Irving v Simon Blackwood (Workers' Compensation Regulator)
[2014] QIRC 7
•16 January 2014
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
| CITATION: | Irving | v | Simon | Blackwood | (Workers' |
Compensation Regulator) [2014] QIRC 007
| PARTIES: | Irving, Kelly | |
| (Appellant) | ||
| v | ||
| Simon Blackwood (Workers' Compensation Regulator) | ||
| (Respondent) | ||
| CASE NO/S: | WC/2012/492 | |
| PROCEEDING: | Appeal Against a decision of Simon Blackwood | |
| (Workers' Compensation Regulator) | ||
| DELIVERED ON: | 16 January 2014 | |
| HEARING DATE: | 19, 20 and 21 August 2013 | |
| 7 November 2013 (Appellant submissions) 21 November 2013 (Respondent submissions) 28 November 2013(Submissions in reply) | ||
| MEMBER: | Deputy President Swan | |
| ORDERS : | 1. The application is dismissed. | |
| ||
CATCHWORDS: | WORKERS' COMPENSATION – APPEAL AGAINST DECISION – decision of Simon Blackwood (Workers' Compensation Regulator) – appellant bears onus of proof –accepted workers' | |
| compensation claim for lower back injury in 2010 | ||
| – subsequent claim for psychiatric injury cased at | ||
| time of lower back pain injury – application dismissed – no medical evidence of depression | ||
| until appellant stood down from work in 2012 | ||
| CASES: | Workers' Compensation and Rehabilitation Act 2003, | |
| APPEARANCES: | Dr G. Cross, Counsel instructed by Everingham Lawyers for the Appellant. Mr J. Merrell, Counsel instructed by Simon Blackwood (Workers' Compensation Regulator). |
[1] Ms Kelly Irving (Appellant) is appealing the review decision of the Workers' Compensation Regulator formerly known as Q-COMP (the Regulator) which was issued on 3 December 2012.
[2] The Notice of Appeal was lodged with the Queensland Industrial Relations Commission (the Commission) on 20 December 2012 pursuant to Chapter 13, Part 3 (Appeals) of the Workers' Compensation and Rehabilitation Act 2003 (the Act/WCRA).
Background to the Application
[3] The Appellant worked as a retail assistant with KMart Australia Limited on the Sound counter at the KMart store at Mt Cotton Road, Capalaba. At the time of the hearing before the Commission, the Appellant remained an employee of Kmart.
[4] On 26 July 2010, whilst at work, the Appellant sustained a physical injury to her lower back ("the lower back injury").
[5] The Appellant was absent from work, on workers' compensation, because of her lower back injury from 3 to 10 August 2010.
[6] The workers' compensation claim was accepted by the self insurer of her employer, Westfarmers Group WorkCover ("Westfarmers") on 18 August 2010. In accepting the claim, it was determined that the Appellant had suffered an aggravation of a pre- existing disc degeneration in her lower back.
[7] The Appellant was referred to the Orthopaedic Medical Assessment Tribunal on 5 August 2011. The Appellant's workers' compensation claim for her back injury ceased on 11 August 2011.
[8] On 16 August 2011, by way of notice of a claim for damages (and as amended by Statutory Declaration on 7 September 2011) the Appellant's claim was that she had suffered a psychiatric injury acquired in the course of her employment on or around 26 July 2010.
[9] The Statutory Declaration prepared by the Appellant (dated 7 September 2011) stated:
"1. I suffered injuries during the course of my employment duties with Kmart Australia Limited on or about 26 July 2010.
2. On or around 16 August 2011, I delivered a Notice of Claim for Damages Form to Kmart Australia Limited in accordance with Section 275 of the Workers' Compensation and Rehabilitation Act 2003. At that time, I claimed damages for the following physical injuries:
Injury to back
Injury to right leg
Injury to right foot
3. I now intend to make a claim for damages for a psychiatric injury suffered by
me during the course of my employment duties on or around 26 July 2010.
4. I attach the following:
(a)
Amended Question 41 of my original Notice of Claim for Damages Form dated 16 August 2011." [Exhibit 2].
