Leon Thompson and Comcare - [2014] AATA 486

[2014] AATA 486

Division General Administrative Division

File Numbers

2013/6223

2013/6224

Re

Leon Thompson

APPLICANT

And

Comcare

RESPONDENT

DECISION

Tribunal
Deputy President S D Hotop

Date 17 July 2014

Place Perth
The Tribunal decides as follows:

Application 2013/6223

· the decision under review is set aside and, in substitution therefor, it is decided that the respondent is liable under s 14(1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“SRC Act”) to pay compensation to the applicant, in accordance with that Act, in respect of “Adjustment Disorder with Depressed and Anxious Mood” suffered by him on 3 September 2012;

Application 2013/6224

· the decision under review is set aside and, in substitution therefor, it is decided that the respondent is liable to pay compensation to the applicant, pursuant to s 19 of the SRC Act, for incapacity for work for the period from 27 June 2013 to 31 July 2013.

..................[sgd]...................................
S D Hotop

Deputy President
CATCHWORDS
COMPENSATION – Commonwealth employees – applicant suffered compensable back injury – applicant subsequently suffered mental ailment – mental ailment contributed to, to significant degree, by compensable back injury – mental ailment a disease – mental ailment a compensable injury – applicant incapacitated for work as result of compensable back injury – decisions under review set aside
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth), s 4(1), s4(9), s 5A, s 5B, s 7(4), s 14(1) and s 19(1)
CASES
Comcare v Mooi (1996) 69 FCR 439

