Jafreen and Comcare (Compensation)

[2020] AATA 4652

Jafreen and Comcare (Compensation) [2020] AATA 4652 (19 November 2020)

Division:GENERAL DIVISION

File Number(s):      2018/0836 & 2018/6786

Re:Tania Jafreen

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Mrs J C Kelly, Senior Member

Date:19 November 2020

Place:Sydney

In proceedings 2018/0836, the reviewable decision made on 9 February 2018 which affirmed a decision dated 15 December 2017 to decline liability for sprain of shoulder and upper arm (unspecified) under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) is affirmed.

In proceedings 2018/6786, the reviewable decision made on 16 November 2018 affirming a decision dated 18 October 2018 declining liability under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) for sprain of unspecified site of shoulder & upper arm (bilateral); hand sprain (bilateral); sprain of unspecified site of back and neck sprain is affirmed.

...........................[sgd]......................................

Mrs J C Kelly, Senior Member

CATCHWORDS

COMPENSATION – workers’ compensation – Commonwealth employee – whether liability should be accepted under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) – upper limb injury – whether pain and symptoms attributable to a physical condition – consideration of medical evidence – decisions under review affirmed

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 5A, 14

REASONS FOR DECISION

Mrs J C Kelly, Senior Member

19 November 2020

Introduction

1. There were two proceedings before the Tribunal. In proceedings 2018/0836 the reviewable decision made on 9 February 2018 affirmed a decision dated 15 December 2017 to decline liability for sprain of shoulder and upper arm (unspecified) under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act).

2. In proceedings 2018/6786 the reviewable decision was made on 16 November 2018 affirming a decision dated 18 October 2018 declining liability under s 14 of the SRC Act for sprain of unspecified site of shoulder & upper arm (bilateral); hand sprain (bilateral); sprain of unspecified site of back and neck sprain. The Applicant did not press this claim. If follows that the reviewable decision should be affirmed.

3. In proceedings 2018/0836, the question I have to decide is whether the Applicant, Ms Jafreen, suffered an injury to her left shoulder and upper arm as a result of carrying out her work duties from 21 August 2017 until 5 October 2017. The case for Ms Jafreen is that they were. The Respondent argued that she did not suffer a physical injury but developed pain in response to doing what she considered menial physical duties when she wished to advance her career, having begun a graduate diploma in HR and completed a diploma in management in Australia, and holding other tertiary qualifications including a Master’s degree from Bangladesh.  She was seeing others advance in their careers when she did not. 

   The evidence

   Ms Jafreen

4. Ms Jafreen provided statements dated 4 June 2018 and 30 January 2020 and gave oral evidence.  

5. She is an employee of the Department of Foreign Affairs and Trade (the Department).  She commenced employment with the Department in Sydney, in about April 2012, having previously worked in various offices and banks. She left a bank after returning from maternity leave and trying to get her former job back.  There was friction with her supervisor.  She began working in the Corporate Services Team of the Australian Passport Office (the APO) where she did data entry, manual checking of documents, stamping documents received, photocopying, scanning, sorting, and binding documents. She regularly used heavy duty staplers, label makers and a barcode scanner, archived documents into boxes, operated heavy multi-bay compactuses, and escorted cleaners around the premises by opening and closing all heavy fire-proof doors.

6. Ms Jafreen is right-handed.  In about March 2015 she noticed pain in her right arm and hand. She claims that she reported it to her supervisors and a workplace assessment was undertaken and some modifications made. There was no change to her tasks.

7. Ms Jafreen was offered a three-month rotation in the Notarial (authentication) section of the Australian Passport Office which is directly concerned with processing applications in compliance with the Hague Convention. For her it was “a skills development opportunity”. She commenced the rotation on 21 August 2017.  She was in training for a week and took planned recreational leave from 4 to 8 September and then worked continuously until 5 October 2017. 