[10] The psychiatric injury to which the Appellant referred was described as an adjustment disorder with mixed anxiety and depressed mood or chronic adjustment disorder with mixed anxiety and depression. This claim was rejected by the insurer on 24 October 2012 on the basis that the Appellant's alleged psychiatric injury did not arise out of or in the course of the events of 26 July 2010.
[11] The application for review was dated 26 October 2012. The Appellant sought this Review on the basis that the insurer had not properly considered the medical evidence as to the cause of her psychiatric injury. In that application, the Appellant advised that she was obtaining further medical evidence.
Witnesses
[12] Witnesses for the Appellant were:
Ms Kelly Irving
Dr K Chau (Psychiatrist)
Dr S Campbell (Neurosurgeon)
Dr C Rowan (Addiction Medicine Physician) Dr J Albeitz (Orthopaedic Spinal Surgeon) Mr M Irving (husband of the Appellant) Ms L Lovett (Psychologist)
Dr Ray (Specialist in Pain Medicine and Anaesthesia) [13] Witnesses for the Respondent were:
Dr J Morris (Orthopaedic Surgeon) Mr D Lanham (State Human Resources Manager for Kmart) Mr B Mansfield (Store Manager of Kmart at Capalaba up until January 2013) Mr C Heinke (Injury Management Coordinator for Queensland for Kmart) Dr T Eivers (General Practitioner) Dr B Duke (Psychiatrist)
Agreed Matters
[14] The following matters were agreed between the parties:
That the Appellant was a worker within the meaning of the Act. That the Appellant had a personal injury, namely, an adjustment disorder with depressed mood.
That the Appellant's WorkCover for her lower back injury ceased on 11 August
2011.
That the Appellant was stood down from duties after a meeting with Mr Chris
Heinke on 8 June 2012.
The issue to be determined by the Commission
[15] The issue to be determined by the Commission is whether the Appellant suffered a personal injury, that being a secondary psychological/ psychiatric condition within the meaning of s. 32 WCRA.
[16] The relevant section of the Act states:
"32 Meaning of injury
(1) An injury is a personal injury arising out of, or in the course of, employment if
the employment is a significant contributing factor to the injury.".Onus of Proof
[17] The Appellant carries the onus of proof on the balance of probabilities that
(i) The Appellant suffered an injury, being a secondary psychiatric injury;
(ii) The secondary psychiatric condition arose out of, or in the course of, the Appellant's employment with the employer.
(iii) The employment with the employer was a significant contributing factor to the secondary psychiatric condition.
Brief background to the Appellant's claim
[18] After suffering her back injury, the Appellant stated that she had been "down on herself". Upon returning to work on suitable duties, the Appellant stated that when she wasn't serving customers, she would go to the back office and cry [T1-13].
[19] As of December 2010, the Appellant felt depressed because she believed she would have recovered from her injury by that time.
[20] The Appellant was prescribed Endep by Dr Watson. The Appellant also stated that her attitude towards her husband had changed as a consequence of these issues.
[21] Through to March 2011, the Appellant said she had been unable to sleep because of pain and she felt depressed as a consequence. The employer also noted at that time that the Appellant appeared to have psychological issues [Exhibit 25].
[22] On 27 June 2011, the Coles Claims Management system notes that the Appellant had been referred to Injury Counselling [Exhibit 26].
Brief background to the Respondent's response
[23] The Respondent understood the Appellant's claim that no later than June 2011 the Appellant had suffered a psychological/psychiatric injury and that this injury occurred in the period from 26 July 2010 through to 2011.
[24] The respondent outlined its case as follows:
After incurring her injury in July 2010, the Appellant did not seek any treatment from a general practitioner or any other medical practitioner in respect of any psychiatric or psychological injury suffered as a consequence of pain from her lower back injury.
The Appellant continued working for Kmart from early August 2010 until she was stood down by her employer on 8 June 2012.
The Appellant had wanted to return to work after being stood down in June 2010 but this request was rejected by Kmart. It was only after that time that she became depressed and consulted her general practitioner, Dr Eivers who then referred her to a psychiatrist for psychiatric treatment.
