KTKY and Comcare (Compensation) - [2015] AATA 309

KTKY and Comcare (Compensation) [2015] AATA 309 (8 May 2015)

Division General Administrative Division

File Numbers

2013/0186

2013/4143

2013/6692

Re

KTKY

APPLICANT

And

Comcare

RESPONDENT

DECISION

Tribunal
Deputy President S D Hotop

Date 8 May 2015

Place Perth
The Tribunal decides as follows:
Application 2013/0186
The decision under review is affirmed.
Application 2013/6692
The decision under review is affirmed.
Application 2013/4143
The decision under review is set aside and, in substitution therefor, it is decided that, for the purpose of determining the amount of weekly compensation for incapacity for work payable to the applicant, pursuant to s 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“SRC Act”), in respect of the compensable injuries relating to her neck and shoulders, for the period from 4 September 2000, the amount of her “normal weekly earnings” is to be calculated under s 8 of the SRC Act on the basis that her normal work hours in the following specified periods were as follows:
·from 4 September 2000 to 30 January 2005 – 25 hours per week;
·from 31 January 2005 to 28 October 2010 – 20 hours per week;
·from 29 October 2010 – 36.75 hours per week.

Application may be made to the Tribunal in relation to the costs of the proceeding in Application 2013/4143 within 14 days of the date of this decision. In the event that no such application is made by that date, the Tribunal orders, pursuant to s 67(8) of the Safety, Rehabilitation and Compensation Act 1988 (Cth), that the costs of that proceeding incurred by the applicant be paid by the respondent in accordance with Section 6.8 of the Tribunal’s Guide to the Workers’ Compensation Jurisdiction.
.......................[sgd].................................................
S D Hotop
Deputy President

CATCHWORDS
COMPENSATION – Commonwealth employees – applicant suffered compensable physical and mental injuries – applicant claimed compensation for incapacity for work resulting from physical injuries – applicant claimed compensation for permanent impairment resulting from physical injuries – applicant claimed compensation for permanent impairment resulting from major depressive disorder – amount of incapacity compensation payable to applicant – applicant’s “normal weekly earnings” – applicant’s post-injury work hours – applicant elected to reduce work hours in certain periods – applicant ceased to be employed by Commonwealth – reviewable decision regarding incapacity payments set aside – applicant suffered permanent impairment as result of compensable injury to neck and each shoulder – degree of permanent impairment resulting from each injury less than 10% – respondent not liable to pay compensation for permanent impairment in respect of applicant’s injury to neck and each shoulder – reviewable decision affirmed – applicant suffered permanent impairment as result of major depressive disorder and chronic pain disorder – applicant’s impairment resulting from chronic pain disorder indistinguishable from impairment resulting from major depressive disorder - degree of permanent impairment resulting from major depressive disorder 10% - respondent liable to pay compensation for permanent impairment and non-economic loss in respect of major depressive disorder – reviewable decision affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act1988 (Cth), s 4(1), s 8(1), s 8(10), s 9(1), s 14(1), s 19, s 24, s 27 and s 28
Guide to the Assessment of the Degree of Permanent Impairment (Edition 2.1), Part 1, Ch 5, Table 5.1, Ch 9, Tables 9.11a, 9.11b, 9.11c, 9.14 and 9.15
CASES
Canute v Comcare (2006) 226 CLR 535
Comcare v O’Connell [2013] FCA 111
Comcare v Simmons (2014) 220 FCR 102
Re O’Connell and Comcare (2012) 131 ALD 400; [2012] AATA 532
Robson v Military Rehabilitation and Compensation Commission (2013) 214 FCR 1
Telstra Corporation Ltd v Hannaford (2006) 151 FCR 253
REASONS FOR DECISION
Deputy President S D Hotop
8 May 2015
Introduction

KTKY (“the applicant”) has applied to the Tribunal for review of the following “reviewable decisions” of Comcare (“the respondent”) made under s 62 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“SRC Act”):
·a reviewable decision, dated 27 November 2012, whereby the respondent affirmed a determination that it was not liable to pay to the applicant compensation for permanent impairment and non-economic loss in accordance with ss 24 and 27 of the SRC Act in respect of her compensable physical injuries involving her neck and shoulders (Application 2013/0186);
·a reviewable decision, dated 26 June 2013, whereby the respondent affirmed a determination that the amount of compensation for incapacity payable to the applicant, pursuant to s 19 of the SRC Act, was to be determined on the basis that her “normal weekly earnings” were to be calculated under s 8 of the SRC Act on the basis of normal work hours of 25 hours per week from 4 September 2000 and 20 hours per week from 31 January 2005 (Application 2013/4143);
·a reviewable decision, dated 16 November 2013, whereby the respondent affirmed a determination that it was liable to pay to the applicant compensation for permanent impairment on the basis of a “whole person impairment” of 10% in accordance with s 24 of the SRC Act and compensation for non-economic loss in accordance with 27 of the SRC Act in respect of her compensable mental injuries, namely, “major depressive disorder, recurrent episode [sic]” and “chronic pain syndrome [sic]” (Application 2013/6692).
The Evidence
The evidence before the Tribunal comprised:
·the “T Documents” (T1–T47, pp 1–234) lodged by the respondent in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”) in Application 2013/0186;
·the “T Documents” (T1–T66, pp 1–265) lodged by the respondent in accordance with s 37 of the AAT Act in Application 2013/4143;
·the “T Documents” (T1–T74, pp 1–269) lodged by the respondent in accordance with s 37 of the AAT Act in Application 2013/6692);
·Supplementary T Documents (ST1–ST13) filed by the respondent on 4 February 2015 and tendered by the respondent (Exhibit R1);
·Exhibits A1–A15 tendered by the applicant;
·Exhibits R2–R4 tendered by the respondent; and
·the oral evidence of:
- the applicant and the following witnesses called by the applicant: Dr Kevin Norcott, Dr Stephen Proud, Dr Robert Will and Ms Erin Gandy;
- Dr Patrick Hanrahan and Dr Gemma Edwards-Smith (who were called by the respondent).
The Factual Background
The relevant background facts, as found by the Tribunal on the basis of the T Documents or as agreed between the parties, are as follows.
The applicant, who was born in January 1963, commenced employment with Centrelink in or about November 1990 and her employment duties included data entry, reception work and customer service. From July 1996 she was located at the Mirrabooka Centrelink office where her duties included data entry, new claims processing, customer service, reception work and telephone calls. On 29 October 2010 she was retired on invalidity grounds and thereby ceased to be employed by the Commonwealth.
On 25 March 1997 the applicant lodged with Centrelink a completed Claim for Rehabilitation and Compensation form whereby she claimed compensation under the SRC Act for an injury described as “(R) trapezius pain, exacerbation of pre-existing condition” which was sustained on Friday, 14 March 1997 and for which she first obtained medical treatment from Dr Joe Chamizo on Monday, 17 March 1997. (T4, 2013/0186)
By letter dated 15 April 1997 an officer of the respondent notified the applicant that a determination had been made rejecting her claim for compensation. (T6, 2013/0186)
Following a request by the applicant for a reconsideration of the abovementioned determination and the provision by her of a report from Mr Des Bushell, Physiotherapist, dated 24 April 1997, an officer of the respondent, by letter dated 20 May 1997, notified the applicant that a “reviewable decision” had been made revoking the abovementioned determination, and, instead, accepting liability for “an aggravation of [her] underlying neck and shoulder condition” with effect from 17 March 1997. (T5, T7, T8, 2013/0186)
On 1 July 2009, following a relevant determination and a relevant reviewable decision of the respondent, the applicant lodged with the Tribunal an application for review in respect of “secondary conditions”, namely, “bursitis of the right and left shoulders” arising out of her accepted physical injury (Application 2009/3012).
On 18 December 2009, following a relevant determination and a relevant reviewable decision of the respondent, the applicant lodged with the Tribunal an application for review in respect of “secondary conditions”, namely, “major depressive disorder with chronic pain disorder” arising out of her accepted physical injury (Application 2009/5982).
On 12 January 2011 the Tribunal, pursuant to s 42C(2) of the AAT Act, set aside a reviewable decision of the respondent, dated 14 December 2009 and, in substitution therefor, decided that:
“ the respondent is liable to pay compensation to the applicant, pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988 …, for the secondary conditions ‘major depressive disorder’ with ‘chronic pain disorder’, with a date of injury of 18 June 2008, arising out of the accepted condition ‘right trapezius pain, exacerbation of pre-existing condition’, which has a date of injury of 17 March 1997 …” (T38, 2013/6692)
On 9 February 2011 the Tribunal, pursuant to s 42C(2) of the AAT Act, set aside a reviewable decision of the respondent, dated 5 May 2009, and, in substitution therefor, decided that:
“ the respondent is liable to pay compensation to the applicant, pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988 …, for the secondary conditions ‘bursitis of the right and left shoulders’ arising out of the accepted condition ‘right trapezius pain, exacerbation of pre-existing condition’ which has a date of injury of 17 March 1997 …” (T23, 2013/0186)
On 29 February 2012 the applicant lodged with the respondent a completed Compensation Claim for Permanent Impairment and Non-economic Loss form whereby she claimed permanent impairment compensation for “Chronic Pain Syndrome [sic]” resulting from her accepted physical injuries on the basis of 12.5% impairment regarding her neck and 15.0% impairment regarding each shoulder, as assessed by Dr J Edelman, Rheumatologist. (T30, 2013/0186, pp 157–159)
By letter dated 1 August 2012 a delegate of the respondent notified the applicant that, having regard to a report of Dr Patrick Hanrahan, Rheumatologist, dated 12 July 2012, it had been determined that the respondent was not liable to pay compensation to her for permanent impairment under s 24 of the SRC Act on the ground that “[her] impairments [did] not reach 10% each for [her] cervical spine, left or right shoulders”. (T40, 2013/0186)
On 27 November 2012 a Review Officer of the respondent made a reviewable decision under s 62 of the SRC Act affirming the abovementioned determination of 1 August 2012. (T47, 2013/0186)
On 14 January 2013 the applicant lodged with the Tribunal an application for review of the abovementioned reviewable decision of 27 November 2012. (T1, 2013/0186)
On 19 February 2013 the respondent made a determination regarding the applicant’s “incapacity entitlements” under s 19 of the SRC Act on the basis of “normal weekly earnings” calculated under s 8 of the SRC Act on the basis of normal work hours of 25 hours per week from 4 September 2000 and 20 hours per week from 31 January 2005. (T58, T60, 2013/4143)
Following a request by the applicant for a reconsideration of the abovementioned determination, on 26 June 2013 a Review Officer of the respondent made a reviewable decision under s 62 of the SRC Act affirming that determination. (T64, 2013/4143)
On 16 August 2013 the applicant lodged with the Tribunal an application for review of the abovementioned reviewable decision of 26 June 2013. (T1, 2013/4143)
Meanwhile, on 1 May 2013 the applicant lodged with the respondent a completed Compensation Claim for Permanent Impairment and Non-economic Loss form whereby she claimed permanent impairment compensation in respect of “major depressive disorder”. (T55, 2013/6692)
By letter dated 7 August 2013 a delegate of the respondent notified the applicant that, having regard to a report of Dr Gemma Edwards-Smith, Psychiatrist, dated 15 July 2013, it had been determined that she suffered from a 10% degree of permanent impairment resulting from her compensable injury, namely, “major depressive disorder, recurrent episode and chronic pain syndrome [sic]” and that she was entitled to compensation for permanent impairment and non-economic loss under ss 24 and 27 of the SRC Act. (T64, 2013/6692)
Following a request by the applicant for a reconsideration of the abovementioned determination, on 16 November 2013 a Review Officer of the respondent made a reviewable decision under s 62 of the SRC Act affirming that determination. (T74, 2013/6692)
On 12 December 2013 the applicant lodged with the Tribunal an application for review of the abovementioned reviewable decision of 16 November 2013. (T1, 2013/6692)
The Applicant’s Evidence
The applicant tendered in evidence her signed witness statement, dated 15 December 2014 (Exhibit A1). She confirmed that its contents are true.
Paragraphs 1–40 of the applicant’s witness statement refer to (inter alia):
·her pre-Centrelink employment with Joyce Industries (a mattress manufacturer) and a child care centre;
·the commencement of her Centrelink employment in or about November 1990 and her initial employment duties;
·a compensation claim made by her in 1993 in relation to work-related symptoms in her neck and shoulders and pain radiating down her right arm suffered by her in her employment at the Morley office of Centrelink;
·her relocation to the Mirrabooka office of Centrelink in 1996 and her employment duties there;
·her suffering the relevant compensable physical injury on 14 March 1997 and her claim for compensation in respect of that injury;
·her subsequent gradual return to full-time duties until 17 April 1998 when she was involved in a motor vehicle accident;
·her subsequent total incapacity for work until 7 May 1998.
The applicant’s witness statement continues as follows:
“41. In or about May 1998, I gradually commenced to return to fulltime duties with Centrelink following my motor vehicle accident.
42.On … July 1999, my first child was born and I took off approximately one (1) year from my employment with Centrelink. A period of three (3) months was paid, the balance of the leave was unpaid.
43.I returned to work in or about July/August 2000 and returned to fulltime duties with Centrelink.
44.In or about the early part of 2001, I had another onset of the symptoms that I had experienced in 1997 and as a consequence, Dr Norcott reduced my hours to 25 hours per week.
45.What I did not appreciate at the time and I did not get any advice at the time, was that I could have made a claim for the difference between my fulltime hours and the hours that I was actually working.
46.When I experienced the onset of my symptoms, I discussed my situation with the Occupational, Health & Safety Officer, … and I asked her whether or not I ought to put in a claim. I was advised that they had some funds for physio and that I should undergo some physiotherapy treatment before considering making another claim.
47.In these circumstances, I did not make another claim but I had physiotherapy treatment.
48.I was reviewed by Dr Norcott in December 2003 and I note that there is a report (T11).
49.…
50.On … February 2003, my second child was born and I took approximately two (2) years off work on the recommendation of Dr Norcott.
51.In or about April 2005, I returned to work with Centrelink and I was working 25 hours per week. These reduced hours were on the advice of my doctor but once again, I did not understand and was not advised to apply for compensation for the balance of the hours that I could not work.
52.I saw a Dr Stephen Dennis at the request of Centrelink, on 6 October 2005 (T14 in Application 2013/4143).
53.At the time that I saw Dr Dennis, I was only working 20 hours per week due to my symptoms. These hours had been reduced by Dr Norcott, but once again I was not compensated for the loss of my hours.
54.In or around September 2005, my team manager, … wanted to increase my hours from 20 hours to 30 hours. The main reason she wanted to do that was because she wanted to be able to take time off however, we also had short staff problems at the time.
55.I complained to her about the request to increase my hours because of the fact that I had continuing symptoms and Dr Norcott had advised me to only be doing 20 hours per week.
56.My team manager denied knowing anything about my injuries or symptoms.
57.On 6 October 2005, I was sent by my team leader, … to see Dr Stephen Dennis (report at T14 in Application 2013/4143).
58.I continue [sic] to work the 20 hours per week. This was based upon Dr Dennis’ recommendation.
59.My understanding was that Dr Dennis had recommended that I continue on in light duties and that I should not be involved in any repetitive work. However, following my attendance with Dr Dennis, I was not only returned to my normal duties but also given additional duties in and around the Christmas period because this was the period that she wished to take off for vacation.
60.On 10 January 2006, I experienced a severe increase in my symptoms and felt unbearable pain in my neck/arms and hand. I reported the incident to the Occupational Health & Safety Officer, …
…
65.On 18 January 2006, I lodged a workers’ compensation claim on the basis of Dr Norcott’s advice. He advised me that his diagnosis was a flare up of my pre-existing injury which had occurred in 1993 (as I have stated earlier in this statement) which returned in 1997, 2001 and 2005.
…
68.On 30 January 2006, Dr Norcott put me on holidays for the period from 24 January 2006 until 3 February 2006 as he did not want me to undertake any light duties, although they had been offered at work, as my neck/arms/hands were still very painful.
69.He also sent me to have an injection in my right wrist, which was performed on 31 January 2006 at the Osborne Park Hospital by Dr John Carey.
70.On 6 February 2006, I again saw Dr Norcott who organised a splint for my right hand and a return to work program with … from Work Focus. Also, I was having physiotherapy on a regular basis.
…
74.However, despite this Return to Work Program being developed, I never was given duties which were consistent with the return to work program and I returned to my normal duties.
75.There was one (1) simple change from one (1) section of Centrelink to the other, but nevertheless the duties were the same.
…
80.On 17 March 2006, I had another appointment with Dr Norcott who recommended a new return to work program. Although this was a return to work program, it was also supposed to be observed by …, she did not follow the recommendations from Dr Norcott and I continued on with my usual duties.
…
86.On 17 May 2006, I had another appointment with my General Practitioner, Dr Norcott. He agreed to a new work program which had been suggested by …, who wanted me to work at reception.
87.Dr Norcott recommended that I do this work, only if there were enough breaks and an opportunity to change my posture.”