Ilsley v Wattyl Australia Pty Ltd (1997) 75 FCR 1

Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452

REASONS FOR DECISION
Deputy President S D Hotop
17 July 2014
Introduction

Leon Thompson (“the applicant”) has applied to the Tribunal for review of two “reviewable decisions” made by Comcare (“the respondent”) under s 62 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“SRC Act”), namely:
·a reviewable decision, dated 11 October 2013, whereby the respondent affirmed a determination, dated 5 August 2013, that it was not liable under s 14 of the SRC Act to pay compensation to the applicant in respect of “adjustment disorder with depressed and anxious mood” (Application 2013/6223);
·a reviewable decision, dated 11 October 2013, whereby the respondent affirmed a determination, dated 27 August 2013, that it was not liable to pay compensation to the applicant for incapacity for work, pursuant to s 19 of the SRC Act, for the period from 27 June 2013 to 31 July 2013 (Application 2013/6224).
The Evidence
The evidence before the Tribunal comprised the “T Documents” (T1–T75, pp 1–360) lodged by the respondent in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) and:
·Exhibits A1–A4 tendered by the applicant;
·Exhibits R1–R4 tendered by the respondent; and
·the oral evidence of the applicant and of Dr Stephen Proud.
The Factual and Medical Background
The following factual and medical background appears from the T Documents and Exhibits and is not in dispute.
The applicant, who was born in July 1967, is, and at all material times has been, employed by the Department of Agriculture, Fisheries and Forestry (“the Department”) as a Biosecurity Officer/Quarantine Officer (APS Level 4).
On 7 September 2011 Dr Devasish Roy issued a Workers’ Compensation PROGRESS Medical Certificate in respect of a condition described as “tender L4/S1, acceptable movements” suffered by the applicant on 17 February 2011, certifying that the applicant was fit for restricted duties from 7 September 2011 to 21 September 2011 and recommending six sessions of physiotherapy. (T75, p 321)
On 9 September 2011 Dr Francis Akinyami issued a Workers’ Compensation FIRST [sic] Medical Certificate in respect of “back injury: muscular”, noting the applicant’s description of how that injury occurred as “repetitive bending at work”. (T5)
Further workers’ compensation progress medical certificates in respect of the applicant’s lower back condition were issued on 21 September 2011, 19 October 2011, 23 January 2012, 28 February 2012, 13 March 2012, 24 April 2012, 15 May 2012 and 23 May 2012 (Exhibit A2; T75, pp 322–325)
Dr John Pearce, Consultant Occupational Physician, examined the applicant, at the request of the Department, on 16 February 2012 and provided a report, dated 20 February 2012, to the Department which states (inter alia):
“ …
REASON FOR REFERRAL
The reason for referral is low back [sic] which I would classify as mild in severity and which remains under-treated (see later in this report).
Mr Thompson’s back injury dates back to February 2011. At this time while involved in prolonged bending conducting bulk fertiliser inspections he developed an aching in his lower back. He continued working, the pain became worse.
He did nothing for many months as he was worried what the back injury might do to his employment, eventually attending a General Practitioner. He said he was now under Dr Roy at Gosnells. He has previously been under the care of the Carlisle Medical Group.
Mr Thompson was told he had a soft tissue-type injury which was treated with physiotherapy and an exercise program. He has taken anti-inflammatory and analgesic medication intermittently but not in a structured manner.
To my surprise he is currently on no medication.
He has not had imaging studies, he has not had specialist referral.
He has recently been transferred to the Regional Office where he is on light duties performing project work.
…
OPINION
Mr Thompson is a 44 year-old man who is suffering from a soft tissue-type injury of his lower back which I would classify as mild in severity.
He remains under-treated. I have referred him back to his General Practitioner for more structured conservative treatment including the judicious use of anti-inflammatory and analgesic medication in conjunction with physiotherapy and an exercise program.
Given compliance with this treatment I anticipate a full recovery and return to full and normal duties within the next 6-8 weeks.
In the interim period he would best remain on his current light duties.
…” (T6)
On 30 April 2012 the applicant lodged with the Department a completed “Claim for Workers’ Compensation” form, signed by him and dated 22 April 2012, whereby he claimed compensation under the SRC Act for “lower back pain” said by him to have been suffered on “11/2/2011” at his usual workplace by reason of “bending and lifting” while performing his duties of sampling and inspecting fertiliser (T7). [The Tribunal notes, however, that a Departmental file note made on 18 February 2011 indicates that the applicant “complained of lower back pain as a result of fertiliser inspection” on 17 February 2011 (T20, p 126)].
Dr Pearce provided a further report, dated 21 May 2012, to the Department, relating to his examination of the applicant on 17 May 2012, which states (inter alia):