The Appellant's injury, i.e. her adjustment disorder with depressed mood arose
out of, or in the course of the decision of Kmart to stand her down from work on June 2012 and not permit her to return to work despite her expressed wish to and agitation with Kmart to return to work.
There is no contemporaneous medical evidence from a psychiatrist or a
psychologist before June 2011 to the effect that no later than June 2011 the Appellant was suffering a psychological or psychiatric injury as a result of the pain that she was experiencing from her back injury.
Evidence
[25] The Appellant's evidence was that since July 2010 she had seen various general practitioners at the Capalaba General Practice including Dr Eakin and Dr Eivers, whom she primarily saw.
[26] After the 26 July 2010, the Appellant had a week off work. She returned to work on a suitable duties program on the basis of information received from Dr Eakin, Dr Eivers and Dr Albeitz. The restrictions of that program included how many hours per day she would work, how much she could lift, that there be no pushing or pulling of items and frequent standing and sitting and right hand/left hand work. The hours of work eventually were decreased.
[27] After her WorkCover claim for her lower back injury ceased in August 2011, the Appellant continued to work for Kmart on a restricted duties program. Dr Eivers continued to provide information to Kmart regarding the Appellant's ability to continue her work.
[28] A stock take had been undertaken by Kmart in May 2012 and the Appellant had, on one day, been standing for more than 20 minutes. At that time, she took the day off and told Kmart that she had advised Dr Eivers that her pain had deteriorated because she hadn't been relieved after a 20 minute period. Dr Eivers then advised Kmart that the Appellant should not stand for more than 10 minutes.
[29] In June 2012, the Appellant attended a meeting at Kmart with Mr Heinke. Mr Heinke stood the Appellant down for no less than 2 months on the basis that Dr Eivers had informed Kmart that she was unable to stand for more than 10 minutes and he expected her condition to improve after 2 months.
[30] The Appellant had wanted to stay at work and she told that to Mr Heinke . The Appellant saw Dr Eivers and told him that she could stand for 20 minutes if she could walk around some of the time.
[31] A further meeting was held between the Appellant and Kmart representatives on 26 June 2012.
[32] At that meeting were the Applicant, her husband Mr Irving, a Union representative, Mr Lanham and Mr Mansfield.
[33] The Appellant told Mr Lanham that she wanted to continue to work. Kmart asked her to supply further medical opinion from her treating medical practitioners regarding her fitness to continue work.
[34] Another meeting was held on 10 August 2012 between the Appellant, Mr Irving, Mr Lanham, Mr Mansfield and Mr Heinke.
[35] At that point the Appellant had not provided any medical information that she had been asked to do at the meeting of 26 June 2012.
[36] The Appellant said that Mr Lanham could have raised that issue with her prior to the meeting, but Mr Lanham's response was that it was her responsibility to provide that information. Somewhere in that conversation, the Appellant agreed that she stated words to the effect "You're stuffing me around".
[37] The Appellant had stated that she needed to return to work because she and her family were suffering financial stress. The Appellant asked Mr Lanham whether she could perform the duties of customer service, however, Mr Lanham said there was no such position at Kmart.
[38] When Dr Eivers saw the Appellant on 6 September 2012, his clinical notes state:
"…still not at work, getting twitchy and having 'double end' movements, using
Endep 300 mg at night at present also having some difficulty passing urine in the morning, Mood very poor, depressed at protracted nature of work issues and not being permitted back to work".
[39] Dr Eivers' evidence was that the Appellant told him she was depressed because she could not go back to work and he attributed her depression to that factor [T3-52].
[40] The Appellant had been asked by Counsel for the Regulator why she had never sought any medical help for her depression or low mood prior to 6 September 2012 when she visited Dr Eivers, and she stated that it was because she was embarrassed to do so.
[41] Regarding the use of Endep, the Appellant said she had been prescribed that for assistance with her pain and getting to sleep at night [[T1-46].
Medical Evidence
[42] The Appellant had seen Dr Eivers, after her back injury and he had advised Kmart that upon her return to work she could only stand for 10 minutes. Dr Eivers believed that the Appellant's condition was not likely to improve for two months.