Paragraphs 88–168 of the applicant’s witness statement refer to (inter alia) her numerous medical attendances and treatments in the period for June 2006 to March 2009.
The applicant’s witness statement concludes as follows:
“ 169. The [sic] present time I continue to experience the following symptoms:
(a)Painful and stiff neck, when my neck becomes stiff it locks in position and I have difficulty moving it from side to side. I have to wear a warm towel around my collar.
(b)Pain radiating along my right shoulder to my right arm. I need to wear a splint to be able to use it when I do some tasks at home and when I do drive. Also I wear a sling to rest my arm.
(c)Sensation of pins and needles radiating down my right arm.
(d)In [sic] pain radiating down my left shoulder into my left arm. I need to wear a splint as pain is really bad when I do some tasks at home. Also I wear a sling to rest my arm.
(e)Sensation of pins and needles radiating down my left arm.
(f)Pain in my left side of my left hand. This means that my ring finger and my little finger are stiff and painful. My injuries have aggravated. I had done x-rays, ultrasounds and also I had an injection. I have an appointment to see a specialist in January 2015.
(g)Pain radiating from my right trapezius radiating along the length of my right side into my hip and along my right leg all the way into my right toe.
(h)Often numbness in my right arm.
(i)Often numbness in my right leg.
170.As a consequence of my symptoms I am restricted in the following activities:
(a)Unable to undertake any repetitive work.
(b)Unable to sit for long periods without experiencing increasing levels of pain. Often neck gets stiff and locks.
(c)Unable to drive long distances without experiencing increasing levels of pain.
(d)Unable to use my right arm for any lengthy periods without experiencing increasing levels of pain.
(e)Cannot sit reading for any length of time without experiencing increasing level of pain and stiffness.
(f)Unable to undertake any sporting activities. Have attempted swimming but have found that unable to move my upper body.
(g)Unable to carry out domestic activities for any length of time without increasing levels of pain. (I am presently being assisted by Comcare with home assistance for 4 hours per fortnight and 2 hours per month for gardening.)
(h)Depressed mood as a result of my injuries and chronic pain caused by them.
(i)Unable to participate in my children’s school activities.
(j)Difficulties coping with social situations and outings because of my depressed mood. But also the pain experienced, which makes me irritable and a bit aggressive in my behaviour.
This statement is true and correct to the best of my knowledge and ability.”
In her oral evidence-in-chief the applicant, in relation to paras 42–43 of her witness statement, said that she took 14 months off work following the birth of her first child in July 1999 and returned to work in September 2000 on full-time hours.
As regards paras 44-55 of her witness statement, the applicant said that when, in early 2001, she experienced further symptoms, she saw Dr Norcott and he advised her that she had to reduce her work hours. She said that she did not discuss reducing her work hours with anyone at Centrelink, adding:
“ That was my mistake”.
She explained that, when she then applied to work part-time, an OH&S officer came to see her and told her that, if she were to apply for part-time hours because of her injuries, she would not “get it”, and that the “most popular way to apply for part-time, especially for women, was because of family commitments”. The applicant said that she told the officer that “the main reason” she was applying was because of her injuries because that is what her doctor had said. She said that the officer never mentioned to her that she could “get [her] hours different”, so she “applied because of [her] daughter” but “the main reason was because of [her] injuries”.
The applicant said that, if she had not had her work-related right-sided symptoms, she would have continued to work full-time hours and would still be working full-time.
The applicant said that, in the period prior to 2010, she was receiving assistance from her (now) ex-husband, her mother and her sister. She said that her sister came one day per week and helped her with the laundry, ironing, vacuuming and mopping. She said that she did the cooking “most of the time” but that she had “difficulties” with cutting, peeling, baking. She confirmed that she also required assistance with bathing and dressing. She said that she is able to drive a car “short distances”. She said that when she goes to the bank and the post office to pay bills, her mother accompanies her in order to assist her. Her mother also has to remind her to pay bills because she is “forgetful”. She said that her daughter assists her to get out of bed in the morning. She said that her children get their own breakfasts and that her mother prepares her breakfast for her. She confirmed that she receives household assistance, which is funded by Comcare, for 4 hours per fortnight and that includes “physical things which [she] cannot do” such as cleaning the toilet and the bathroom, vacuuming, mopping, cleaning the kitchen and doing the laundry.
In cross-examination it was put to the applicant that (contrary to paras 43 and 44 of her witness statement), when she returned to work after maternity leave on 4 September 2000, she did not work full-time hours but instead worked 25 hours per week. The applicant initially rejected that proposition but, when referred to a Centrelink document which set out in tabular form her work hours in the period from June 1999 to December 2008 and which indicated that her work hours were 25 hours per week from 4 September 2000 to 30 January 2005 (Exhibit R1, ST3, p 268), she said that she could not remember and added that it “must be right”.
The applicant acknowledged that she was working full-time hours immediately before the commencement of her maternity leave on 15 June 1999 but she said that, after the birth of her baby, she had to “look after [her] injury” and her health so that she would be able to do her work as well as look after the baby.
The applicant said that, during her pregnancy, Dr Norcott had told her that she would not be able to work full-time and look after the baby, and that, after the birth of the baby, she should consult him about her future work hours. She said that she went to see Dr Norcott and he advised her that she could not work full-time and look after the baby but she could not recall when that consultation took place. She added that she cannot remember everything about events which occurred 15 years ago.
The applicant also acknowledged that, after the birth of her second child, she returned to work on 31 January 2005 on 20 hours per week, and that the contents of para 51 of her witness statement to the effect that she returned to work in or about April 2005 on 25 hours per week are incorrect. She said that Dr Norcott had advised her that she could not continue to work 25 hours per week and she reduced her hours to 20 hours per week.
The applicant confirmed that, in September 2005, she was asked by Centrelink to increase her work hours from 20 hours per week to 30 hours per week but she was not willing to do so. She said that she then went to see Dr Norcott and told him about the request to increase her hours and asked if he could “help” her because of his opinion that she could not work more than 20 hours per week. She was referred to a letter from Dr Norcott to Centrelink, dated 12 September 2005 (T13, 2013/4143), in which Dr Norcott stated:
“ … I would confirm that she is, by virtue of her pathology, limited to 15–20 work hours per week …”
and she confirmed that Dr Norcott provided that letter to her at her request. She denied that Dr Norcott had stated “15–20 work hours per week” in that letter because she had told him that she only wanted to work 15–20 hours per week.
The Evidence of the Medical Witnesses called by the Applicant
Dr Kevin Norcott
Dr Norcott said that he has been in private practice as a general practitioner for about 25 years. He said that he saw the applicant from the early 1990s when he practised at the Mirrabooka Medical Centre but that he left that practice in 2002 and did not see her at the Thomsons Lake Medical Centre until 12 September 2005.
Dr Norcott confirmed that he had prepared a report, dated 18 May 1998, regarding a motor vehicle accident in which the applicant had been involved on 16 April 1998. (T16, 2013/0186)
Dr Norcott also confirmed that he had prepared a report, dated 11 December 2003, regarding another motor vehicle accident in which the applicant had been involved on 28 January 2002 (T11, 2013/0186). In that report, which is addressed to the applicant's (then) solicitors, Dr Norcott noted the applicant’s diagnosis of:
“·       Whiplash type cervical soft tissue injury sustained in a motor vehicle accident on the 28^th January 2002 (pre-existing cervical pathology is noted).
·Lumbar soft tissue strain type injury.”
and commented that the “cervical pain/disability [is] precipitated by the task of housekeeping and motherhood”. He also commented on the applicant’s work capacity as
follows:
“ As you are aware Ms KTKY is restricted in her vocation by her cervical pathology. Ms KTKY works at Centrelink as a customer services officer/receptionist. Workplace restriction [sic] have been in place since 1993 due to a work related cervico-brachial condition. The restriction [sic] of –
·       Avoid prolonged repetitive (=keyboard) tasks
·        Avoid heavy lifting
·       Avoid prolonged postures/avoid awkward positions
·       Rotation of tasks and duties.
These are also the restrictions, which her motor vehicle accident related injuries require.
Prior to leaving work there were restrictions of hours to five hours per day. I am unable to comment on the hours she will work when she resumes work. She will require a graded return to full work hours.”
Dr Norcott said that his recollection was that the applicant “struggled with maintaining her [work] hours when she was combining that with other tasks of home duties and active daily living”. He said that his recollection was that the applicant “was leaving work for other tasks in her life”, including her children, and that that was “impacting on her ability to recover from things”.
Dr Norcott was referred to a letter, dated 12 September 2005, which he wrote to Centrelink and which states as follows:
“ Mrs KTKY has attended me since the early 1990’s.
I have treated her with cervical overuse injury DOA 1996, rear end MVA on 2 occasions 1998/2002 with cervical ST injuries.
Mrs KTKY has well documented and finalised claims for residual disability as a result of these injuries.
Mrs KTKY has a limited capacity for clerical work hours before her chronic neck pain is aggravated.
I would confirm that she is, by virtue of her pathology, limited to 15-20 work hours per week.
Failure to adhere to this will flare her cervical pain.” (T13, 2013/4143)
Dr Norcott said that he had not seen the applicant “for some time” prior to 12 September 2005 and his recollection was that she had attended him on that occasion and requested
that he write that letter. He was referred to his clinical notes of his consultation with the applicant on 12 September 2005 which state:
“ History:
Initial work injury to neck 1996 RSI type neck shoulder
MVA 1998 – husband driving hit from rear left sided posterior cervical
MVA 2002 – rear end driving neck and lumbar ST
Work wish to put her to full time. Currently working 20 hours per week
At work since 29 January at 20 hours [wanted to do 15 hours]
…” (part of Exhibit A3)
and he said that he would have written the abovementioned letter in the course of that consultation. He added that detailed clinical records of his consultations with the applicant at his former medical practice were not available to him.
As regards the statement in his abovementioned letter:
“ I would confirm that she is, by virtue of her pathology, limited to 15–20 hours per week.”
Dr Norcott said that the applicant would have raised that matter with him, rather than his raising it with her, and he referred to his abovementioned clinical notes which, he said, indicated that she had “volunteered” to him that she was currently working 20 hours per week, that Centrelink wanted her to work full-time hours, but that she wanted to work only 15 hours per week. Asked whether the applicant was, at that time, capable of working full-time hours of 36 hours per week, Dr Norcott said:
“ she would probably be capable of working the hours but she would have an increase in her symptoms - her subjective symptoms.”
He said that he had previously documented that 20–25 hours per week would be reasonable hours that she could do having regard to her symptoms.
Dr Norcott was next referred to a letter, dated 7 May 2012, which he wrote to the respondent and which states as follows:
“ Mrs KTKY attended me today asking to confirm the reason for her to not work full time hours following injuries sustained at work and now finalised and accepted and injuries occurring in MVA.
Unfortunately I no longer work at the same Practice and do not have access to her medical records prior to 2006.
From notes I have at this practice and from my recollection I know that Mrs KTKY while on her claim and when returning to work following the birth of her daughter was able to work part time only.
I know that I advised and documented her to work reduced hours and later on altered duties due to her cervico-brachial [sic] diagnosis/pain disorder.
I don’t have the documentation prior to 2006 but I believe we could only get to 25 hours per week after the birth of her daughter and that she relied on her mother and partner to do many of the tasks of ADL [activities of daily living] at home so she could manage these hours.
After the birth of her son and in my reviews in 2006 on she could only manage altered duties to maximum of 5 hours a day 4 days a week.
These hours were advised and documented by me.” (T45, 2013/4143)
He was also referred to his clinical notes of his consultation with the applicant on 7 May 2012 which state:
“ History:
has settled claim
now has been retired to 75% of part time wages only
seeks/attends needs letter stating part time work was on basis of reduction due to injury
see letter
…” (part of Exhibit A3)
Dr Norcott said that, in his opinion, all of the applicant’s “subjective symptoms” are “multifactorial” and that the initial work injury, two motor vehicle accidents and lifting and breastfeeding children, together with the activities of daily living, all increased her cervical symptoms; and that, in addition, an increase in the number of hours she worked would cause an increase in her symptoms. He said that he believed that 25 hours per week was a “comfortable ceiling” of the hours that the applicant could work following the birth of her daughter.
Dr Norcott was referred to a Centrelink document setting out the applicant’s work hours from 10 June 1999 when she was working full-time hours and referring to the reduction in her work hours to 25 hours per week from 4 September 2000 and to 20 hours per week from 31 January 2005 (Exhibit R1, ST3, p 268). Asked whether he had any views about the reason for the reduction in the applicant’s work hours, Dr Norcott replied: “No”.
Finally, Dr Norcott was referred to a letter, dated 19 December 2014, which he wrote to the applicant’s solicitors and which states as follows:
“ I note your correspondence and can supply you with notes from my current work place only.
I note correspondence in 2012 which outlines my opinion/recollection that Mrs KTKY had well documented pre-existing cervical pathology as well as the alteration in her work duties.
I believed and advised Mrs KTKY as such.
Therefore in reply to your specific enquiries –
1.Was Ms KTKY’s reduction in her normal weekly hours (‘NWH’) incidental to her injury?
Please provide your reasons in an elaborate manner, including treatment.
Answer – It was related to her alteration in duties impacting on pre-existing cervical pathology.
2.In your opinion, was Ms KTKY’s reduction in her NWH as a result of any other factors that are unrelated to her workplace injury?
Answer – As above and as outlined in notes 12/9/2005.
3.In respect to the dates recorded above, can you please advise whether the reduction in her hours per week was as a result of her workplace injury only?
Answer - As above my opinion is NO.
…” (Exhibit A4)
As regards his answer to question 3 in that letter, Dr Norcott said that he was reiterating his opinion that the reason for the applicant’s reduction in work hours was “multi-factorial”. He said that he did not regard the applicant’s child-caring duties as the principal reason for the reduction in her work hours; rather, he said that it was probably her initial workplace injury in the 1990s that “started it all off”.
In cross-examination Dr Norcott was referred to a record of attendances by the applicant at the Mirrabooka Medical Centre from 12 April 1999 to 3 February 2010 which included attendances by the applicant on him up until 24 May 2004 (Exhibit R1, ST8, pp 584–597). He explained that he had “started to leave” that medical centre in 2002 but did not finally leave until 2004. He confirmed that he applicant’s last attendance on him at the Mirrabooka Medical Centre was on 24 May 2004 and that her first attendance on him at the Thomsons Lake Medical Centre (to which he relocated) was on 12 September 2005.
Dr Norcott accepted that, immediately prior to her going on maternity leave in 1999, the applicant was working full-time hours of 36.75 hours per week and that, when she returned to work from maternity leave on 4 September 2000, she commenced on 25 hours per week (Exhibit R1, ST3, p 268). Asked whether he recalled having a conversation with the applicant about her return to work on 4 September 2000, Dr Norcott replied: “No”. He also said that he did not recall medically certifying her as fit for restricted hours of 25 hours per week at that time.
Dr Norcott confirmed that he had not seen the applicant in the period immediately prior to her return to work from her second maternity leave in 2005 and that her then returning to work on 20 hours per week was not on his recommendation. He also said that he did not believe that he had recommended to the applicant at that time that she cease working.
Dr Norcott confirmed that it was his recollection that, although the applicant was able to work full-time hours before the birth of her first child, she had said that, after the birth, she was only able to work 25 hours per week.
Dr Norcott was referred to paras 43–44 and 50–51, 53 and 55 of the applicant’s witness statement (Exhibit A1, set out in paragraph 25 above). As regards paras 43–44, Dr Norcott said that he “could not contradict” that he had advised the applicant to reduce her work hours and that, if the applicant had sought his advice in that regard, he would have advised her to reduce her work hours. As regards para 50, Dr Norcott said that he would not have recommended that she take two years off work at that time. As regards para 51, Dr Norcott said that he was not seeing the applicant in early 2005 and he did not give her the advice referred to in that paragraph to the best of his recollection. As regards para 55, Dr Norcott said that the applicant did attend him on 12 September 2005 but that he was not aware until then that she had been working 20 hours per week and, to the best of his recollection, he had not previously given her that advice.
In re-examination Dr Norcott was referred to Workers’ Compensation Progress Medical Certificates issued by him in relation to the applicant on 17 January 2006, 24 January 2006, 30 January 2006, 6 February 2006, 13 February 2006, 3 March 2006, 17 March 2006 and 3 April 2006 (part of Exhibit A2). He confirmed that each of those certificates constituted a certification by him that the applicant was fit for reduced work hours.
Dr Robert Will