8. Overall, she found that work more interesting and fulfilling than her prvious work at the APO however many of the tasks were menial and repetitive.  She had had approximately one week of training before beginning the role. She claims that the role involved sorting mail that comes in several times a day. The mail can contain parcels and envelopes that were quite large containing multiple applications. She would regularly have to use a letter opener and sort the parcels into the appropriate system. She had to authenticate documents which required using a heavy hole punch to make a hole through large documents. She would often have to use two hands to lever the documents given the existing pain in her right arm. She noticed that the pain increased with the tasks being undertaken. She regularly used a label printer which involved a lot of reaching. She used an embossing machine which required her standing up and pressing down with her left hand heavily on the document to secure the ribbon and embossing.  There were up to 94 embossings every day. She had to go up and down stairs between two levels carrying files and documents or if using a document trolley, had to go in and out through heavy fire-proof security doors to access the lift which required considerable force to push and keep open when tugging a trolley.  She estimated using those doors a dozen times a day or more.  During her oral evidence Ms Jafreen said that she also escorted visitors including tradesmen between floors.

9. Ms Jafreen experienced discomfort affecting her left shoulder and neck on the left side soon after she started the job which graduated to low grade pain in the same area and radiation down the left arm and to some degree the right. The pain diminished or ceased altogether in the week she was on recreational leave in September.  After returning from leave, low grade pain on the left upper side of her body was fairly constant and more obtrusive when lying in bed on her left side. She did not really understand the origin or cause of the pain.

10. On 5 October 2017 she attended a physiotherapist, Mr Rick Kang, who found a clinical abnormality on abduction of the left shoulder and recommended rest and follow up.  She took sick leave after that and attended another physiotherapist at the same practice, Mr Adam Monteith, seven times in October, eight times in November, six times in December, and in 2018, three times in January and twice in February.

11. When asked about not raising her concern about her physical well-being until after 5 October 2017, Ms Jafreen said that there was a problem but the pain came and went and was hard to predict. It was only when she found she needed physiotherapy and may need time off that she reported it.

12. Ms Jafreen first consulted Dr Hadrian Lee, general practitioner (GP) about the pain on 9 October 2017.  He referred her for an ultrasound performed on 12 October 2017.  She consulted Dr Lee again on 13 October 2017.   She then consulted her regular GP Dr Angela Zhou at the same practice on 16 October 2017. Dr Zhou issued three graduated return to works (RTW) certificates from 17 November 2017 to 12 January 2018.  An MRI was performed in January 2018.   

13. On 13 November 2017 Ms Jafreen consulted her former regular GP Dr Kieran Nixon at another practice after Dr Zhou told her she had maternity leave coming up.  Dr Nixon issued sequential graduated RTW medical certificates for the period 8 February 2018 to 15 August 2018.  Dr Nixon referred Ms Jafreen to rheumatologist and pain specialist, Professor Milton Cohen, whom she first consulted on 25 January 2018.  She remains under his care. Professor Cohen referred Ms Jafreen for Feldenkrais treatment, a type of exercise therapy, with Margaret Kaye who provided two reports dated 18 April 2018 and 12 June 2018.  Ms Jafreen attended a total of 15 weekly sessions commencing 15 February 2018, which she found helped to reduce pain, increase mobility and build strength in her upper arms and body.

14. At the time of the hearing, Ms Jafreen had ceased the Feldenkrais treatment because of cost but continued with physiotherapy, psychological assistance and medication. She was prescribed Norgesic to ease tightness in her upper body and antidepressants, first Mirtazepine and later Amitriptyline, to help her sleep.

15. A rehabilitation provider was appointed to manage Ms Jafreen’s return to work and on 20 November 2017 she returned to work on a graduated return program in the Corporate Services Team, that is her old team, commencing four hours per day three days a week. That was increased to 7½ hours per day three days per week and then full-time when Professor Cohen issued a final work capacity certificate on 30 October 2019.  During this time, Ms Jafreen has been moved from corporate services to passport client services/support which mainly deals with passport applications. Her work involves processing applications and handling related correspondence, destroying redundant passports, recordkeeping, and some client counter services.