“ …
PROGRESS
Changes since previous review on 16 February 2012 are as follows:
Treatment
Mr Thompson is under the care of his General Practitioner Dr Roy and a Physiotherapist.
His treatment includes regular physiotherapy and the anti-inflammatory Nurofen on a periodic basis. Mr Thompson has not been treated with analgesics, he has not had investigations in the form of imaging studies or blood tests.
He has had two exacerbations and flare ups of acute pain related to bending over and twisting activities.
Rehabilitation
Rehabilitation has included transfer to the regional office on light duties.
Activities
He is restricted in his household chores and tasks. He is unable to garden or wash his car.
Work Capabilities
He is ‘struggling’ with his current light duties particularly with bending over, lifting, and prolonged sitting.
Overall
Disappointingly he is worse than at previous review.
PRESENT SITUATION
The current symptoms and points of significance as given to me at the time of consultation include the following:
1.      Mr Thompson’s pain is worse than previously
2.      It now occurs every day
3.      It varies in intensity between 5 out of 10 and 10 out of 10
4.      It is aggravated by bending and lifting
5.      The pain is in his right lower back
6.      It is stabbing in nature
7.      There is no leg pain
8..     There is no dysthesia
9.      There is no sphincteric disturbance
10.     His pain is not aggravated by coughing or sneezing
11.     It is prolonged by prolonged sitting
12.     He is unable to wash his car or garden
13.     He cannot vacuum
14.     He acknowledges frustration with his pain
15.     He denies depression
16.     He is unable to do sit ups
17.     His treatment is Nurofen and physiotherapy
18.     He has not had analgesics, investigations or specialist referral
…
OPINION
Mr Thompson is suffering from mechanical back pain which is more severe than previously. He remains under-treated.
The time has come for more aggressive investigations and treatment. I have written to his General Practitioner Dr Roy recommending imaging studies to establish a precise diagnosis (the clinical findings are consistent with facet joint arthropathy) and the regular use of anti-inflammatory and analgesic medication for a 2-3 week period.
Further treatment including the possible need for invasive pain management will be determined by imaging studies. Blood studies may also merit consideration to exclude rare and exotic rheumatity and arthritity.
I recommend further review in eight weeks’ time when the results of his imaging studies should be available to further advise on case management.
In the interim period Mr Thompson would best remain on light duties with minimum lifting and bending and ideally with a mixture of standing and sitting duties as prolonged sitting can be detrimental.
In the event of Mr Thompson’s pain increasing further he will need to be placed on sick leave followed by consideration of a graded return to the workforce over reduced hours.
…” (T9)
A report of an x-ray of the applicant’s lumbar spine, dated 25 May 2012, which is addressed to Dr Roy, states as follows:
“ X-RAY LUMBAR SPINE
Clinical Details: Back pain for a long time, pain is work related. Tender right paraspinal region L2 to L4.
Findings: Shallow curvature convex to the left. No spondylosis. There is mild spondylosis L2/3, L3/4 and L4/5. There is partial sacralisation of L5. Pseudoarticulation is noted on the left. The SI joints are normal. No sinister lesion.
…” (T10)
On 15 June 2102 a delegate of the respondent made a determination denying liability under s 14 of the SRC Act to pay compensation to the applicant for “sprain of unspecified site of back”. (T14)
Following a request by the applicant for a reconsideration of the determination of 15 June 2012, a Senior Review Officer of the respondent, on 26 September 2012, made a reviewable decision revoking that determination and accepting liability under s 14 of the SRC Act to pay compensation to the applicant for “‘aggravation of lumbar sprain’, sustained on 17 February 2011.” (T23)
In the meantime, on 3 September 2012, Dr Shankar Shetty (general practitioner) referred the applicant to a counsellor, Denise Byrne, in the following terms:
“ …
Long discussion – In summary, been having work related back pain, and is on a rtw programme. Reports anxiety since the last few wks as he finds there is nothing much he can do at work and the managers have not been very cooperative. Feels frustrated, low self esteem, feels bullied, angry toward the system. Struggles to sleep, feels low. Denies any ideas of self harm or to others. Does not feel angry towards any particular individuals. Has had anxiety issues few yrs back when he was going through separation. Seen a counsellor and was ok since. Feels he is happy at home and reports no other stressors. The back pain is one to two out of 10. Takes nurofen 3-4 days a wk if needed. O/e good insight, appropriate affect.
good eye contact.
Diagnosis:
anxiety/stress.
…” (T22)
Ms Byrne provided a report, dated 30 October 2012, to Dr Shetty and to the respondent which states as follows:
“ Thank you, Dr Shetty, for referring Mr Thomson [sic] on 03/09/12 via a Workers Compensation Claim, as above, for treatment of work stress and anxiety related to aggravation of a lumbar spine injury and frustrations with a RTW program at his workplace.