Dr Will, Consultant Rheumatologist, confirmed that he had been in private practice as a rheumatologist since the mid 1980s. He said that the applicant had been referred to him by her solicitors for the purpose of a permanent impairment assessment and that he had prepared reports, dated 1 October 2013, 22 July 2014 and 19 December 2014, each of which was addressed to those solicitors.
Dr Will’s report of 1 October 2013 states as follows:
“ Thankyou for asking me to review this patient and provide a permanent impairment assessment. I reviewed this patient on 13^th August 2013.
To address your specific questions:
1.History given by your client
Mrs KTKY’s musculoskeletal problems date back it would seem to the early 1990s and this is documented in the letter of Dr K C Ng from 1993. She apparently had features according to Dr Ng’s letter when he first saw her in August 1990 of an occupational overuse syndrome involving the right side of her neck, shoulder, and right upper limb resulting from repetitive duties at Joyce Bros her claim was finalised. [sic] Her symptoms however continued. She commenced work with Centrelink in late 1991 and duties largely involved computer data entry, but she also did some customer service duties including reception and claims and worked both in the Morley and Mirrabooka centres. She was working fulltime 38 hours a week, but hours were decreased when her daughter was born in July 1999 and a second baby was born in 2003. She ceased work with Centrelink in 2007 and currently is paid 75% of a 20 hourly rate. She has had a series of surgical procedures done by various surgeons on both shoulders as well as the right elbow and right carpal tunnel surgery since the onset of her symptoms. This surgery has made very little difference to her symptoms.
2.Current symptoms and restrictions complained of by your client arising from her work related condition.
She has ongoing chronic neck, trapezial and upper limb pain and describes pain and swelling in the hands and pins and needles in both hands and arms.
She continues to have a disability and is restricted as to her ability to undertake household duties. Her chronic pain led to the break up of her marriage and she separated from her husband in 2011. She has two children aged 14 and 10 living with her. She is able to drive short distances.
3.Please detail your findings on clinical examination:
Examination revealed diffuse tenderness over the Romberg muscle and trapezial region more marked on the right than the left consistent with allodynia and there is also tenderness extending anteriorally over the right supraclavicular region and also intra clavicular region and tenderness extending into the right upper limb as well as the forearm and hand. Neural stretch testing on the right upper limb was particularly painful both with full extension at the elbow and abduction and attempted external rotation of the right shoulder with [sic] provoked significant right upper limb pain.
Muscle strength was normal in the upper extremities with symmetrical reflexes. A pin prick sensation was felt as duller over the right upper limb compared to the left side and a cold sensation was felt as slightly warmer over the right arm as compared to the left.
4.What is your diagnosis:
She presents with features of a diffuse neuropathic pain syndrome worse over the right trapezial and right upper limb compared to the left side (right forequarter syndrome). This extends to the cervical spine.
5.What treatment do you consider may be necessary
a.   Currently
Treatment for diffuse neuropathic pain syndromes could be contemplated, however some or all of these treatments have previously been trialled on this patient. Treatments which may help this syndrome include medication such as Gabapentin and Pregabalin. The antidepressant medication which has pain relieving properties are known as Cymbalta (Duloxetine) and Amitriptyline.
Gentle graded exercise programs can also be of benefit.
b.   In the future?
Similar treatments that I have outlined above could be contemplated in this patient. She may also require trials of analgesic medications to see if this modifies her current symptoms.
6.Your prognosis of my client’s condition
I am very pessimistic as to her prognosis. She has had chronic pain problems involving her neck, shoulders and upper limbs since at least the late 1990s and there is little evidence to suggest that these pain problems are improving.
7.Do you consider my client will be restricted in any way in the type of work she is able to undertake?
a.   Currently
I don’t believe your client is fit to return to the workforce in a part time or full time position in any role that she has previously undertaken. She is not able to undertake any keyboarding activities or writing. She is significantly disabled and I believe permanently disabled to undertake this work.
b.   In the future?
I see little likelihood of her returning to the workforce in the future based on her current level of disability.
8.What is the estimate of my client’s permanent impairment expressed as percentage measured in accordance with the Comcare ‘Guide to the Assessment of the Degree of Permanent Impairment’?
By utilising Table 9.4: limb function-upper limb on page 248 of the ComCare Guide to the Assessment of Degree of Permanent Impairment, the patient retains some use of the limbs but has difficulty with self care. This applies to both the upper limbs and thus she has a 30% impairment with regard to both upper limbs. This is based on her self report assessment of her difficulties with self care activities.
Utilizing Part 1, Appendix 1 – ‘The Combined Values Chart’ Pg 209 of ‘Comcare Guides’ combining 30% impairment of the Right upper limb and 30% impairment of the Left upper limb gives her a total body impairment of 51%.
She requires assistance from her daughter with dressing with her bra and stockings and has difficulty with difficult clothing. She does not wear shoes with shoelaces as she is unable to tie them up and she avoids clothes with buttons as she is unable to undo them. She has difficulty pushing herself up from low chairs because of the pain in her upper extremities.
She has ergonomic cutlery and finds it difficult to cut tough meat and often receives assistance from her daughter or mother with these activities. She uses a jar opener even if the jar has been previously opened. She has difficulty with showering herself and her daughter assists with soaping her back and also with using a moisturiser. She has difficulty reaching high objects and uses long handled appliances to reach.
She has difficulty with gripping and holding as she often drops objects and breaks glasses.
9.Extent to which my employment with Centrelink has contributed to:
a.   The Current Condition?
As I have indicated above your client commenced work with Centrelink in late 1991 and continued working for Centrelink until 2007. It is my view that your client’s ongoing chronic neuropathic pain in her upper extremities has been caused to a significant degree by her work with Centrelink. While there may have been some contribution by the previous work that she undertook for Joyce Bros this claim was finalised. It would seem unlikely that other activities that your client undertook such as any domestic activities have caused this pain to a significant degree. It is my view that 90% of her current symptoms have been directly caused by the work she undertook with Centrelink.
b.   Any permanent impairment?
It is my view that 90% of her permanent impairment has occurred as a direct result of the work she undertook with Centrelink.
…” (Exhibit A9)
Dr Will’s report of 22 July 2014 states as follows:
“ Thank you for your letter of 8 July regarding this patient. As you are aware I wrote to your Mr Robert McCabe in a report on this patient dated 1 October 2013 a copy of which you enclosed.
I note you also enclosed:
1.A medical report from Dr Patrick Hanrahan, Consultant Rheumatologist dated 12 July 2012;
2.Supplementary medical report of Dr Patrick Hanrahan, Consultant Rheumatologist dated 17 March 2014.
I can confirm that item 8, page 2 of my report that I have provided your office with a whole person impairment percentage on this patent of the right upper limb of 30%, left upper limb 30%, total body impairment 51%.
I can confirm that I used the Comcare guide to the assessment of The Degree of Permanent Impairment Edition 2.1 to arrive at my assessment of this patent’s total body impairment.
In her specific case I used table 9.4. Page 248. Specifically table 9.4: Limb function, upper limb was used to arrive at her percentage description of level of impairment. A 30% level of impairment was used as she retained some use of the limb, but has difficulty with self care. A 50% total body impairment was derived by utilising the combined values Chart, page 209 of comcare guides and combining the 30% impairment rating of both upper limbs.
Dr Hanrahan in his medical report dated 12 July 2012 indicates in the table enclosed in that report – degree of whole person impairment (WPI) of injuries that are permanent (page 6 of his report) indicates that he provides a current percentage WPI for the cervical spine of 8%. This is based on table 9.15 cervical spine – diagnosis related estimates of the Comcare guides. How he in fact arrives at 8% WPI is not clear. He states that this is assessed on the basis of observed slight impairment of motion with pain and stiffness. This does not appear to be part of the criteria for arriving at an 8% WPI based on table 9.15.
Similarly he then derives a current percentage WPI of 12% for the right shoulder and 10% for the left shoulder utilising table 9.11.1 of the Comcare guides. I am assuming that he has arrived at these percentages based on the loss of movements of Ms KTKY when he examined her shoulder mobility. He states this in his supplementary report to the Australian Government Solicitor in his letter of 17 May 2013.
Dr Hanrahan uses table 9.11.1 and his measured range of movements of Ms KTKY’s shoulders to arrive at the percentage WPI points of loss of each of the movements that he outlines. He then uses a non economic loss rating to arrive at pain and suffering scores for the patient. He doesn’t state how he arrives at the final figure of whole person impairment of 27%. I am assuming that he is referring to total body impairment as this percentage.
I regret that I am not able to provide you with a more detailed assessment of his conclusions as it is not entirely clear from his initial report or supplementary report as to how he arrives at his final whole person impairment assessment.” (Exhibit A10)
Dr Will’s report of 19 December 2014 states as follows:
“ Thank you for your further correspondence regarding this patient and drawing my attention to the fact that I did not use the correct table to assess Ms KTKY’s current level of impairment. I used table 9.4 which relates to Defence related personnel for permanent impairment, not for other workers covered under the Comcare guide.
The appropriate table to use to assess Ms KTKY’s impairment is table 9.14.
I can confirm that I used Comcare guide to the assessment to the degree of permanent impairment edition 2.1 to arrive at my assessment as to the patient’s total body impairment.
Table 9.14 is the appropriate table to use on this patient as her assessment of impairment really relates to the assessment of both upper limbs. Table 9.14 needs to be used as an assessment can’t be made of this patient under one or more of table 9.9, 9.10 or 9.11.
Table 9.14 assesses the function of the entire upper extremity and Ms KTKY has significant issues with both upper extremities.
Ms KTKY has significant pain involving both upper extremities which has produced secondary dysfunction in the upper extremities and this dysfunction is permanent. It is not likely to improve as a result of any further surgery, medication or rehabilitative treatment. Ms KTKY cannot be assessed using other tables in chapter 9 part 2 of the upper extremities. Ms KTKY has a chronic neuropathic pain syndrome involving both upper limbs. This have [sic] initially been on the basis of an occupational overuse syndrome but has been aggravated by subsequent surgical procedures.
Ms KTKY has significant functional disabilities of both upper extremities and when assessed by the Occupational Therapist was unable to complete simple hand and upper limb functional tasks functions [sic] due to pain. She was able to oppose the thumb and little finger of the right hand, but the movement was slow and deliberate. She kept her hand in the extended position throughout the assessment. She was unable to complete any activity due to pain.
She reported that she regularly drops items such as glasses and cutlery and uses modified utensils such as spoons and knives. She also uses a modified cup which is a light weight cup.
She uses her non dominant left hand to write. Shapes were not well developed when she wrote and she was slow and had an awkward pen grip when using her left hand. She was unable to complete specific writing tasks.
She receives assistance from her mother and daughter to help with dressing and is unable to do up buttons, shoe laces or jewellery clasps and has difficulty manipulating small keys. She has replaced door knobs on internal doors with lever handles to enable independence as she finds gripping round shaped door handles painful and difficult.