16. In her 30 January 2020 statement, Ms Jafreen wrote:

    Since starting in the APO I’ve had 6 or 7 direct supervisors and in the past there’s been tension with some of them. This partly goes to what I perceived as stifling my professional development – I was for instance given a cashier’s role which limited opportunity for financial skills development because of financial chain of custody protocols. At other times and particularly after returning from injury my job tasks were very limited – mainly data entry. The move to passport client services/support was positive partly because it distanced me from the restrictive approach of my previous supervisor. While I’m not ambitious I do have aspirations to some kind of career development – to more interesting and fulfilling work. There’s a sense in which I feel like an outsider and that my skills haven’t been recognised and nurtured.

17. During cross-examination, Ms Jafreen said that she considered embossing menial and that she knew the job would involve processing but not the high volume of embossing.  She believed that she had shown the capacity to be a leader and the RSI issue was not on-going. (I understand that was a reference to the problem she had in March 2015 summarised in paragraph 6.)  She finds her current role more satisfying. She said that she wanted a more academic, intellectual role than a physical role.

18. Ms Jafreen submitted her workers compensation claim form on 16 October 2017. She claimed for the condition “shoulder injury”.  The information she supplied was typed.  She reported that she was undertaking authentications of documents which included a number of manual administration based tasks, including embossing, hole punching, clipping metals and placing ribbons for binding documents, open/sort incoming mail, carrying outgoing mail down stairs to the mailroom, carrying day to day clients documents from upstairs to downstairs to deliver to the counter and hot-desking.  After training and starting the assigned new tasks:

    … approximately a month later, all of a sudden pain triggered on my left side – shoulder, neck and arm.

19. Ms Jafreen claimed to have first noticed her symptoms on 6 October 2017 at 10 am.

    Mr Adam Monteith

20. Mr Adam Monteith, musculoskeletal physiotherapist wrote a letter dated 30 October 2017.  He stated that Ms Jafreen first presented to his practice on 5 October 2017 and consulted his colleague Mr Rick Kang.  Mr Monteith assessed Ms Jafreen on 9 October 2017. 

    She presented to me with constant pain, that was dull in nature, and was (at rest) 2/10 in the left neck, 3/10 in the left upper trap, and 2/10 in the left upper arm. The arm pain most definitely did extend beyond the elbow, to the forearm, hands and fingers.

    The Employer’s Statement

21. The Employer’s Statement dated 2 November 2017 set out Ms Jafreen’s duties in detail.  It claimed that the first time any issue relating to left arm hand pain was brought to the Department’s attention was when Ms Jafreen advised her supervisor by email on Friday 6 October 2017 that she had a physiotherapist appointment for her left hand on Monday 9 October 2017.[1]  The Supervisor statement was Attachment B and Table of Work Statistics (Notarials) was Attachment C.[2]  The latter document sets out the number of “embossings” Ms Jafreen carried out.

    [1] T7/29 (2018/0836).

    [2] T7/31 and T7/32-33 respectively (2018/0836).

    Rehabilitation

22. On 17 November 2017, Ms Jafreen was certified for four hours, three days per week, Monday, Wednesday and Friday with no repetitive manual work involving upper limb, eg binding, stapling, clipping, hole punching, embossing etc, and other restrictions/time breaks.[3]

    Dr Sandra McBurnie

    [3] T14/45 (2018/0836).

23. Dr Sandra McBurnie, consultant occupational physician, prepared a report dated 13 December 2017. She reviewed various documents and interviewed Ms Jafreen on 4 December 2017. She set out a lengthy record of the interview and a comprehensive summary.  She recorded the date of injury as 6 October 2017. 

