work capacity assessor performs his or her task on the basis of accepting the conclusions and findings of other medical personnel and then determines whether or not the person been assessed does or does not have the requisite work capacity within the meaning of section 94(1 )(c) of the Act."
The Secretary contended that, in relation to the medical reports which the Applicant sought to rely on, this evidence does not specifically address the Applicant's 'continuing inability to work' pursuant to the statutory definition.
The Tribunal agrees. In his report of 29 August 2013, for example, Dr Ng writes that “purely from the psychiatric perspective, I believe that your client has been totally unfit for work from about January 2013.”
Dr Ng was asked:
Does my client suffer total incapacity for work that resulted from one or more of the conditions identified in your answer to Question 3 above. If so, is this incapacity temporary or likely to continue indefinitely? If temporary, when is my client likely to be able to perform suitable employment? Please specify a date, or month and year, if possible.
Dr Ng responded:
Currently and purely from the psychiatric perspective, your client is totally unfit for any form of work due to the extent of the psychiatric symptoms she says she currently has.
The Tribunal is unable to determine from Dr Ng’s evidence whether Dr Ng is concluding that the Applicant can work “at all”, a “full week”, “part time” or “15-20 hours per week” etc. He does not elaborate. He also fails to discuss the likelihood of employment with intervention. It would seem from his other comments, however, that in saying that the Applicant is unfit for work, he means “full time work”. The Tribunal notes, for example, that elsewhere in the same letter, Dr Ng writes:
Your client is able to perform activities of daily living without supervision assistance or direction, however her psychological efficiency at performing these will be moderately reduced, given the psychiatric symptoms she says she currently has which will reduce her ability to persist at all tasks, reduce the pace at which she can carry out ail tasks and reduce the outcome and quality of her tasks. She would be currently more vulnerable to daily stresses of daily living as a result of her already compromised emotional state.
These descriptions paint a picture of an individual with diminished work capacity – not an individual with no work capacity.
Dr Ng’s latter comments seem more aligned with the comments of Dr Edwards Smith (T12 at 142-153) who writes on 19 March 2013 as follows:
From a psychiatric point of view, I have not identified any incapacity for work. She is fit to participate in retraining. I understand, however, that there are physical restrictions upon her work capacity.
In relation to the Applicant’s “physical restrictions”, the Tribunal notes the comments of Dr Clarke (T12 at 118-125) who writes:
… it is my opinion that there is some retained work capacity here, however it will need a coordinated approach in terms of pain management strategies and vocational assessment in order to place this worker in an appropriate position, observing the restrictions of limiting the keyboard work to what she can reasonably undertake.
In relation to the evidence of Dr Elsley, the Tribunal again expresses concern that her evidence in relation to work capacity does not specifically address the legislative criteria in relation to intervention etc. There is simply insufficient detail in the analysis provided to determine why, precisely, Dr Elsley draws the conclusions she has drawn in relation to work capacity.
Having reviewed all of the evidence before it, the Tribunal finds that the weight of the medical evidence supports the conclusion that the Applicant does have an ability to work 15-20 hours per week as noted in the JCA reports of 10 April 2015 and 10 June 2015.
As such, the Applicant has not satisfied the requirements of section 94(2)(a) of the Act.
In relation to section 94(2)(b) of the Act, under section 94(5) of the Act “training activity” is defined as :
one or more of the following activities, whether or not the activity is designed specifically for people with physical, intellectual or psychiatric impairments: (a) education, (b) pre-vocational training, (c) vocational training, (d) vocational rehabilitation, (c) work-related training (including on-the-job training)
For the same reasons outlined above, the Tribunal finds that there is insufficient evidence before the Tribunal to find that the Applicant’s impairments prevent her from undertaking a training activity. On the contrary, the evidence reveals that she has successfully completed training activities and has undertaken university studies.

In this context, it cannot be said that the Applicant satisfies either of section 94(2)(b) or (c) of the Act.
The Tribunal finds, accordingly, that the Applicant did not have a continuing inability to work as required by section 94(1)(c) of the Act.
FINDINGS
During the Relevant Period, the Applicant had various impairments. The Applicant meets the requirements of section 94(1)(a) of the Social Security Act 1991.
The appropriate impairment rating for the Applicant’s impairments is 15 points (10 points under Table 2 for the Applicant’s Epicondylitis impairment and 5 points under Table 5 for the Applicant’s mental health impairment).
The Applicant does not satisfy the requirements of section 94(1)(b) of the Social Security Act 1991 as 20 points have not been assigned.
The Applicant has not demonstrated that she has a continuing inability to work. She has not actively engaged in a program of support and is not prevented by her impairments from undertaking any work of at least 15 hours per week. Nor is she prevented from being able to undertake a training activity.
The Applicant does not satisfy the requirements of section 94(1)(c) of the Social Security Act 1991.
Accordingly, the Applicant does not qualify for DSP.
DECISION
The decision under review is affirmed.

I certify that the preceding 191 (one hundred and ninety-one paragraphs are a true copy of the reasons for the decision herein of Deputy President, Dr C Kendall.
.............[sgd D Brodie]...............................
Administrative Assistant
Dated 21 August 2015

Dates of hearing 10 March 2015, 3 July 2015, 22 July 2015

Applicant In person (unrepresented)

Representatives of the Respondent

Ms S Vahalla and Ms S Yik Long

Solicitor for the Respondent

Australian Government Solicitor

Division	GENERAL DIVISION
File Number	2014/4406
Re	HZQF
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

Tribunal	Deputy President Dr Christopher Kendall
Date	21 August 2015
Place	Perth

Dates of hearing	10 March 2015, 3 July 2015, 22 July 2015
Applicant	In person (unrepresented)
Representatives of the Respondent	Ms S Vahalla and Ms S Yik Long
Solicitor for the Respondent	Australian Government Solicitor