Utilising table 9.14 she would best meet criteria of a major criteria of little useful digital coordination and severely limited use of the extremity for personal care. She would rest after writing ten words or less. She cannot lift more than half a kilogram and she constantly drops light objects such as cups. She is unable to cut up food and she needs extensive assistance to dress. This would provide her with a rating of 25% whole person impairment using the non dominant extremity and a 30% whole person impairment using the dominant extremity providing her with a 50% whole person impairment using both extremities.
Using a combined values chart part 1 appendix 1 page 210–212 of the guide and combining here impairments of 25% and 30% provides her with a whole person impairment of 48%.
The higher rating obtained thus in this patient is a 50% whole person impairment obtained from table 9.14”. (Exhibit A11)
In his oral evidence-in-chief Dr Will explained that, having regard to the instructions preceding Tables 9.8–9.11 on p 110 of the Guide to the Assessment of the Degree of Permanent Impairment (Edition 2.1) (“the Guide”), he did not feel it appropriate, in the applicant’s case, to use a combination of Tables 9.9, 9.10 and 9.11 because there was no “radiographical abnormality of the limb”. He confirmed that there was no radiographically demonstrated joint instability, no radiographically demonstrated arthritis, and no arthroplasty in the applicant’s case. He said that he regarded it as appropriate to use Table 9.14.
Dr Will said that, in arriving at his assessment of the degree of permanent impairment of the applicant’s upper limbs under Table 9.14, he also took into account a report of Erin Gandy, Occupational Therapist. He referred to his assessment under Table 9.14, as set out in his report of 19 December 2014 (Exhibit A11, set out in paragraph 54 above), and elaborated upon how he had arrived at that assessment. He confirmed that his assessment of the applicant’s “whole person impairment” under Table 9.14 was 50%.
Dr Will explained that he had not made an assessment under Table 9.15 (cervical spine) because he did not feel that, based on the applicant’s history, she had a “significant problem” with her cervical spine.
In cross-examination Dr Will was referred to the Introduction to Part II (The Upper Extremities) of Chapter 9 of the Guide at p 110 which states:
“ If the medical assessor considers that the impairment is not adequately assessed using one of Tables 9.9, 9.10, and 9.11, and the condition involves radiographically demonstrated joint instability, radiographically demonstrated arthritis or where the employee has had an arthroplasty, the medical assessor may consider the effect of the injury on upper extremity function instead and determine the WPI rating using Table 9.14. Table 9.14 cannot be used unless the condition involves radiographically demonstrated joint instability or arthritis or the employee has had an arthroplasty.”
He was also referred to the following extract from p 145 of the Guide:
“ 9.14 UPPER EXTREMITY FUNCTION
Before using Table 9.14 the medical assessor should read the instructions (see Part II – Introduction, see page 110) preceding the specific joint impairment tables (Tables 9.8–9.11). Table 9.14 is used strictly in accordance with those instructions. In particular, Table 9.14 cannot be used where an assessment can be made under one or more Table 9.9, 9.10 or 9.11 and there is no radiologically demonstrated joint instability or arthritis or arthroplasty.”
He acknowledged that he had misunderstood the above-quoted instructions on p 110 of the Guide – in particular, the precondition that “the condition involves radiographically demonstrated joint instability or arthritis or the employee has had an arthroplasty” before Table 9.14 can be used. He confirmed his earlier evidence to the effect that that precondition was not satisfied in the applicant’s case.
In re-examination Dr Will said that he had thought that his assessment of the degree of impairment of the applicant’s upper limbs was “appropriate to her problems”.
Dr Stephen Proud
Dr Proud, Consultant Psychiatrist, said that he has practised as a psychiatrist since 1999. He has prepared five medico-legal reports in relation to the applicant, dated 21 July 2010, 26 March 2014, 1 April 2014, 27 November 2014 and 27 February 2015, each of which was addressed to the applicant’s solicitors.
Dr Proud’s report of 21 July 2010 (as amended by him in his oral evidence) states as follows:
“ This is the psychiatric report requested. This report is based upon my clinical interview of Ms KTKY today. In preparing this report, I have read the documentation that you have supplied that includes:
·       Reports from Dr Norcott dated 18/05/98 and 11/12/03;
·       Report from Dr Silbert dated 10/03/04;
·       Report from Dr Pearce dated 07/12/09;
·       Report from Dr Blumberg, Psychiatrist, 05/02/10;
·       Report from Dr Edwards-Smith, Psychiatrist, 23/04/10.
Background
Ms KTKY is a 47-year old married woman who was born in Concepcion, Chile. She has two sisters and a brother and her parents are alive and well. She had a good childhood. The family moved to Valparaiso when she was aged 14. After finishing the equivalent of Year 12, she did one year of secretarial studies. Her father was a miner in the copper mines in Chile and when the workers went on strike for better conditions, he was sacked, so he decided to bring his family to Australia and they came on a humanitarian visa in 1984.
She married at age 32 and has a daughter aged 11 and a son aged 7. Her husband of Swedish background is a self-employed painter.
Her whole family is in Perth and she is close to them. Since she has been unable to work, her husband has increased his hours, often leaving at 06h00 in the morning and coming back at 7h00 at night.
She takes no nicotine, no illicit substances and no alcohol. There is no family history of psychiatric problems. She believes that she first became significantly depressed in 2005 after her right shoulder pain became much worse. She is on Tramadol, 20 mg of Endep, 20 mg of Lexapro, Nurofen and Panadol.
When she came to Australia, she first worked in a factory and in 1987 secondary to heavy lifting, she developed pain in her neck and right upper back. She was sacked, she says, when she complained of the pain. Workers’ Compensation was initiated and settled three years later.
In 1988, she worked for 1½ years in child care doing 15 hours a week. She left for a full-time job in administration at Centrelink in 1990. In 1993, secondary to what she says was the repetitive data input requirements of her job, she developed tingling and pain in her right hand that went up her right arm. She is ambidextrous.
She had time off work, but kept on working with ergonomic changes to her workstation and physiotherapy and Workers’ Compensation paid for the treatment, she says. She continued working full-time, but then her pain got worse and it extended to her neck and upper back in 1997. After some time off work with reduced hours, she then went back to working full-time.
In 1998, she suffered whiplash injuries in a motor-vehicle accident. That gave her lower back pain for the first time, she thinks, but it also aggravated her pain in her neck and her upper back. She continued to work full-time in Centrelink. In 1999, her first child, a daughter, was born with a Caesarean section. She had pancreatitis secondary to gallstones and the pregnancy and had her gallbladder removed. Her daughter was an easy baby but she said she had no postnatal depression. She took a year off work.
Then she came back working part-time at Centrelink and in 2001 she noticed that the pain in her neck, back and right arm was getting worse, but no compensation claim was initiated. She had a further car accident in 2002, another whiplash accident, and this aggravated the pain in her neck and lower back. Her second child was born in February 2003 from Caesarean section and postnatally she had no problems.
After some time off work with her child, she continued working part-time at Centrelink, then in 2005, she noted that the pain was getting worse in her right hand and to some extent in her left hand starting to play up and the pain continued in her low back and neck.
She initiated a Workers’ Compensation claim in January 2006 and when the pain got worse and was not getting better, she ceased work in July 2007 and has not worked since. She says that throughout this time, there has been no external stresses that may have had an impact on her pain or her mental state. She has had multiple operations; an appendicectomy, two Caesarean sections, a cholecystectomy, then her right shoulder was operated at the end of 2007, her left shoulder in the middle of 2008, her right wrist in the middle of 2008 and her left wrist and elbow in March 2009.
She has also been under the Pain Specialist, Dr Berrigan. She has never been under a Psychiatrist for treatment, but since the middle of 2008, she has seen a Psychologist regularly. Her GP first started anti-depressants in May 2008.
Current Symptoms
She complains of rest pain in decreasing order of magnitude in her right shoulder, left shoulder, lower back, right and left hands, and neck. She has trouble falling off to sleep and staying asleep. If she sleeps on her right side, she gets bad pain and nightmares and the theme of the nightmares is her carrying heavy loads. She is sad and has thoughts of suicide. Her energy, sex drive, motivation, concentration and short-term memory are low. She feels hopeless and helpless.
Functionally, she can drive a car but the pain limits the distance. She has withdrawn socially, she is irritable interpersonally, her libido is low and the pain interferes with her sex life. She doesn’t shower or wear clean clothes every day. She doesn’t spend a lot of time preparing meals. She will clean once a fortnight and the children will help. She doesn’t run. She cannot play with her children much. She can walk but not long distances. She used to enjoy reading and listening to music, but cannot concentrate for long on those two events.
Mental State Examination revealed a well-groomed, polite and cooperative woman. She was sad with a marked, congruent reduction in her affective reactivity. She had a Spanish accent, but had an excellent command of English. Her GP speaks Spanish, but she converses with her GP in English. She gave a good history and was intelligent.
Clinical testing revealed a mild impairment in concentration and a moderate impairment in short-term memory.
You ask three specific questions, and I will now answer them seriatim:
1.Your view as to the correct diagnosis of KTKY’s condition.
She has a Major Depressive Disorder of Moderate to Marked severity, Chronic. She may or may not have a Pain Disorder where physical and psychological factors are important. In view of the fact that she has had surgery on the right shoulder, left shoulder and both wrists, it is unlikely that she has a Pain Disorder and therefore overall, her diagnosis is just a Major Depressive Disorder.
2.Your assessment of the likely cause of that condition.
Her depression is secondary to her chronic pain. It started when she had right shoulder pain and she herself says that the pain in the right shoulder is the major issue.
The cause of the depression is from chronic pain and the main pain is in the right shoulder. The question then becomes, when did her right shoulder pain start? That is better answered by the appropriate medical specialist as it is not a psychiatric question.
She did indicate that she had pain in her right upper back way back in 1987 and then she had pain in her right hand going up to her right shoulder in 1993. The two accidents certainly aggravated the pain in the upper back and the neck and returning to work appears to have aggravated the pain in her arms going up into her shoulders.
3.If the likely cause of the condition is multi factorial, your view as to the likely causes and the relative proportion they pay to the creation of the condition.
The cause of the Major Depression is not multifactorial. It appears to be chronic pain. It is a medical question to tease out all of the different pains in her body and to determine the cause of those physical injuries from her different places of employment and motor-vehicle accidents. The secondary consequences such as the low libido, the stress in the marriage, the social withdrawal, are all from depression. The cause of the depression is the pain. The major cause of the pain is her right shoulder.
It then becomes a medical question, not a psychiatric question, to determine which work injury is contributing the most to her pain in the right shoulder and which car accident is contributing the most to the pain in the right shoulder. It also becomes a medical question to apportion the contribution of the pain amongst all of the sites on their body and which of the work injuries and which of the car accidents contributed to all of those multifocal pain sites.
Her Major Depression is permanent for the foreseeable future. …
…” (T37, 2013/6692)