[43] The Appellant was referred to Dr Albietz in November 2010. The Appellant was treated by this Doctor on five occasions up until June 2011. The diagnosis was that the Appellant had suffered aggravation of her lumbar spondylosis and employment was a significant contributing factor to her continued incapacity. Dr Albeitz last saw the Appellant on 1 June 2011. Prior to the work injury, Dr Albeitz said the Appellant had a problem with her lower back and she had reported pain symptoms to him.
[44] Dr Campbell believed that the Appellant was suffering an eight percent whole person impairment and that her condition would be permanent.
[45] Dr Campbell stated that he had seen the Appellant once, some three weeks prior to
the hearing. He stated that the Appellant had a DRE category 11 injury – in this
case a soft tissue injury and this fell into the category of being a minor injury
compared to other DRE categories [T 1-69].[46] The Appellant states that both Ms Lovett on 20 May 2011 and Dr Ray on 7 September 2011 confirmed that she was suffering a psychological condition.
[47] On 18 February 2013 and 9 August 2013, Dr Chau provided reports with regard to the Appellant. In the 18 February 2013 report, Dr Chau stated that the Appellant had symptoms of adjustment disorder with depressed mood and an aggravation of generalised anxiety disorder and social phobia as a result of her worsening back injury at work since 2010 [Exhibits 10 and 11].
[48] Dr Chau was aware that that the Appellant had been prescribed Cymbalta (an anti- depressant) but she was not sure when this had occurred and she was unsure as to why the Appellant had been prescribed Endep.
[49] Dr Chau said that when she saw the Appellant the impression she gained was that her poor mood related to the pain in her back rather than being depressed at not being able to return to work.
[50] It was put to Dr Chau in cross-examination that "if she assumed that:
(a) the Cymbalta was prescribed for the Appellant in October 2012; and
(b) that was after the Appellant had been referred by her general practitioner to see a
psychiatrist because she had been stood down from work; and(c)
the Appellant had become depressed from being stood down from work and was referred to a psychiatrist for that reason, that those factors would indicate the Appellant's adjustment disorder with depressed mood was as a result of that fact rather than any pain in her back."
[51] Dr Chau's response was that she agreed "but that she was looking at Ms Lovett's pain management discharge summary of 20 May 2011 which indicated that the Appellant had high anxiety and depression on discharge and that her depression could have been aggravated by being laid off work." [T1-61].
[52] Dr Chau had seen the Appellant once in 11 February 2013 but she was of the view that the Appellant had suffered mood swings after July 2010.
[53] The Appellant had advised Dr Chau that she was frustrated with her injury and not being able to work and that she could not sleep at night because of her pain.
[54] In her later report, Dr Chau noted that the Appellant had attended a pain management program at the Wesley Hospital between 9 and 20 May 2011.
[55] Ms Lovett provided a report on 20 May 2011. Ms Lovett had seen the Appellant during the period when she had participated in the Wesley Back Rehabilitation Program. The purpose of the consultation was to assess the Appellant's back condition and pain and to provide her with education to assist in managing the pain and to educate the Appellant in the physical and psychological issues surrounding the pain [T 2-6].
[56] In that report, the Appellant says that Ms Lovett was of the view that the Appellant was suffering a condition - DSM-IV 309.28 being an adjustment disorder with depressed mood. She stated that the Appellant's back problems had caused her to have some psychological issues.
[57] However, Ms Lovett, during evidence, stated that she had never made a formal diagnosis of any psychiatric or psychological disorder of the Appellant and she did not make any formal diagnosis of any psychiatric or psychological disorder in terms of the AMA Diagnosis Statistical Manual 1V [T 2-7].
[58] In fact, the recommendations made by Ms Lovett stated:
"The course of chronic pain can be characterised by variation in mood, stress levels and anxiety. At present Mrs Irving experiences significant psychological disability across these issues.
If Ms Irving is going to manage her condition and the adjustment to injury process well, she will require adjustment to injury counselling, including anxiety and depression management.".