24. In addition to her left-side symptoms, Ms Jafreen told Dr McBurnie about developing pain in her right thumb and forearm in 2015.  Some modifications were made to her workstation. The pain reduced but did not resolve completely.  She reported increasing symptoms in her right upper limb when swiping and opening doors. Her new role required her to move between two floors which required her to swipe using her right hand to open the door two or three times to move from one floor to the other. She also reported increasing pain carrying bundles of documents.

25. Dr McBurnie’s answers to questions included the following.  She diagnosed non-specific muscular pain around the left side of Ms Jafreen’s neck and upper back and pain around the right thumb. The diagnosis is not any more specific as the symptoms do not suggest a specific local identifiable lesion. There does not appear to be a significant work related factor contributing to the condition.  Symptoms first appeared when Ms Jafreen was doing the training. At that time, the amount of upper limb use required did not appear to be substantial enough to cause the symptoms and progression described. There were no factors, either employment or non-employment related, that would account for the development of symptoms of severity described over the timeframe described.

    Dr Kieran Nixon

26. On 23 January 2018 Dr Kieran Nixon referred Ms Jafreen to Professor Cohen for an opinion and management of left neck pain and left periscapular pain, following work denying liability for the claim saying that the mechanism for the use of the embosser could not cause cervical, thoracic or shoulder pain.[4]  Dr Nixon provided a history that expected authentications per day was 40-80, the maximum Ms Jafreen achieved was 46, two days with 43 and 40 and the other days below 40.  Initially the pain was mild and ceased during the week she had off work. The pain got worse when she returned to work using the embosser again.  She saw the physiotherapist on 4 October with left neck pain and terrible tearing feeling at top of left scapula and inside top left shoulder and could not abduct her left arm past 90 degrees.  She feels dizzy when the pain is worse.  She also pushed heavy fire doors at least 12 times a day to check mail and go to the toilet, using her left hand which gives her a pinch feeling in the top of her shoulder. She reported no weakness and no change of sensation in her left arm. She described her new position on return to work in November 2017 as a high stress front of house customer service role and when she is anxious she feels dizzy and is frightened she may fall over.

    [4] T7/18 (2018/6786).

    Professor Milton Cohen      

27. Reports from Professor Milton Cohen dated 29 January 2018 and 8 April 2018 were in evidence[5] and he gave oral evidence.He saw Ms Jafreen for the first time on 25 January 2018, and then on 4 April 2018 and several times thereafter.  He had also prepared reports that were not in evidence.  

    [5] T8/20 and T9/23 respectively (2018/6786).

28. In his report to Dr Nixon dated 29 January 2018, Professor Cohen recorded the following.  Ms Jafreen developed pain in the back of the left shoulder, the neck and the back of the right arm on or about 6 October 2017.  Her work included manual embossing which was quite repetitive using her left (non-dominant) upper limb. She used a hole punch to thread eyelets and had to manoeuvre security doors when carrying documents between two levels.  She kept working but ultimately was unable to raise her left arm.  Her pain tended to increase during the six weeks she was off work from 9 October to 20 November 2017.  

29. Professor Cohen had read Dr McBurnie’s report.  In his opinion:

    The biomedical contribution to Ms Jafreen’s predicament is fundamentally biomechanical and reversible. This is a posture and usage-related hypomobility of the upper thoracic and lower cervical spine with radiation to the left arm. There are no features to suggest underlying structural disease or damaged nerve root impingement. The actual structures from which the pain is radiating could be any in the thoracic spine including the T4-6  articulations but I suggest the upper cervical spine is not part of that. It does seem implausible for it to be claimed that this problem has nothing to do with the nature of Ms Jafreen’s work tasks, especially considering their ergonomic requirements including performance by her non-dominant upper limb. By contrast, I would also argue strongly in favour of a causal relationship between the nature of her work tasks between August and October and the onset and persistence of her current symptoms. However it is clear that in the psychological and social dimensions Ms Jafreen is quite worried about re-injury, as well as this interruption to her attempt to take her career forward. There is also a theme of adverse interpersonal conditions at the workplace.