INFORMATION SUPPLIED:
Leon states that as a Quarantine Officer, he is expected to carry out various tasks related to checking imported goods for damaging contents. On 17/02/11, he was working at a Rockingham site, inspecting fertilizer containers for wheat seeds, which required 180 squats per container for 36 containers each lift comprising half a kilo. He stated he was ‘in agony that day’ and he reported his condition to his boss. He was placed on lighter duties the next day. He states he was encouraged to ‘self-manage’ the injury for six months. This means he avoided repeated heavy lifts, but that he received no treatment for his injury.
Then, in September 2011, he reported the injury to his doctor (Dr Roy at Tandara Medical Practice, Gosnells.) Since he tested Mr Thomson’s [sic] range of movement and he could touch his toes, he reported there was ‘nothing wrong’. A government Medical specialist (Mr Pierce [sic]) was of the same opinion calling it ‘an undiagnosed, untreated condition.’ He stated that it would ‘be fine within six weeks’. Over time, Mr Thomson’s [sic] injury seemed to get worse, he states. He found his compensation claim was rejected (he states that they told him he ‘filled out the forms wrong’) and he had to pay all his own doctor’s and specialist’s and physiotherapist’s bills. At work, he was able to do less and less as time went on.
Then he was sent to a government medical officer who diagnosed ‘a facet joint arthropy.’ This practitioner recommended surgery. However, Dr Roy was continuing to say there was nothing wrong and that Mr Thomson [sic] should continue at work.
At work, the solution was applied to take Mr Thomson [sic] off all duties and to merely observe. Ongoingly, the day-to-day schedule was that he be of no use or have no duties for several months. This was when Mr Thomson’s [sic] mental health became an issue. The frustration and anxiety of feeling un-useful and under-utilized at work slowly eroded his self-esteem and sense of well-being.
This then began to reflect on his home-life. His fiancée, Annie, felt that his dissatisfaction and upset with work was affecting their relationship. The energy and ability to help with their blended family (two children in Margaret River: 14 and 16 years and three children at home: 14, 12 (autistic) and 20 months) was being compromised. He changed doctors and attended Dr Shetty’s general practice. The Commonwealth Rehabilitation Service was employed to review his case, but major delays were still occurring as to where Mr Thomson [sic] could be gainfully employed at his workplace.
Present condition and symptoms:
Mr Thomson’s [sic] back pain was reported to being 1/10 to 2/10 and a constant, low back, dull ache. He feels that he manages this on the daily basis, as he monitors his movements. However, there is sleep disturbance which has affected his mood adversely. Mr Thomson [sic] reports feeling:
·Emotionally drained
·Really, really tired
·Having no purpose or point to his life at present
·Feeling that he is abandoned and that no-one can provide a solution to his problem
·Feeling unwanted by all of the bosses at the different locations where he has previously worked or at any new locations
·Blocked from employment. He was told by one boss: ‘There is no job here for you. I’ll fight to get you out of here.’
·That he can never do his old job again as his injury prevents him from ever doing that repetitive lifting work again.
He gave some history of reporting a bullying and harassment incident by a client on the job two years ago. He reported it to authorities and he fought it right ‘to the top’ to get a hearing for the maltreatment. After much non-cooperation, he was told: ‘Grow up and go back to work. If you can’t handle this, you should be working in a sheltered workshop.’ On reporting this to Human Relations in Canberra, they told him he should not have been treated in this manner. With the memory of this still present in his mind, he began to feel that the current situation may never be adequately resolved, as there was no valuing of his twenty-four years of service and his previous dedication to carrying out his duties.
Recommendations:
Treatment took place for Mr Thomson [sic] on the following dates:
17/10/12 and 23/10/12.
In the first session, the previous history and assessment was taken. Recommendations were to exercise deep breathing strategies (demonstrated) and visualization and meditation strategies he had previously learned. Cognitive behavioural strategies and self-care were also discussed. I recommended self-help literature which would help in regard to recuperating his own sense of self and focusing on being grateful for other blessings he had in life, versus concentrating solely on his work situation. We discussed over-the-counter, natural medications and strategies for re-gaining regular sleep hygiene. We also discussed connecting with family and focusing on healthy, fun activities in order to deflect from worry and obsessive thoughts about work.