[59] Dr Rowan had treated the Appellant since April 2011 and on four other occasions until July 2011.
[60] Dr Rowan referred the Appellant to Dr Jason Ray. Upon doing so, he noted that both Ms Lovett and Dr Ray indicated that the Appellant had psychological issues. Notwithstanding the Endep that was prescribed for the Appellant, she was still experiencing sleep difficulty.
[61] Dr Rowan said that the Appellant had been referred to him for the purpose of assisting her with her pain rather than for any psychiatric condition or assessment. The prescription Endep was given to the Appellant for the purpose of treating her for pain rather than as an anti-depressant. It was also prescribed to assist her with low mood rather than simply being prescribed for low mood [T 1-75].
[62] Dr Rowan made no diagnosis of the Appellant suffering from an adjustment disorder with depressed mood. All that could have been said by him was that the Appellant had a low mood or a mood disturbance [T 1-75].
[63] The Appellant's submission was that Dr Ray diagnosed the Appellant with an adjustment disorder with low mood and sleep disorder. He states that this was associated with her ongoing pain. He referred the Appellant to Dr New, Psychiatrist.
[64] The respondent stated, however, that Dr Ray said his impression was that the Appellant had an adjustment disorder with low mood [Exhibit 31].
[65] During cross-examination, Dr Ray had stated that he was not registered to practice in Queensland as a Psychiatrist or as a Psychologist and that the diagnosis of whether a person had a psychological injury was not his area of speciality.
[66] Dr Ray also stated that the "impression" that he had previously expressed was given to him by a medical practitioner who did not hold specialist qualifications in psychiatry or psychology [T4-8].
[67] Dr Morris' evidence was that the aggravation suffered by the Appellant of a pre- existing condition had ceased and any symptoms remaining were attributable to her underlying degeneration. He stated that the symptoms from the work injury would have lasted only three to four months [T 2-14].
[68] Dr Duke examined the Appellant on 10 October 2012.
[69] Dr Duke, in his consideration of the stressors which had caused the Appellant's condition of an adjustment disorder with depressed mood, stated:
"I think it is likely that Ms Irving's current mental health presentation has been contributed to by the ongoing nature of her pain as well as the restriction on her ability to continue in her usual work role. Despite support from her treating practitioner, there appears to have been difficulty from the workplace in finding a suitable work role for her within the store. The ongoing nature of this difficulty is contributing to the perpetuation on Ms Irving's mental health symptomatology." [Exhibit 30 p. 7].
[70] In considering the matter of the information given to various medical persons by the Appellant, Dr Duke was asked by Counsel for the Appellant whether, based upon the symptoms the Appellant had given to Ms Lovett in May 2011, whether he would have made a similar diagnosis if the Appellant had expressed the same symptoms to him. Dr Duke answered:
"… It ... it's difficult for me to say. I think one of the things we look at when we look at somebody's condition is – is the level of symptoms but also the level of
impairment. The history that was given to me in October 2012 by Mrs Irving and her husband was that she was coping until mid 2012, even though she did have symptoms and was distressed, she was coping and functioning relatively well and
it's the impairment of functions that is often is one of the – the threshold points for reaching the diagnosis. On the – that being said – on the basis of the description and
the assessment by the psychologist Elizabeth Lovett I'm, you know, that does sound consistent with the diagnosis of an adjustment disorder with mixed anxiety and depression".
[71] However, in re-examination, Dr Duke gave evidence concerning the history given to him by the Appellant and Mr Irving concerning the level of distress and limitations the Appellant had up until June 2012. Dr Duke's notes show that the Appellant said that whilst she was frustrated about the limits being imposed upon her by pain she was not pervasively depressed [T 3-66].
[72] During the consultation with Dr Duke, he stated that Mr Irving had said that "prior to June 2012 her pain in her life was bearable and manageable and the mood dropped markedly after that" [T3-66].