    I have tried to assure Ms Jafreen of the benign and biomechanical basis of these problems which should respond well to an approach such as the Feldenkrais technique for its emphasis on posture and movement retraining. Fundamentally she has fallen into a vicious cycle with respect to the upper thoracic spine we should be able to be broken…

    I also hope to have encouraged Ms Jafreen to divert her attention from concentrating on this problem and rather focusing on ways around it including pursuing sources of pleasure in her life. Fortunately I understand that the current workplace is supportive. However it is at the workplace – in the social dimension of addressing the “blue flags” – that most attention needs to be given. It is important that the ergonomics of work tasks are made to fit the person – not the other way around. With a supportive supervisor and hopefully a return to her trajectory of career enhancement, I expect a good outcome.

30. Professor Cohen reviewed Ms Jafreen on 4 April 2018.  He reported the following.  She was facing a tribunal hearing the next week because her reconsideration was declined in February.  Ms Jafreen is experiencing considerable anxiety arising out of her perceived treatment at the workplace, specifically not being given work tasks commensurate with her position and other factors.  She had lost trust in the workplace.  She had become socially withdrawn.

    With respect to the biomedical dimension of her predicament, Ms Jafreen is responding to Feldenkrais therapy. This aspect however is the least of her problems. (Emphasis added.)

    In my earlier report I identified factors in the psychological and social dimensions of Ms Jafreen’s predicament, including her concern about re-injury, her stalled career and the theme of adverse interpersonal conditions at the workplace. I did suggest that, “…it  is at the workplace – in the social dimension or addressing the ‘blue flags’ – that most attention needs to be given”. However it does seem that my earlier appreciation that her workplace is “supportive” was incorrect. 

    It remains my view that the vicious cycle into which Ms Jafreen has fallen is fundamentally an industrial, not a medical; problem. The biomedical aspects are benign and reversible, but the psychological aspects, driven as they appear to be by factors in the work environment, cannot be resolved in the current circumstances. In other words, I see no resolution unless and until Ms Jafreen can be transferred to a more appropriate working environment within the Passport Office.

    From the narrow “medical” viewpoint, I support Ms Jafreen’s ongoing attendance for Feldenkrais therapy and I note that she has had support from a clinical psychologist, which should assist her in cognitive techniques of distress management including pursuing sources of pleasure in her life. However the anxiety that is evoked by her attendance at the current workplace will be a limiting factor here.

1. During his oral evidence, Professor Cohen said the following. He had no occasion to question that Ms Jafreen was other than an honest witness.  He has been practising in pain medicine for more than 50% of his career. He conceded that he did not have details of Ms Jafreen’s work such as the number of documents embossed on a day or that the following day she did none and was not standing at a table embossing all day.  When a summary of Ms Jafreen’s  embossing work from 28 August 2017 to 4 October 2017 was put to Professor Cohen and that embossing was not an overuse of itself, Professor Cohen said “Not in most cases”.  In Ms Jafreen’s case he thought the workplace needed attention. 

2. In re-examination Professor Cohen confirmed that he had not changed the view he expressed in his 29 January 2018 report that it was implausible that Ms Jafreen’s symptoms had nothing to do with the nature of the workplace. 