Dr Proud’s report of 26 March 2014 states as follows:
“ This psychiatric report requested [sic]. This report is based upon my clinical interview of Ms KTKY today.
In preparing this report I have read the documentation that you have supplied. Please note that there is no new documentation from when I wrote my first report to yourselves on 21/07/2010. This updated report should be read in conjunction with that report.
Background
Since my last report Ms KTKY’s situation has deteriorated as her husband left her for another woman in 2011 and she only receives $200 a month in child support from him, so she alleges.
She is living with her children aged 14 and 11 and her mother. She has not worked since July 2007. She remains under her GP but no psychiatrist and no current pain specialist.
She continues to see her psychologist monthly from 2008.
She is on Endep 10 mg at night, Escitalopram 20 mg in the morning and Tramadol and Nurofen. She takes no nicotine or alcohol.
She has had no rehabilitation or return to work program since 2007.
Current Symptoms
She complains of chronic pain in both her shoulders and pain in her upper back and mid back, especially on the right side. She has pain in both hands with less grip power and dexterity in both hands. She has trouble falling off to sleep and staying asleep. She still has nightmares of people pulling her out of the bed and hurting her.
Her energy, sex-drive, motivation, concentration and short-term memory are low. She says she hasn’t entered the menopause.
Her mood is sad, angry and irritable and she has thoughts of suicide and says the only reason to live is her two children.
She has family support in Perth but mostly her mother and she does not see her siblings that much.
Function
She alleges that she forgets things so she always goes banking with her mother and her mother helps her pay the bills. She will go shopping with her mother or her daughter.
Comcare gives a cleaner four hours every two weeks and a gardener two hours a month. She and her mother share the cooking. She puts clothes in a washing machine but her mother, daughter or cleaner hangs the clothes on the line. There is no ironing done in the house except her daughter irons her own school clothes and the clothes for her younger brother.
Ms KTKY drives a car but only short distances. She takes her children to and from school and they go to schools two minutes and five minutes away by car.
She will go to school functions but does not attend other social outings but very rarely will go to a family function.
She does no exercise and has no hobbies and she spends a lot of the time at home resting or pottering around the house and watching television.
Mental State Examination
Ms KTKY was casually and neatly dressed. She had poor eye contact. Her palms were not sweaty.
She gave an average history. She spoke softly with reduced prosody and volume. She appeared to be angry and sad.
Her short-term memory was poor and her concentration was poor.
It was difficult to know whether she was putting the correct effort in because even though she is from Chile and I asked her to name 10 countries in South America, she could only get three, and that was very slow. This is an unusual response. Similarly, when I asked her to name 10 animals she only could name four.
Summary and Assessment
Ms KTKY is a 51-year old separated woman, originally from Chile, who has a chronic Pain Disorder. She also has a Major Depressive Disorder of moderate to marked severity, chronic. She also appears to be angry and to have lost her motivation.
It appears that there are significant psychological factors affecting her chronic pain. Due to these psychological factors, it is unlikely that she will ever enter the workforce and that she will ever completely recover from her Depressive disorder.
She has had treatment and continues to see a psychologist six years on and the treatment has not been that effective.
Therefore, in summary, Ms KTKY suffers from Major Depression of a chronic nature, as well as a chronic Pain Disorder and there appear to be prominent psychological factors. She also appears to become embittered and demoralised and the prospects for her ever returning to the workforce are very poor indeed.
I see no role from a therapeutic point of view for her to continue with her psychologist but she should certainly continue with her GP and remain on her medication.
With respect to the Social Security Psychiatric Impairment Rating Scale, she has a permanent psychiatric impairment of 15% as she has moderate and regular symptoms for the foreseeable future.” (Exhibit A5)
In his oral evidence Dr Proud confirmed that his references to “chronic Pain Disorder” in the abovementioned report relate to a physical condition and not to a psychiatric condition. He said that the only psychiatric diagnosis he had made in the applicant’s case was Major Depressive Disorder.
Dr Proud’s report of 1 April 2014 relevantly states as follows:
“ You forwarded a list of questions with documentation after I had assessed Ms KTKY and written my initial report. I confirm that I have read this documentation and my responses to your questions should be read in conjunction with my report to yourselves dated 26/03/2014.
Specific Questions
1.What is the diagnosis of the condition or conditions (including any co-morbid features or sequelae)? Please identify and diagnose each condition, if distinctly different, on a separated numbered line.
Major Depressive Disorder, moderate severity, chronic, DSM-5 criteria.
She also reports chronic pain and if there are psychological factors involved in her chronic pain then she could also attract a diagnosis of a Somatoform Disorder, DSM-5 criteria.
2.What is the prognosis of each condition identified in your answer to question 1 above?
Poor.
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 aggravated to [sic], or aggravated, to a significant degree, by my client’s employment.
The Major Depression is a result of her chronic pain and the ongoing disability arising from that chronic pain.
…
8.Does my client suffer impairment that resulted from one or more of the conditions identified in your answer to question 3 [sic] above? If so please describe each impairment in terms of the definition.
She suffers an impairment. Her Major Depression is her psychiatric impairment.
9.With reference only to those impairments identified in your answer to question 9 [sic] 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.
She has significant treatment for depression over a long period of time and she suffers impairment in a range of functioning domains and therefore her impairment is permanent with respect to her Major Depression.
10.On what date did each impairment you have identified in your answer to question 10 [sic] above stabilise and become permanent? Please specify a date, or month and year, if possible, and give reasons for your answer.
2007.
11.If a particular impairment you have identified in your answer to question 9 above has not yet stabilised, when will such impairment become stable and permanent? Please specify a date or month and year if possible.
Not applicable as she has been stable for a number of years.
12.Is my client capable of performing activities of daily living without supervision, assistance or direction? Please give actual examples of my client’s reported history, particularly with regard to any reactions to stressors of daily living.
From a psychiatric point of view, and with respect to just her Major Depression and not to her pain, she has reduced motivation for self-care, reduced concentration in respect to remembering to pay bills and reduced motivation to look after the house.
13.What is the percentage of whole person impairment assessed specifically in accordance with Table 5.1 (psychiatric conditions)?
With respect to Comcare Table 5.1, of the Comcare Guides, she has thoughts of suicide and therefore has marked disturbance in thinking. She has withdrawn socially except for school functions and therefore has some disturbance in behaviour. She has modified her daily living functions by spending a lot of time at home resting or watching television and not going out and she has some supervision in the sense that her mother helps her pay the bills and her mother helps her with the banking and the shopping.
All of these activities are impaired to some extent by her Major Depression. Therefore she meets the Comcare definition of 25% psychiatric impairment.
The only question mark is how disturbed her behaviour is and one could argue that it is not that markedly disturbed with respect to her depression and therefore she could meet the definition of a 20% impairment.
This is debatable [sic] point but strictly with reference to the criteria, it is my opinion that she meets the criteria for 25%.
…” (Exhibit A6)
In his oral evidence, Dr Proud confirmed that, in making his assessment of 25% impairment under Table 5.1, he had proceeded on the basis that the applicant’s mother was the relevant “suitable person” and “suitably qualified person” within the meaning of the Notes to Table 5.1.
Dr Proud’s report of 27 November 2014 states as follows:
“ Thank you for your request dated 06/11/2014 for some clarification with respect to my previous reports to yourselves dated 26/03/2014 and 01/04/2014. In asking for my supplementary comments you have asked me to review the report by Dr Edwards-Smith dated 30/06/2014.
I will now answer your questions seriatim:
Specific Questions
1.Please provide a comparative opinion in respect to Dr Edwards-Smith’s assessment contained in her report dated 30 June 2014, in particular her opinion recorded at paragraph 4.1 and 4.2 therein.
The difference between myself and Dr Edwards-Smith comes down to the definition of supervision.
In my report dated 26/03/2014 on page two under ‘Function’ Ms KTKY gave me clear examples of what, in my opinion, meet the definition of supervision. She told me that because of her impaired concentration and perhaps motivation her mother assists her with banking, paying the bills and shopping. Comcare assists her with a cleaner and a gardener and that is mostly because of her pain but there is also a small contribution from her reduced motivation.
She and her mother share the cooking. Again this is due to pain as well as motivation. There is no ironing done in the house except that done by her daughter who irons her own school clothes and the clothes of her younger brother. This is because of a combination of pain and lack of motivation. These, in my opinion, meet the definition of the need for supervision arising from her depression and not her pain.
2.In respect to your psychiatric impairment rating of 25% recorded at page [sic] 13 of your enclosed report, would you please clarify what elements of daily and living restrictions, as well as any other issues faced, did you consider when arriving at that impairment score?
Again I reiterate; the elements of daily living are reduced ironing, shopping, paying of bills and cooking. She rarely attends family and social outings and this is a living restriction, as is the fact that most of the time she spends at home watching television rather than engaging in other activities.
3.What restrictions do you consider Ms KTKY currently suffers and requires supervision for?
The depression reduces her motivation and concentration and she requires supervision for banking, paying bills, ironing, cooking and keeping the house in an acceptable state.
a.   What treatment would Ms KTKY need in this respect?
You ask what treatment she needs in this respect; I am not sure what you mean by that as treatment for depression entails medication and psychotherapy. The term ‘assistance’, rather than ‘treatment’ better captures what is being done to partially alleviate her functional deficits.
b.   Would Ms KTKY require a specialist to offer such supervision?
She does not require a specialist. These are very basic tasks.
c.   What costs would Ms KTKY incur to obtain such supervision?
This is difficult to estimate, particularly with respect to the cooking. I am not sure what it would cost Meals on Wheels to provide meals for the family every day.
A bookkeeper charging $50 an hour could do the banking and bills for two hours a week.
A cleaner coming once a week to assist with cleaning because of her reduced motivation again would possibly cost $200 a week.” (Exhibit A7)
Dr Proud’s report of 27 February 2015 (as amended by him in his oral evidence) states as follows:
“ Thank you for your letter dated 25 February 2015 in which you enclose a supplementary psychiatric report by Dr Gemma Edwards-Smith dated 30 June 2014. You ask that I comment upon that opinion.
Please note that my response should be read in conjunction with my previous reports to yourselves dated 26 March 2014, 1 April 2014 and 6 [sic] November 2014.
I have not seen Ms KTKY to write this response.
Firstly, I thank my colleague, Dr Edwards-Smith for pointing out the editing error as I did assess Ms KTKY according the Comcare Guides to the Assessment of the Degree of Permanent Impairment, Chapter 5, 2^nd Edition, and I have not used the Social Security Psychiatric Impairment Rating Scales, although those later scales were historically part of how the Comcare Guides were derived.
The second point that I would like to mention is that the Comcare definition of supervision is ‘Supervision means the immediate presence of a suitable person responsible in whole or part for the care of the employee’. I also note that the Comcare Guides define direction as ‘Direction means the provision of direction to the employee by suitably qualified person responsible in whole or in part for the care of the employee’.
Direction and supervision are dimensionally related to each other, with supervision meaning a higher degree of direction and then a higher degree of supervision is when the employee or patient can’t do it at all and someone else does it for them, and perhaps we should use the word then replacement.