[73] Further Dr Duke's evidence in re-examination was that:
"…as a result of the pain, Mrs Irving was having a degree of emotional distress that
would be expected of anybody who is having chronic pain and, sort of, having a prolonged and difficult recovery. The impression I got from her and her husband was that her level of psychiatric distress had not crossed what I would consider to be
the diagnostic threshold for … a physical condition … it wasn't really until sort of
the middle of 2012 that that – her – her – symptoms worsened to the point where I
felt they had crossed the diagnostic threshold. That information obviously contrasts
with that obtained by the psychologist in early 2011 at the Wesley though".[74] Dr Duke stated that he believed that what had caused her to cross the diagnostic threshold in June 2012 was "the difficulty that she had meeting the medical restrictions imposed by her general practitioner and the forced removal from the
workplace as a result of that" [Respondent's submissions – point 81].
[75] The Appellant has relied primarily upon medical opinion in the course of its submissions.
[76] Brief reference is made to the evidence given by work colleagues Messrs Heinke, Bradfield and Lanham.
[77] The Appellant stated that Mr Heinke must have been unaware that she had advised the employer on 15 December 2010 that she was getting frustrated with herself and
depressed with the "whole injury … I really thought I would have fully recovered by
now". Also that she had said to the employer on 16 May 2011 I am just getting depressed with myself and just find myself crying through the night because I'm in pain". The evidence showed that Mr Heinke agreed that there was material before Kmart identifying that the appellant had psychological issues by May 2011 [Exhibits 6, 7, 23, 24, 25, and 26].
[78] Relevantly, the relevant references in those Exhibits are as follows;
Exhibit 6 dated 15/12/2010 – "I was going to book into someone who does deep
tissue therapy other than this option I really don't know what else to do. I'm getting frustrated within myself and getting depressed with the whole injury, I really thought that I would have fully recovered by now".
Exhibit 7 dated 16/3/2013– "I do need to be at work as being home I am just
getting depressed within myself and just find myself crying through the night
because I am in pain."
Exhibit 23 – (a report from "Stay at Work Files" of Kmart dated "Kelly is upset
with herself as she thought it would all go away by now and is feeling pressure
from her fellow team members as she takes pride in her work ….. dated
20/8/2010"
"Kelly came to me upset and feeling "over it" sick at being in pain. Stated report
from independent specialist was all wrong ….."
"Spoke to Kelly re how coping with 6 hr shifts – she's going home crying because
of the pain after 4 ½ hrs she's struggling….."
Exhibit 24 – This exhibit is a Qld – Injury Services Workers' Compensation WC Note "Claims Review Summary dated 27/06/2011 which states inter alia that: "Adjustment to Injury Counselling (previously offered by IMA on several
occasions but TM chose not to accept". "Yellow Flags – "Pain focus & blame focus" with high levels of emotional overlay demonstrated during times of verbal communication. TM mentioned legal action. Outlook is very guarded given the amount of time it has taken for recovery".
Exhibit 25 – This exhibit is a Qld – Injury Services Workers' Compensation WC note dated 17/06/2011 which states: "IMA attendance at discharge meeting at Wesley, on second last day of Back care Program. Consensus of opinion was TM has psychological issues some relating to earlier life issues, overshadowing her current work related injury issues".
Exhibit 26 – This exhibit is a Qld Injury Services Workers' Compensation WC
note dated 1/3/2011 which states: "TM advised that she is still experiencing pain
and was quite emotional on the phone"[79] The Appellant said that Mr Bradfield had told her that performing half her job was not in Kmart's interest [T 3-43]. Mr Lanham's evidence, from the Appellant's perspective, centred upon prior complaints having been made concerning the counter height at Kmart about which nothing had been done.
Consideration of the Evidence and Conclusion
[80] Consideration needs to be given to whether the Appellant's adjustment disorder with depressed mood was caused by the pain that she was suffering from the physical injury she suffered to her lower back on 26 July 2010.
[81] The Appellant states that there is medical evidence to support the claim she has made. It is stated that this evidence was given by Dr Eivers, Dr Ray, Dr Rowen and Ms Lovett.
[82] It is the Respondent's contention that there was no medical evidence before the Commission of any contemporaneous diagnosis that the Appellant suffered an adjustment disorder with depressed mood no later than June 2011.