   Dr Chris Browne

3. Dr Chris Browne, rheumatologist, saw Ms Jafreen on 30 April 2018 and reported on 13 May 2018.[6]  His diagnosis was occupational overuse syndrome.  He was cross-examined closely by Mr Gollan, the Respondent’s counsel, about the extent of the physical work Ms Jafreen was required to carry out and about her disappointment with the menial nature of the work she was doing compared with her ambition.  At the end of the cross-examination, Mr Gollan put to Dr Browne that if someone was stressed by not progressing as expected based on their qualifications, that would result in tightness in their muscles.  Dr Browne did not agree.  He said that he was aware of some friction at work and that Ms Jafreen was not entirely satisfied.  He did not consider that a significant factor in the production of her symptoms.  It was a side issue. He maintained his opinion that Ms Jafreen’s work involved a high physical input.  It included opening security doors and data entry as well as embossing. Embossing was quite a physically demanding task.  Had she not been doing that it is less likely that she would have got her symptoms. There was relative overuse.  The number of repetitions was fairly high. Once a condition is established, capacity is reduced.  A neuropathic basis can be caused. 

   [6] T13/31 (2018/6786).

4. Mr Gollan put to Dr Browne the opinion of Professor Cohen, Associate Professor McGill and Dr McBurnie that Ms Jafreen was dissatisfied with her work which did not meet her expectations.  Dr Browne maintained that that concern did not fully explain Ms Jafreen’s clinical presentation.

5. Dr Browne agreed that the tests he conducted did not disclose a diagnosis and that he proceeded on the basis of Ms Jafreen’s complaints of tenderness and pain despite no objective findings.  He agreed that the history was important and that he relied on Ms Jafreen’s report that she had done 42 items or more of embossing every day for five weeks.  Embossing was the major contributor to her condition. He said that it becomes overuse when it causes symptoms which make the task difficult.  He agreed that absent the number of items Ms Jafreen had reported, he may question that it was an overuse problem.

6. Mr Gollan read to Dr Browne the statistics provided by Ms Jafreen’s supervisor for the period 28 August to 6 October 2017, with the injury claimed to have occurred on 5 October 2017.    Dr Browne said that he did not have access to that information and accepted that he would possibly question whether overuse was related to embossing and that it was less likely. He went on to say that Ms Jafreen also did other high physical input activities, including opening security doors and data entry and that the number of repetitions were fairly high and once a condition is established there is less capacity.  There is susceptibility and other tasks.  When Dr Browne saw Ms Jafreen she was doing a less demanding job and was getting better.  Her pain level was down and she was on track for recovery. In 2017 her workload was significantly higher.

7. In re-examination, Mr Stretton, Ms Jafreen’s counsel, stated that on 4 October 2017 Ms Jafreen did the largest number of embossings, 46.  Dr Browne said that it may have been the trigger which passed her capacity to work beyond.  It was too much for the musculo-skeletal system.

   Associate Professor Neil McGill

8. Associate Professor Neil McGill, rheumatologist, saw Ms Jafreen on 2 July 2018 and prepared a report on the same day and a supplementary report dated 17 February 2019.  In summary, he could not find a physical reason for Ms Jafreen’s presentation. In his opinion, the appropriate treatment was psychological.

9. During his oral evidence, Associate Professor McGill said that no-one doubted Ms Jafreen’s complaints of pain. In his opinion, they were not attributable to a physical condition.

10. In cross-examination, Associate Professor McGill said that it was not unreasonable when a person presented with somatic symptoms and no physical underlying condition to be guided in an exercise program but ongoing physical therapy for a non-physical problem is not a good idea. He adhered to his view that Ms Jafreen’s problem was fundamentally an industrial one and not a medical one. Any physical contribution was in the past. 

11. When Mr Stretton put to Associate Professor McGill that Ms Jafreen’s symptoms abated when she was removed from the duties causing her symptoms and that removal and her treatment had been appropriate, he said that a change in duties does not allow determination of which aspect of the environment may have been responsible for the symptoms – Ms Jafreen’s  unhappiness in her work environment or her physical duties.  He said that if embossing was the cause of symptoms, he would have expected the symptoms to have resolved completely when she stopped and would have been able to resume other activities, but that was not the history he had been given. In July 2018 Ms Jafreen was on very restrictive light duties and her current symptoms had not changed in six months.  That is not what one would expect from a physical injury from embossing or keying in October 2017.