With that in mind, let us now turn to the Comcare Guides and the definitions of activities of daily living. To this, I draw your attention to my report dated 27 November 2014. I draw you to the top two paragraphs on page 2. In particular, Ms KTKY told me that her mother assists Ms KTKY with banking, paying the bills and shopping. Secondly, Ms KTKY does no cleaning and gardening; in part because of pain but also because of motivation and thirdly, Ms KTKY does no ironing and that is done by her daughter and son.
In my mind, the assistance with the banking, paying the bills and shopping meets the definition of supervision. She and her mother share the cooking and in my mind that meets the definition of direction. She does no ironing at all and that is done by her children, which in my mind meets my definition of replacement but as that word is not part of the Comcare Guides, that is supervision, at the very least, to my mind.
Therefore, in my opinion, Ms KTKY requires both direction and supervision. That is the first point.
Dr Edwards-Smith and I did agree that there was evidence of marked disturbance in thinking. Therefore, the first question is: does she have reactions to stresses of daily living which cause modification of daily living patters [sic] and the answer is obviously yes to that. The next question is, is there a definite disturbance in behaviour. The answer to that is a definite yes because she does no ironing, she lacks the motivation for gardening and cleaning and she has a part loss of motivation for other activities of daily life.
Therefore to my mind, she has reactions to stresses of daily living which causes modification of daily living patterns, a marked disturbance in thinking and a definite disturbance in behaviour.
Therefore, she has any two of those. I have already argued that she has need for some supervision and direction.
Therefore in my mind, she meets the Comcare Guides definition for a 25% impairment because she meets all three criteria as well as the need for some supervision and direction.
Let me just state that in my opinion, the Comcare Guides do not offer clear definitions and there is a degree of interpretation that can explain the differences in whole body impairment arrived at by myself against that derived by my colleague, Dr Edwards-Smith.” (original emphasis) (Exhibit A8)
Dr Proud was referred to the following passage from Dr Edwards-Smith’s report of 15 July 2013 (see paragraph 77 below):
“ PSYCHIATRIC HISTORY
Ms KTKY told me that she did not think she needed a psychiatrist, but was happy to see her psychologist, Val Kostic, 1 or 2 occasions per month. She said that Ms Kostic helps her to solve problems, teaches her relaxation techniques and helps her to address her negative thoughts.”
Asked whether Ms Kostic’s treatment (as described in the above extract) would constitute “direction” for the purposes of Table 5.1 in the Guide, Dr Proud said that it probably constitutes “direction for [the applicant’s] psychological toolkit that translates into action”. He added that Ms Kostic was “not helping her directly with activities of daily living” but rather “helping her with pre-contemplative thoughts”.
In cross-examination Dr Proud reiterated that, unlike Dr Edwards-Smith, he had not made a psychiatric diagnosis of Pain Disorder or Somatoform Disorder in the applicant’s case.
The Evidence of the Medical Witnesses called by the Respondent
Dr Patrick Hanrahan
Dr Hanrahan, Consultant Rheumatologist, said that he has been in full-time practice in rheumatology since 1986. Dr Hanrahan confirmed that he had seen the applicant on several occasions and had prepared reports regarding the applicant dated 9 February 2009, 12 July 2012, 17 May 2013 and 25 February 2015.
Dr Hanrahan’s report of 9 February 2009 related to an assessment of the applicant which he made on 22 January 2009 at the request of the respondent. It is unnecessary to refer further to that report in these reasons.
Dr Hanrahan’s report of 12 July 2012, which is addressed to the respondent, refers to an assessment of the applicant on 19 June 2012 and relevantly states as follows:
“ Ms KTKY attended at your request pursuant to Section 57 of The Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) for the purposes of assessment of their [sic] claim for permanent impairment under Sections 24 and 27 of the SRC Act and specifically:
· whether condition(s) caused by the compensable injury are permanent
·the degree of permanent impairment of the claimant as a result of the injury, addressed as whole person impairment (WPI)
·the amount of any non economic loss resulting from the effects of any permanent impairment.
1.INTRODUCTION
I have seen and considered the Comcare Compensation Claim for Permanent Impairment application form and supporting documents and the Comcare Non-Economic Loss Questionnaire form and supporting documents.
I have also seen and considered the extremely lengthy documentation accompanying and have referred predominantly to 168478/02.
Ms KTKY attended the consultation unaccompanied.
No interpreter was necessary.
According to your letter the assessment is to the degree of impairment in accordance with the Guide to the Assessment of the Degree of Permanent Impairment Edition 2.1. This was assessed [sic] at the website.
I note the assessment is for ‘a chronic pain syndrome’.
2.HISTORY AS GIVEN BY THE CLAIMANT
Brief medical history and relevant personal details:
Ms KTKY tells me that she is probably going through her menopause, has pain and is depressed, otherwise there are no specific problems. She had a previous whiplash following an MVA in 1998, pancreatitis in 1999 when pregnant with her daughter and has had two Caesareans, an appendicectomy and cholecystectomy. She neither smokes nor drinks and is currently taking Endep 20 mg nocte, Tramadol 100 mg SR bd, Citalopram 20 mg daily (for depression), and Panadol ‘back and neck’ eight daily and Nurofen approximately twice per week.
Brief history of employment:
Ms KTKY was retired in 2010. She last worked in July 2007. She did not return to work after that. She was employed by Centrelink performing a variety of tasks including use of a computer, reception and interviewing duties. She had been working five hours per day, five days per week, part-time, since 1999 because of the birth of her daughter and this was further educed to four hours per day, five days per week.
History of the compensable injury(s):
Ms KTKY informed me that she became unwell in 1993 and injured ‘my neck with pain down the right arm and hand and down to the low back and right leg and groin’. She described that her pain had continued since then. Her history since then is to be found in numerous letters and documents which have been attached and which I will not reiterate.
History of symptoms and treatment following the injury(s):
This is also to be found in the correspondence which you attached and which I will not reiterate.
Current symptoms:
Ms KTKY describes of [sic] persistent pain. This is in the right side of her neck, radiating over the right shoulder, to the scapula, under her arm and axilla, over the thorax to the right breast and similarly but not quite as severely on the left side. She is able to sleep on her left side but not on her right side because this is very painful and causes nightmares which can exacerbate the pain. She describes the pain as being very sharp ‘like a knife cutting my flesh inside me’. She has constant pain but with sharp exacerbations with prolonged sitting for more than 10-15 minutes or writing for more than 60 minutes. She has to regularly get up and move around. At night she uses a pillow to hold the right arm slightly abducted and flexed. She also puts a pillow under the right arm and she lies on her back, to elevate the arm but ‘not to [sic] high’. She has to constantly move the right arm around to be able to get to sleep. She has intermittent numbness in the right hand, ‘the whole hand’ from the wrist into the tips of all fingers with pins and needles radiating up the entire arm to the shoulder. The pins and needles and numbness is particularly severe at night and she will also get an exacerbation of numbness in the right hand with repetitive tasks. She is right handed. She feels that her hands are generally a little swollen, variably, and she tries not to wear her rings. Swelling is most severe on the right and is diffuse . In airconditioning her neck becomes more stiff, her hands become cold and when it is cold the right hand goes more pale than the left. When the neck and arm are more severe she also has some numbness in both hands.
She has had surgery of various forms and none of this has helped. The last surgery she had was in March 2011 and she informed me that the surgeon ‘cut a bone in the back of my shoulder’. She had previously had acromioplasty but the last surgery in March 2011 she described as being more complicated. She had six operations in total and did not want any more but she has informed me that she will ‘be covered for future medical care and surgery if necessary’.
She had carpal tunnel decompression in October 2008 and March 2009 and also had surgery over the right elbow ulnar nerve by Dr Peter Hales. This helped briefly but the pain then recurred.
She continued to feel depressed because despite doing everything recommended, as she put it she had ‘lost my job, I have lost my health, I have lost my husband’. Her husband left in October 2011 saying that he had ‘had enough because I am always sick’. She was unable to help him in his business.
Present work status:
She is not working.
Present activities:
Ms KTKY can do driving with short distances, driving from her home to South Perth which would be approximately 10 km. She told me she had to have four breaks when she stopped the car and did five minutes of stretching before driving. She does not take her medication when she is driving. She has Comcare help with the housework for four hours a fortnight and two hours a month gardening. She does cooking if this is easy and in fact does most of the cooking. Her daughter helps with the dishes and she lives with her children aged 13 and 9 and her 76 year old mother. Her mother helps a great deal. She does the shopping in brief amounts, doing several trips to the shop because she is unable to lift heavy weights. She does not do ironing, uses a washing machine, and the cleaning lady, and her daughter or mother hang the washing out. She cannot hang out the washing because of difficulty with repetitive abduction of her arm and she does not garden.
She finds it difficult to read books because of pain on looking down and holding the book in a fixed position, she does some television watching and tried to do swimming but could not cope with this. She does short walks in the park with her children and finds it difficult to sleep. She is sleeping around four hours per night and does not sleep much during the day.
She has a very restricted social life telling me that ‘all my friends walked away when we separated’. She no longer rides her bicycle but she is able to do all self-care apart from some difficulty drying her back.
Current and proposed treatment:
Ms KTKY sees her psychologist once a month and she tries to think positively and pace her activities during the day. She sees her general practitioner intermittently for drug prescribing and she has been on Citalopram for depression since 2008. She told me that she does feel better on this with less suicidal ideation.
3.FINDINGS ON PHYSICAL/CLINICAL EXAMINATION
Her height was 159 cm, weight 64 kg. Posture and gait were normal with no particular difficulty dressing or undressing. She appeared to be overtly depressed. There was minimal difficulty with her jacket and pull-over and there was no suggestion that range of motion was greater while dressing or undressing than during the examination but she was able to complete the task without major problems.
Head/Neck:
She has evidence of arthroscopic surgery scars around both shoulders. There was no particular wasting, no abnormality of posture, no deformity . She had diffuse tenderness around the neck, shoulders and arms, particularly the right. There was no abnormality of colour or temperature around the face or neck and there was a full range of flexion, extension and rotation in the neck. Rotation to the left resulted in a pulling sensation on the right as did rotation to the right resulting in a pulling sensation on the left. Lateral flexion was slightly reduced at 20° bilaterally.
Upper Limbs/Shoulder Girdles:
There was no abnormality on inspection of her upper limbs, there was diffuse tenderness with a degree of hyper-reactivity. On examination of the left shoulder she had flexion and abduction limited to 90°, internal rotation was to the lateral hip and around 90°, external rotation 70°. The right shoulder was more restricted with around 90° flexion, 70° abduction, normal internal rotation, external rotation around 70°. On the right shoulder she had pain on resisted abduction and adduction as well as on impingement testing. In the left shoulder she had pain on resisted abduction only. There was no evidence of any neurological abnormality objectively but she had subjective alteration to soft touch and pinprick over the whole of the right side of her body including her face, arm, trunk and right leg. Provocation tests for lateral epicondylitis, de Quervain’s test and carpal tunnel syndrome were all negative. There was a scar over the right lateral elbow and very minimal scarring for carpal tunnel compression bilaterally. There was a full range of motion in the elbows, wrists and fingers, normal grip and grip strength and no evidence of any arthropathy.
…
6. ASSESSMENTS
…
Degree of Whole Person Impairment (WPI) of Injuries that are permanent:

Having regard to the whole of the medical evidence before it, the Tribunal considers that, had the applicant also claimed compensation for permanent impairment in respect of her other existing compensable mental injury, namely, “chronic pain disorder”, it would have been open to the Tribunal to consider and, subject to the requirements of procedural fairness, to determine whether the applicant had in fact sustained a mental condition of “chronic pain disorder”: see Telstra Corporation Ltd v Hannaford (2006) 151 FCR 253.
Assuming for present purposes, however, that a claim for compensation for permanent impairment in respect of both of the applicant’s compensable mental injuries, namely, “major depressive disorder” and “chronic pain disorder”, had been made by the applicant and was before the Tribunal, the matter of the degree of permanent impairment resulting from each of those compensable mental injuries would have arisen for determination: Canute v Comcare (2006) 226 CLR 535.
The only evidence before the Tribunal regarding the degree of permanent impairment of the applicant resulting from both of her compensable mental injuries of “major depressive disorder” and “chronic pain disorder” is that of Dr Edwards-Smith (being the only psychiatrist, whose reports are in evidence, who made a psychiatric diagnosis of both disorders in the applicant’s case). Dr Edwards-Smith’s evidence was that her assessment of the degree of permanent (psychiatric) impairment of the applicant was 10% under Table 5.1 in Part 1 of the Guide and that she was unable to “split up” that impairment assessment as between the two abovementioned psychiatric disorders which she had diagnosed in the applicant’s case.
In the Tribunal’s opinion, the effect of Dr Edwards-Smith’s abovementioned evidence is that the applicant’s impairment resulting from her compensable “chronic pain disorder” mental injury is indistinguishable from, and fully equated with, her impairment resulting from her compensable “major depressive disorder” injury: cf Robson v Military Rehabilitation and Compensation Commission (2013) 214 FCR 1 at 8 [33]. The Tribunal notes, furthermore, that it has been determined that the date of both compensable mental injuries is the same, namely, 18 June 2008 (T38, 2103/6692).
Accordingly, if a claim for compensation for permanent impairment in respect of both of the applicant’s compensable mental injuries, namely, “major depressive disorder” and “chronic pain disorder”, had been made by the applicant and was before the Tribunal, it would have determined, on the basis of the evidence of Dr Edwards-Smith, that the total degree of permanent impairment of the applicant resulting from those mental injuries was 10% under Table 5.1 in Part 1 of the Guide and that compensation was payable to her under s 24 of the SRC Act on that basis. The Tribunal would also have determined that the non-economic loss suffered by the applicant as a result of those mental injuries or that impairment was to be assessed on the basis of the non-economic loss scores under Tables B1, B2, B3.1, B3.2, B3.3, and B4 in Division 2 of Part 1 of the Guide determined by the respondent in its determination of 7 August 2013 (T64, 2013/6692) and that compensation was payable to her under s 27 of the SRC Act on that basis.
Application 2013/4143
It is common ground that full-time work hours in respect of the applicant’s position with Centrelink were 36.75 hours (36 hours and 45 minutes) per week. In the decision under review, however, it was determined that the amount of weekly compensation for incapacity for work payable to the applicant, pursuant to s 19 of the SRC Act, in respect of her abovementioned compensable physical injuries (namely, the injuries to her neck and shoulders, the subject of Application 2013/0186), for the period from 4 September 2000, was to be calculated on the basis that her “normal weekly earnings” from that date were to be calculated on the basis of part-time work hours, namely, 25 hours per week for the period from 4 September 2000 to 30 January 2005, and 20 hours per week for the period from 31 January 2005.
The calculation of the amount of the applicant’s “normal weekly earnings” for the period from 4 September 2000 may involve the application of s 8(10) of the SRC Act. The parties addressed this matter on the basis that the Tribunal was required to determine whether, in the period from 4 September 2000, the applicant’s work hours were reduced (from 36.75 hours per week to 25 hours per week on and from 4 September 2000 and to 20 hours per week on and from 31 January 2005) as a result of her compensable physical injuries or by reason of her voluntary election or any other matter unrelated to her compensable physical injuries.
In order to determine this matter, it is convenient for the Tribunal to consider the circumstances in the following three periods:
·the period from 4 September 2000 to 30 January 2005;
·the period from 31 January 2005 to 28 October 2010;
·the period from 29 October 2010 (being the date on and from which the applicant ceased to be employed by the Commonwealth).
The period from 4 September 2000 to 30 January 2005
It is common ground that, in the year 2000, the applicant returned to work following a period of maternity leave. Although the applicant, in para 43 of her witness statement (Exhibit A1 – see paragraph 25 above), stated that she “returned to work in or about July/August 2000 and returned to full-time duties with Centrelink”, she ultimately accepted, when referred to a Centrelink record of her work dates and work hours, that she returned to work on 4 September 2000 and that her work hours were 25 hours per week from 4 September 2000 to 30 January 2005. She also acknowledged that she was working full-time hours at the time of the commencement of her maternity leave in June 1999.
Although the applicant stated (in para 44 of her written statement) that, by reason of her experiencing “another onset of symptoms” in early 2001, Dr Norcott “reduced [her] hours to 25 hours per week”, Dr Norcott did not recall having a conversation with the applicant about her return to work on 4 September 2000; nor did he recall medically certifying her as fit for restricted hours of 25 hours per week at that time. The Tribunal notes that no Workers’ Compensation Progress Medical Certificates regarding the applicant’s incapacity for work in the period from 4 September 2000 to 30 January 2005 are in evidence.
The Tribunal does not accept the applicant’s evidence to the effect that, when she returned to work from maternity leave in 2000, she was unaware of her right to claim compensation in respect of an incapacity to work full-time hours (see para 45 of her witness statement set out in paragraph 25 above). The applicant had previously made claims for workers’ compensation in 1993 and 1997 and, in respect of her 1993 claim, she referred (in para 10 of her witness statement - Exhibit A1) to “having [her] hours of work reduced” as a result of the relevant injury, and, in respect of her 1997 claim (which related to the compensable neck and shoulder injuries in this proceeding), a Workers’ Compensation Progress Medical Certificate regarding her unfitness for work was issued by her (then) general practitioner, Dr Joe Chamizo, on 17 March 1997 (T3, 2013/0186). In those circumstances, the Tribunal regards the applicant’s evidence to the abovementioned effect as unconvincing.
Having regard to the abovementioned evidence of the applicant and of Dr Norcott, the Tribunal is not satisfied that the reduction in the applicant’s work hours to 25 hours per week on and from 4 September 2000 occurred as a result of her compensable physical injuries. It is not for the Tribunal to speculate as to the reason(s) for that reduction in the applicant’s work hours but, given that she was working full-time hours immediately prior to the commencement of her maternity leave in June 1999 and commenced to work part-time hours of 25 hours per week immediately upon her return to work from maternity leave on 4 September 2000 without any medical certification of her incapacity to work full-time hours at that time, the Tribunal considers it reasonable to infer that (as the respondent has submitted) she voluntarily elected to work part-time hours of 25 hours per week upon her return to work on 4 September 2000 and that her work hours were reduced to 25 hours per week on and from 4 September 2000 by reason of that voluntary election. Furthermore, given that the applicant continued to work part-time hours of 25 hours per week, without any medical certification of her incapacity to work full-time hours, from 4 September 2000 to 30 January 2005, the Tribunal likewise regards it as reasonable to infer that she continued to work part-time hours of 25 hours per week from 4 September 2000 to 30 January 2005 by reason of, and in accordance with, that voluntary election.
Accordingly, the Tribunal is not satisfied that the reduction in the applicant’s work hours from 36.75 hours per week to 25 hours per week from 4 September 2000 to 30 January 2005 occurred as a result of her compensable physical injuries. Rather, the Tribunal is satisfied, and finds, that that reduction in work hours occurred by reason of the applicant’s voluntary election. That being the case, s 8(10)(a) of the SRC Act is applicable in calculating the amount of the applicant’s “normal weekly earnings” under s 8 of the SRC Act in the period from 4 September 2000 to 30 January 2005 for the purpose of determining the amount of weekly compensation for incapacity for work payable to the applicant, pursuant to s 19 of the SRC Act, for that period. Accordingly, for the purpose of the application of s 8(10)(a) of the SRC Act in the applicant’s case, “the amount per week of the earnings that the [applicant] would receive if … she were not incapacitated for work”, within the meaning of s 8(10)(a), for the period from 4 September 2000 to 30 January 2005, is to be calculated on the basis that the applicant’s normal work hours were 25 hours per week for that period.
The period from 31 January 2005 to 28 October 2010
In paras 50–51 of her witness statement the applicant sought to explain the reasons for her working reduced hours upon her return to work after her second maternity leave in 2005. In short, her explanation was that she returned to work in or about April 2005 and worked reduced hours of 25 hours per week “on the advice of [her] doctor”, and that, as at 6 October 2005 when she saw Dr Dennis at the request of Centrelink, she was “only working 20 hours per week due to [her] symptoms”, her hours having been “reduced by Dr Norcott”. In her oral evidence, however, the applicant acknowledged that, as indicated in Centrelink records, she had returned to work on 31 January 2005 on 20 hours per week, but she maintained that Dr Norcott had advised her that she could not continue to work 25 hours per week and that she accordingly reduced her work hours to 20 hours per week.
Dr Norcott, in his oral evidence, contradicted certain assertions made by the applicant in paras 50, 51 and 55 of her witness statement (Exhibit A1). In particular, Dr Norcott said that:
·he would not have recommended to the applicant that she take two years off work immediately following the birth of her second child in February 2003 (cf para 50 of Exhibit A1);
·he was not seeing the applicant in early 2005 and, to the best of his recollection, he did not advise her to reduce her work hours to 25 hours per week at that time (cf para 51 of Exhibit A1);
·the applicant next attended him on 12 September 2005 and he had not been aware until then that she had been working 20 hours per week - to the best of his recollection, he had not previously advised her to work 20 hours per week (cf para 55 of Exhibit A1).
Clinical records of Mirrabooka Medical Centre (where Dr Norcott practised until May 2004) and of Thomsons Lake Medical Centre (where Dr Norcott has subsequently practised) indicate that the applicant consulted Dr Norcott at Mirrabooka Medical Centre on 24 May 2004 and at Thomsons Lake Medical Centre on 12 September 2005, and do not contain any reference to a consultation by the applicant with Dr Norcott between those two dates (Exhibit R1, ST8, p 585; Exhibit A3).
The Tribunal notes, furthermore, the signed “Part time work application/agreement” forms (referred to in paragraph 93 above) pursuant to which the applicant worked 20 hours per week for the following periods:
·from 31 January 2005 to 31 July 2005;
·from 1 August 2005 to 2 December 2005;
·from 29 May 2006 to 29 November 2006; and
·from 30 November 2006 to 12 February 2007. (Exhibit R1, ST3, pp 259–266)
The Tribunal also notes the bundles of Workers’ Compensation Progress Medical Certificates, and general (non-workers’ compensation) Medical Certificates, referred to in paragraph 91 above (Exhibit A2).
It is common ground that, in September 2005, Centrelink requested the applicant to increase her work hours (up to full-time hours or to 30 hours per week) but she declined to do so. She then consulted Dr Norcott on 12 September 2005 and Dr Norcott wrote a letter, dated 12 September 2005, to Centrelink in which he stated that the applicant had “a limited capacity for clerical work hours before her chronic neck pain is aggravated” and confirmed that she was, “by virtue of her pathology, limited to 15–20 hours per week” (T13, 2013/4143 – see paragraph 40 above). The Tribunal accepts Dr Norcott’s evidence that his recollection was that the applicant had requested him to write that letter when she attended him on 12 September 2005 and that he had done so in the course of that consultation.
The applicant was subsequently referred by Centrelink to occupational physicians, Dr Stephen Dennis and Dr Steven Overmeire, whose reports dated, respectively, 6 October 2005 and 1 November 2006, are set out in paragraphs 88 and 89 above.
Having regard to the evidence referred to in paragraphs 149–155 above, the Tribunal is satisfied that, immediately upon the applicant’s return to work from maternity leave on 31 January 2005, she worked 20 hours per week but it is not satisfied that her work hours were so reduced as a result of her compensable physical injuries. Rather, the Tribunal is satisfied, on the basis of the abovementioned “Part-time work application/agreement” forms signed by the applicant, that she voluntarily elected to work 20 hours per week for the periods covered by those forms, namely:
·from 31 January 2005 to 2 December 2005; and
·from 29 May 2006 to 12 February 2007. (Exhibit R1, ST3, pp 259–266 – see paragraphs 93 and 152 above)
The Tribunal notes, furthermore, that no Workers’ Compensation Progress Medical Certificates, in respect of the period from 31 January 2005 to 10 January 2006, are in evidence. There is, however, in evidence a bundle of Workers’ Compensation Progress Medical Certificates covering the periods from 11 January 2006 to 17 May 2006 and from 20 January 2010 to (relevantly) 13 January 2011, and a bundle of general (non-workers’ compensation) Medical Certificates issued in the intervening period from 17 May 2006 to 20 January 2010 (Exhibit A2). Also in evidence are the reports of Dr Dennis and Dr Overmeire, dated 6 October 2005 and 1 November 2006, referred to in paragraphs 88, 89 and 155 above.
The Tribunal notes, however, that the abovementioned Workers’ Compensation Progress Medical Certificates, which were issued in 2006, refer to an injury in “August 2005” which is described as “cervico-thoracic ST injury preexisting with overuse flare of pain related to work duties” and were issued in the context of return to work rehabilitation programmes developed by Work Focus whose object was gradually to return the applicant to her (voluntarily chosen) existing work hours of 20 hours per week. Those medical certificates and the abovementioned reports of Dr Dennis and Dr Overmeire are, in the Tribunal’s opinion, not inconsistent with the proposition that the applicant wished to work no more than 20 hours per week irrespective of her compensable physical injuries and that her normal work hours at that time were 20 hours per week in accordance with her voluntary election, not as a result of her compensable physical injuries.
The Tribunal attaches little weight to the applicant’s self-serving evidence (see paragraph 30 above) that, if she had not had her relevant work-related symptoms, she would have continued to work full-time hours. Nor (for the reasons expressed in paragraph 146 above) does the Tribunal accept the applicant’s evidence to the effect that, when she returned to work from maternity leave in 2005, she was unaware of her right to claim compensation in respect of an incapacity to work full-time hours (see para 51 of her witness statement set out in paragraph 25 above). The Tribunal, on the other hand, attaches great weight to the abovementioned “Part-time work application/agreement” forms, which the applicant voluntarily signed and by reason of which her normal work hours were, on her voluntary application, reduced to 20 hours per week from 31 January 2005. Had the applicant truly wished to work full-time hours on and from 31 January 2005, but was prevented from so doing by reason of incapacity as a result of her compensable physical injuries, Workers’ Compensation Progress Medical Certificates could, and presumably would, have been issued by her general practitioner so certifying, but no such Medical Certificate is in evidence. As regards Dr Norcott’s abovementioned letter of 12 September 2005, the Tribunal is of the opinion that that letter does not constitute a certification or expression of opinion by Dr Norcott that the applicant was limited to 15–20 work hours per week as a result of her compensable physical injuries. When that letter is read with Dr Norcott’s clinical notes of the same date (part of Exhibit A3), it seems to the Tribunal that Dr Norcott was then attributing the applicant’s limited capacity to work only 15–20 hours per week to her cervical soft tissue injuries caused by her motor vehicle accidents in 1998 and 2002 rather than to her compensable physical injuries.
Having regard to the whole of the relevant evidence before it, the Tribunal is not satisfied that, when the applicant returned to work on 31 January 2005 on reduced work hours of 20 hours per week, that reduction in work hours occurred as a result of her compensable physical injuries. Nor is the Tribunal satisfied that the continuation of the applicant’s reduced work hours of 20 hours per week from 31 January 2005 was attributable to her compensable physical injuries. Rather, the Tribunal is satisfied that that reduction in the applicant’s work hours on and from 31 January 2005 occurred by reason of, and in accordance with, her voluntary election. That being the case, s 8(10)(a) of the SRC Act is applicable in calculating the amount of the applicant’s “normal weekly earnings” under s 8 of the SRC Act in the period from 31 January 2005 to 28 October 2010 (her last day of employment by the Commonwealth) for the purpose of determining the amount of weekly compensation for incapacity for work payable to the applicant, pursuant to s 19 of the SRC Act, for that period. Accordingly, for the purpose of the application of s 8(10)(a) of the SRC Act in the applicant’s case, “the amount per week of the earnings that the [applicant] would receive if … she were not incapacitated for work”, within the meaning of s 8(10)(a), for the period from 31 January 2005 to 28 October 2010, is to be calculated on the basis that the applicant’s normal work hours were 20 hours per week for that period.
The period from 29 October 2010
On 29 October 2010 the applicant ceased to be employed by the Commonwealth, having been retired on invalidity grounds on that date. That being the case, s 8(10)(b) of the SRC Act is applicable in calculating the amount of the applicant’s “normal weekly earnings” under s 8 of the SRC Act from that date for the purpose of determining the amount of weekly compensation for incapacity for work payable to the applicant, pursuant to s 19 of the SRC Act, from that date.