[83] In considering this point and the Appellant's assertion of medical evidence to support her claim, I have considered the evidence given by Dr Eivers, firstly.
[84] In my view, Dr Eivers makes it clear in his evidence that the reason for the Appellant's decompensation related to her not being permitted to continue to work with Kmart in September 2012 [T3-52].
[85] Each of Dr Ray, Dr Rowan and Ms Lovett made no diagnosis of the Appellant suffering from an adjustment disorder with depressed mood at or before June 2011.
[86] Further Dr Chau's report was presented well after June 2011 and Dr Duke's opinion was that the Appellant had not crossed any diagnostic threshold for an adjustment disorder until June 2012 when the Appellant was in dispute with Kmart concerning her return to work.
[87] While it is claimed by the Appellant that the employer was aware of her depression by May 2011, the information in the employer's hands at that time primarily related to the Appellant's pain. There are references to depression, but those fall far short of a diagnosis given by any medical practitioner that she was suffering from depression and had done so since her injury in 2010. The evidence shows that there was no diagnosis of depression after 2010 and before June 2011 from any medical practitioner and the employer at no time had been advised so. Significantly, the Applicant was frequently visiting her General Practitioner, Mr Eivers during that time and he first referred to depression in his notes in 2012.
[88] In cross-examination, the evidence of Dr Eivers was that he had seen the Appellant from around October 2010 through to September 2012. The Appellant had been prescribed Endep for pain. Dr Eivers elaborated upon the use of Endep saying that : "Endep or Amitriptyline is prescribed for a multiplicity of problems, it can be prescribed for depression; it is an old, very old tricyclic antidepressant. It's not generally these days as a first line antidepressant. It is probably more commonly prescribed certainly in general practice or neuropathic pain or even bladder symptoms." [T3-55].
[89] Council for the Appellant referred Dr Eivers to comments made by the Appellant regarding her feelings of frustration and depression. The dates where references were made were 15 December 2010, "feeling frustrated and depressed", March 2011 "emotional", 14 March 2011 "to be over it", 16 March 2011 "mildly depressed as assessed by Wesley Hospital". Dr Eivers was asked "does that coincide with how you interpret her condition in that period" to which Dr Eivers responded "I would say that mild depression has certainly been the case".
[90] In re-examination, Dr Eivers confirmed that he had referred the Appellant to a Psychiatrist on 6 September 2012 because she had told him she was depressed because of "the protracted nature of the work, that she was not being permitted back to work" [T3-52].
[91] During the periods of treatment by Dr Eivers of the Appellant, from 2010 to 2012 he confirmed that he had never prescribed any medication to her for depression nor did he sign any Workers' Compensation Certificates making any reference to mild depression. Notwithstanding that he had advised Counsel for the Appellant that he thought the Appellant had suffered from 'mild depression' during the periods mentioned, he had not treated her for it and the only occasion upon which he reference to depression in his notes was when he referred to a Psychiatrist in 2012.
[92] In my view, the Appellant's adjustment disorder with depressed mood was not caused by pain from her lower back injury. Medical evidence was to the effect that the Appellant was coping with that pain and continued working from July 2010 until June 2012 when her employer stood her down from work.
[93] I have accepted that there was no medical evidence before the Commission of any contemporaneous diagnosis that the Appellant suffered an adjustment disorder with depressed mood no later than June 2011.
[94] I have accepted that the Appellant's adjustment disorder with depressed mood was as a direct result of her wanting to continue work for her employer and being stood down from that work in June 2012.
[95] The Appellant's General Practitioner, who had seen the Appellant consistently during the period in contention in this matter, is of this view.
[96] Upon advising Dr Eivers of her depression at the time of being stood down from work in July 2012, Dr Eivers referred the Appellant to a Psychiatrist.
[97] It is found that:
The Appellant’s adjustment disorder with depressed mood did not develop no
later than June 2011; and
The Appellant’s adjustment disorder with depressed mood developed after June
2012 when she was stood down from work by K-mart in circumstances when
she wanted to return to work and the ensuing dispute with K-mart.[98] The application is dismissed and the Appellant is to pay the Respondent’s costs of
0
0
0