    Dr Azhar Naseeb Khan

12. Dr Azhar Naseeb Khan, consultant occupational physician, saw Ms Jafreen on 24 September 2018 and wrote a report of the same date. In his opinion, there was no physical reason for Ms Jafreen’s symptoms, given the time that had elapsed since she did the work that she claimed caused her symptoms.In his opinion there is a significant psychosocial component to her presentation, and most muscular skeletal symptoms would have resolved by that time.

13. When Mr Stretton put to Dr Khan that Ms Jafreen’s repetitive work caused her pain in her left shoulder, arm, spine and hand which abated when she stopped work, and returned when she resumed work,  Dr Khan acknowledged that but repeated that she had not been doing those duties for almost a year when he saw her but she continued to complain of pain in her torso.  He would not have expected the effects to have lasted for such a long period. It did not mean that she did not have symptoms but that was something different from her physical condition.  Dr Khan thought Associate Professor McGill had explained Ms Jafreen’s condition quite well.  In his opinion, sprains and strains resolve within four weeks to three months.  The clinical examination has to match with the symptoms.  Ms Jafreen has a normal range of movement in her neck and upper limbs. Dr Khan said that the psycho-social component of Ms Jafreen’s condition should be assessed by a psychiatrist. Medicine teaches a bio-social model.  He was not making a specific diagnosis but commenting on factors that affected her health.

    Dr Frank Kai Tai Chow

14. Dr Frank Kai Tai Chow, consultant psychiatrist, assessed Ms Jafreen on 12 December 2018 and prepared a report dated 27 December 2018.  He reported a series of job dissatisfactions throughout Ms Jafreen’s employment with the Department, including with the person who became her supervisor in 2016 and was her supervisor when Dr Chow saw her, whom she described as very controlling. She made a number of other criticisms, including that the supervisor and her colleagues have “buddied up” and do not want to give other people opportunities.  Ms Jafreen had been unable to get around that supervisor, although she was nicer to her after Ms Jafreen lodged her workers compensation claim. She was fearful of getting mentally injured if she continued working with her supervisor. Ms Jafreen reported ongoing shoulder and arm pain. She has been seeing a psychologist since 2018 who she is now seeing weekly.  When she tenses up she still gets pain.  She was having Feldenkrais therapy.  She was improving physically.  

15. Dr Chow diagnosed somatic symptom disorder.  In his opinion, Ms Jafreen has significant personality vulnerabilities and tendency of perceived maltreatment and personal difficulties at work.  Her difficulties were constitutional and not employment related.  Dr Chow liaised with Mr Tom Gross, Ms Jafreen’s psychologist. They agreed a different supervisor would be ideal.  Dr Chow reported liaising with Professor Cohen who stated that Ms Jafreen’s pain symptoms are psychologically driven.

    Submissions

    Mr Stretton, Applicant’s counsel

16. Mr Stretton made the following submissions.

17. Ms Jafreen was a witness of truth. I should accept the evidence of Professor Cohen that it is implausible that Ms Jafreen’s condition has nothing to do with the nature of her tasks. She was pushing and pulling heavy fire doors and embossing.  Professor Cohen’s evidence is supported by Dr Browne, Ms Margaret Kaye, the Feldenkrais practitioner, and Ms Jafreen’s treating general practitioners. He emphasised that Ms Jafreen’s symptoms abated when she ceased the embossing work.  On 4 October 2017 after embossing 46 documents she went to the physiotherapist. Physical treatment, physiotherapy and Feldenkraus improves Ms Jafreen’s condition.  It is not psychosomatic.

18. The Respondent did not rely on the report of Dr McBurnie, consultant occupational physician.  I should conclude that Dr McBurnie did not assist the Respondent’s case. 

19. Dr Khan’s evidence should not be accepted for two reasons.  First, despite not having psychological or psychiatric qualifications, he expressed the unequivocal opinion that there was a significant psychosocial component to Ms Jafreen’s condition.