In the second session, two things had occurred. He had returned to a job-site two days before, in the nursery, where he was being trained and where the boss was unaware of his mental health problems and previous RTW struggles and was just treating him as an experienced worker learning a new area of work. This he feels was the exact medicine he needed for his recovery.
Secondly, I had reminded him that he knew how to focus, meditate, think positive, use breathing strategies and exercise simple, joyful tasks with family, but had lost his way with feeling that the solution was solely in getting back to work and he had not exercised strategies he already had access to and in which he was competent. The sleep strategies I had given him and the return to work, combined to improve his sleep issues.
He stated that he had not originally felt that he needed therapy and the doctor convinced him that he did. His level of motivation to continue was low. When he cancelled his next appointment, I was not surprised. We agreed that he was not feeling that he needed ongoing help at present, as he was on track and would continue in the manner he was operating now.
…” (T28)
A report of an MRI of the applicant’s lumbar spine, dated 17 October 2012, which is addressed to Dr Shetty, concludes as follows:
“ …
Comment:
1.There is transitional anatomy at the lumbosacral junction with partial sacralisation of the L5 vertebra.
2.Mild degenerative changes are noted at L3/4 and L4/5 disc with shallow disc bulges not causing significant canal stenosis or nerve root impingement.
3.Facet arthropathy is noted at the L3/4 and L4/5 levels. This is most prominent at the L3/4 facet on the right side where it is associated with mild marrow oedema within the articular pillows on both sides of the facet joint.
…” (Exhibit R1)
In the period from 15 October 2012 to 21 June 2013 Dr Shetty periodically issued workers’ compensation progress medical certificates in respect of the applicant’s compensable back injury (T75, pp 326–338). The contents of those medical certificates may be summarised as follows:
·15 October 2012: “Unfit to work due to anxiety and stress … adv to see clinical psychologist”;
·19 October 2012: “Discussed MRI … adv to continue nurofen as and when needed … stay fit, improve core muscle strength through exercise rehab programme … fit for restricted return to work from 22/10/12”;
·12 November 2012: “He is feeling better with anxiety. The back is the same … Fit for restricted return to work …”;
·17 December 2012: “… the back pain is less, impacting less on his usual activities … Fit for restricted return to work …”;
·4 February 2013: “… Has modified the way he does things to avoid back from hurting … Mentally he is happy … Fit for restricted return to work …”;
·8 April 2013: “The back pain is more or less the same, comes on when he bends for an activity … Takes nurofen whenever the back is hurting … Fit for restricted return to work …”;
·17 May 2013: “The back hurts off and on … Manages it with nurofen. The exercise physiologist has completed the supervised gym programme and has recommended continuing the same … The employers are happy to organise that …. Fit for restricted return to work …”;
·24 May 2013: “… Fit for restricted return to work …”;
·28 May 2013: “Frustrated that the employers have not made a decision on his exercise programme. Feels anxious and takes it on [sic] the family … Does not want to go to work. Has not made an appt with the pain specialist as he is not interested … Fit for restricted return to work … adv to see psychologist …”;
·30 May 2013: “Not been to work today. Has had arguments with colleagues yesterday. Reports his anxiety is affecting work and relationship with his colleagues … He reports that he feels bullied by Comcare as his injuries are not been [sic] looked after … Feels angry and frustrated … reports back pain with day to day activities like lowering the window of the car. Does not think that he can go to work and worsen the situation with his colleagues … Totally unfit for work … from today until 6/6/13”;
·6 June 2013: “Grumpy, frustrated. Does not want to go back to work. Reports Comcare is stressing him out and does not want to have a bad working relationship with his colleagues … Reports that if he knows what is the decision from the employer he could at least have a plan for treatment … Totally unfit for work … from today till review in a fortnight”;
·20 June 2013: “The back pain continues … Feels angry, bullied and harassed by the employers as they have not taken a decision on his medical problems, both back and mental health issues. Feels he is not ready to go back to work as he feels angry … OK to return to work as far as the back is concerned. Unfit for work due to mental health issues. Adv to see a psychologist … adv to cut down/stop drinking, start Cymbalta …”;
·21 June 2013: “The back hurts … Could not sleep due to back pain. Wants to have time off work due to back pain and not due to anxiety … Fit for restricted return to work from today. As far as the back is concerned OK for light office duties … Adv to him that as far as the back is concerned it’s better to keep functioning as much as possible like light activities at work and at home … and that would have better outcome in the long term as far as the back is concerned. He does not agree with that advice. Since there is breakdown of doctor patient relationship adv to find a new GP for his future treatment…”.