The respondent conceded, on the basis of the decision of the Full Court of the Federal Court of Australia in Comcare v Simmons (2014) 220 FCR 102, that, in applying s 8(10)(b) of the SRC Act in order to calculate the amount of the applicant’s “normal weekly earnings” in the period from 29 October 2010, any personal choice made by the applicant after the date of her compensable physical injuries and during her Commonwealth employment, which affected the amount of her earnings in that period – including (relevantly) a prior voluntary election by her to work reduced hours – is irrelevant. Accordingly, the respondent conceded that, for the period from 29 October 2010, the amount of the applicant’s “normal weekly earnings” was to be calculated on the basis that her normal work hours were full-time hours of 36.75 hours per week, pursuant to s 8(10)(b)(i) of the SRC Act. In the Tribunal’s opinion, that concession was rightly made. Accordingly, for the purpose of the application of s 8(10)(b)(i) of the SRC Act in the applicant’s case, “the amount per week of the earnings that the [applicant] would receive if … she had continued to be employed by the Commonwealth … in the employment in which … she was engaged at the date of the injury”, within the meaning of s 8(10)(b)(i), for the period from 29 October 2010, is to be calculated on the basis that the applicant’s normal work hours were full-time hours of 36.75 hours per week for that period.
Determination
Accordingly, the Tribunal, for the purpose of calculating the amount of the applicant’s “normal weekly earnings” under s 8 of the SRC Act in order to determine the amount of weekly compensation for incapacity for work payable to her, pursuant to s 19 of the SRC Act, in respect of her compensable physical injuries for the following periods, determines that:
·for the period from 4 September 2000 to 30 January 2005, the applicant’s normal work hours were 25 hours per week;
·for the period from 31 January 2005 to 28 October 2010, the applicant’s normal work hours were 20 hours per week;
·for the period from 29 October 2010, the applicant’s normal work hours were 36.75 hours per week.
Decision
For the above reasons, the Tribunal decides as follows:
Application 2013/0186
The decision under review is affirmed.
Application 2013/6692
The decision under review is affirmed.
Application 2013/4143
The decision under review is set aside and, in substitution therefor, it is decided that, for the purpose of determining the amount of weekly compensation for incapacity for work payable to the applicant, pursuant to s 19 of the SRC Act, in respect of the compensable injuries relating to her neck and shoulders, for the period from 4 September 2000, the amount of her “normal weekly earnings” is to be calculated under s 8 of the SRC Act on the basis that her normal work hours in the following specified periods were as follows:
·from 4 September 2000 to 30 January 2005 – 25 hours per week;
·from 31 January 2005 to 28 October 2010 – 20 hours per week;
·from 29 October 2010 – 36.75 hours per week.

I certify that the preceding 164 (one hundred and sixty-four) paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop.
.........[sgd D Brodie]..................................................
Administrative Assistant
Dated 8 May 2015

Dates of hearing 9, 10, 11 March 2015

Counsel for the Applicant Mr J Fiocco

Solicitors for the Applicant Slater & Gordon

Counsel for the Respondent Ms C Dowsett

Solicitor for the Respondent Australian Government Solicitor

Division	General Administrative Division
File Numbers	2013/0186 2013/4143 2013/6692
Re	KTKY
APPLICANT
And	Comcare
RESPONDENT

Tribunal	Deputy President S D Hotop
Date	8 May 2015
Place	Perth

Dates of hearing	9, 10, 11 March 2015
Counsel for the Applicant	Mr J Fiocco
Solicitors for the Applicant	Slater & Gordon
Counsel for the Respondent	Ms C Dowsett
Solicitor for the Respondent	Australian Government Solicitor