    Mr Gollan, Respondent’s counsel

20. Mr Gollan made the following submissions.

21. The issue is from what did Ms Jafreen suffer?  I do not have to decide that she is untruthful. It was not the role or skill set of Dr Khan or Associate Professor McGill to decide that Ms Jafreen was untruthful.  In summary, their opinions were that the physical injury was not the cause of her problem and it was appropriate to have her assessed to see if there was a psychological cause.

22. Dr Chow, psychiatrist, spoke to Professor Cohen and Ms Jafreen’s psychologist.  Dr Chow explained her personality vulnerabilities, her recurrent difficulties with supervisors and concluded her symptoms were psychosomatic. Professor Cohen told Dr Chow that her symptoms were psychological.

    Consideration

23. Did Ms Jafreen suffer a physical injury arising out of, or in the course of her employment from 21 August 2017 to 5 October 2017?[7]  Her claim for workers compensation was lodged on 16 October 2017.

    [7] See s 5A(1)(b) of the Act.

24. The evidence of Dr McBurnie, who was the first specialist medical practitioner to examine Ms Jafreen, and of Associate Professor McGill and Dr Khan is that Ms Jafreen’s symptomatology is not caused by a physical injury.  I prefer their evidence to the opinions of Professor Cohen and Dr Browne and other professionals treating Ms Jafreen that she has suffered a physical injury in the course of her work duties from 21 August 2017 to about 5 October 2017, particularly embossing.   

25. Neither Professor Cohen nor Dr Browne engaged in detail with the work that Ms Jafreen did do during that six week period, which is critical.  Her report of the cause of her injury also evolved.  When Ms Jafreen saw Dr McBurnie on 4 December 2017 she said that she used her right upper limb to swipe and open doors.  She was referred to Professor Cohen after her workers compensation claim had been rejected on 15 December 2017.  The first reference in the evidence to Ms Jafreen pushing heavy doors with her left upper limb when she moved between levels is Dr Zhou’s letter dated 21 December 2017 in which she critiques Dr McBurnie’s report.  Dr Zhou said that Ms Jafreen reported using both her left and right upper limbs for those tasks.  Dr Nixon’s referral to Professor Cohen dated 23 January 2018 refers to the left upper limb only being used for that task.  Ms Jafreen repeated the claim that she used her left upper limb for this task to various doctors thereafter.   

26. I accept that if Ms Jafreen had not carried out the duties she did from 21 August 2017 until 5 October 2017, she would not have suffered symptoms.  But the explanation for the symptoms is not physical injury.

27. Professor Cohen  was clear in his report dated 4 April 2017 that at all times he held the view that:

    … the vicious cycle into which Ms Jafreen has fallen is fundamentally an industrial, not a medical; problem.

28. That is consistent with the opinions of Associate Professor McGill and Dr Khan.

    DECISION

29. In proceedings 2018/0836, the reviewable decision made on 9 February 2018 which affirmed a decision dated 15 December 2017 to decline liability for sprain of shoulder and upper arm (unspecified) under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) is affirmed.

30. In proceedings 2018/6786, the reviewable decision made on 16 November 2018 affirming a decision dated 18 October 2018 declining liability under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) for sprain of unspecified site of shoulder & upper arm (bilateral); hand sprain (bilateral); sprain of unspecified site of back and neck sprain is affirmed.

I certify that the preceding 60 (sixty) paragraphs are a true copy of the reasons for the decision herein of Mrs J C Kelly, Senior Member Kelly

............................[sgd]............................................

Associate

Dated: 19 November 2020

Date(s) of hearing:	9 and 10 June 2020
Counsel for the Applicant:	Mr G Stretton
Solicitors for the Applicant:	Michael Kreveld Legal
Counsel for the Respondent:	Mr M Gollan
Solicitors for the Respondent:	Australian Government Solicitor