On 28 June 2013 Dr Chris Pepulani issued a workers’ compensation progress medical certificate in respect of the applicant’s compensable back injury in which he noted as follows:
“ Appear very stressed, the pain in the back settled, however this is being escalated by stress factors, mobility is better and is not being compromised”
and certified the applicant as totally unfit for work from 28 June 2013 to 12 July 2013. (T75, p 339)
On 11 July 2013 Dr Ian Paterson issued a workers’ compensation progress medical certificate in respect of the applicant’s compensable back injury in which he noted as follows:
“ pain continues to be a major limiter to physical activity but the main reason he is unable to return to work is STRESS due to his physical condition and difficulties he is facing in the rehabilitation of these issues”
and certified the applicant as totally unfit for work from 11 July 2013 to 1 August 2013. (T75, p 341)
On 2 July 2013 the applicant was assessed by Dr Stephen Proud, Consultant Psychiatrist, at the request of the respondent, and Dr Proud subsequently provided a report, dated 4 July 2013, to the respondent. Dr Proud also provided a supplementary report, dated 10 June 2014, to the respondent’s solicitors. Dr Proud’s reports are set out in paragraphs 31-32 below.
By letter dated 4 June 2013 (T33) the respondent requested Dr Shetty to provide “an updated medical report” regarding the applicant. Dr Shetty provided a report, dated 9 July 2013, which states as follows:
“ Thank you for your requested report in relation to Leon Thompson and an injury that occurred at work on the 31^st August 2012 [sic], below is my response to your questions:
Mr Thompson first saw me on the 3^rd September 2012. His main issues [sic] at that consultation was stress and anxiety. He saw me again on the 26^th September 2012. His complaints were again stress related. The first occasion his back injury was discussed in detail was on the 8^th October 2012. He reported that he was bending over and doing a task when the back pain was first noticed. He has seen a doctor, physiotherapist and a specialist. His current back pain is ‘off and on’. Some days he had [sic] no back pain, some days the pain is a 10 out of 10 in the pain scale. He reported pain when bending to change the nappy of his child. Standing for too long hurt his back. He reported that he was advised by his specialist to avoid tasks that cause pain ‘as by causing the pain he is aggravating his injury’. There were no ‘red flag’ symptoms or symptoms suggestive of sinister causes for back pain. He reported no past back injury prior to the said incident.
On examination his back movements were normal range. The SLRT was 80 degrees with pain. There were no neurological findings. He could walk on his toes and heels. The lower limb reflexes were normal. There was no spinal tenderness. The area of reported pain corresponded to S1 region. Clinical diagnosis was that of a lower back strain or mechanical low back pain. By this time his back pain can be classified as a ‘chronic low back pain’. He was advised to take simple pain medication like Nurofen and Panadol. He was advised to have an MRI.
He was keen to go through a return to work programme and was ready to work in a role identified suitable by the vocational rehabilitation provider.
Mr Thompson’s MRI showed no significant pathology. He is [sic] advised to go through an exercise programme to help improve core muscle strength. He eventually started doing a Quarantine Officer role. His back pain and anxiety symptoms improved. He was doing this role without many problems.
Mr Thompson’s back pain continued off and on and was limiting the activities at home. He was self managing it with Nurofen and activity modification. He completed the supervised exercise programme. He wanted the gym membership to be continued as he could do some of the exercises in the gym only.
Mr Thompson reports anxiety/stress caused by the way his injury has been handled by the employer. He feels frustrated and angry and reports bullying and harassment by the employer. Currently he does not want to go back to work. He has lack of motivation, feels depressed and drinks excessively. I have referred him to a counsellor.
He is awaiting the decision by the employer to refer him to a psychologist. I have advised him to see his own GP to get a referral under the mental health care plan. I have prescribed him Cymbalta to help his pain and lift his mood.
Diagnosis and prognosis
1)    Please detail the history of Mr Thompson’s condition as reported to you.
As described in summary.
2)    From what specific condition does Mr Thompson currently suffer? Please provide a short description of the condition, including its known origins and progression. Please include clinical signs and symptoms to support your conclusion. If Mr Thompson’s condition has already been resolved, please also provide, where possible, details of the condition.
Chronic low back pain due to mechanical low back strain. Anxiety and depression. Clinical signs and symptoms are included in the summary above. His condition is ongoing.
3)    What is the prognosis for Mr Thompson’s current condition?
Mr Thompson’s prognosis is guarded.
4)    Are there any aspects of the clinical examination which tend to suggest Mr Thompson is:
a)    voluntarily exaggerating his/her symptoms
b)    consciously guarding restriction of movement
c)    displaying symptoms and examination findings inconsistent with the claimed condition
d)    demonstrating a range of movement during your passive observation which were [sic] not replicated during clinical examination.
I have not noticed anything to suggest the above.
Employment relationship
1)    Is/was the aggravation suffered by Mr Thompson related to:
a)    his/her employment as a Quarantine Officer
Yes, Mr Thompson reported back pain following the reported incident.
b)    factors unrelated to work
There are no reports of any factors not related to work causing the back pain.
c)    a pre existing, congenital, constitution or underlying condition
There is no pre-existing condition to account for his back pain.
d)    the natural progression of an underlying condition
No.
e)    underlying degeneration as part of the natural aging process
there are [sic] no significant degeneration.
f)     other health issues
He does have anxiety and depression which is a [sic] complicating his back problems and remains as the single most important factor affecting his recovery.
2)    If Thompson’s [sic] initial condition has been super seeded [sic] by a different condition, please provide your opinion about what factors have contributed to different condition.
He reports that initially he sustained back injury. His back injury got complicated by his anxiety and with depression which he reports is due to the way the employer have [sic] handled his case.
3)    If you consider Mr Thompson’s employment continues to contribute to his/her condition, please explain the basis of your conclusion, having regard to the fact the employment incident occurred on 17 February 2011.
He has developed chronic low back pain. He was self managing the same. He was able to carry on his duties as a Quarantine Officer. As far as the back is concerned he is ok to continue the job of a Quarantine Officer. There is no report of any aggravation at work since he started his duty as a Quarantine Officer. I do not consider his job as a Quarantine Officer is contributing to his back pain.
Treatment
1)    We understand Mr Thompson has been in receipt of the following medical treatment:
·Gym Program –
…
Please provide details of any further medical treatment which may have been provided to Mr Thompson in relation to the condition.
Mr Thompson has completed the supervised gym programme. Agility Rehabilitation have written to me that he can self manage the exercise programme. Mr Johnny Christie from Agility Rehabilitation has written to me that he supports Mr Thompson to continue self managed exercised [sic] in a gym. Mr Thompson’s gym membership has expired. I recommend that he continue his exercise in a gym for a further three months. He can then continue the exercises at home. Application for an extension of gym membership has already been sent.
2)    In your opinion, was all medical treatment reasonable for Mr Thompson to obtain in the circumstances? If not, why not?
As described in answer to question one. He has received reasonable treatment for his back pain.
3)    In your view, how long will Mr Thompson need his current treatment?
Three months in a gym and then self managed exercise at home on an ongoing basis.
Capacity for work
1)    Is Mr Thompson currently medically fit to engage in any type of work?
There is no restriction on Mr Thompson to continue his current duty as a Quarantine Officer as far as his back is concerned.
2)    If you believe Mr Thompson is medically fit to engage in some work, please specify the type of duties he/she could undertake, or specify the duties that should be avoided. In particular:
a)    the type of work Mr Thompson should be able to perform
As described in answer to question one.
b)    the range of movement/s Mr Thompson can undertake in relation to his condition
As described in answer to question one.
c)    for the described range of movement/s please state the length of time which the movements can be performed comfortably
Fulltime.
d)    the number of hours per week Mr Thompson should be able to perform
Full shift.
e)    details of any work restrictions and limitations Mr Thompson has in relation to his condition addressing the activities below as well as any other limitation Mr Thompson may have:
i)     Can Mr Thompson drive? If so how long for?
Yes
ii)    Can Mr Thompson stand? If so how long for?
iii)   Can Mr Thompson lift objects? If so how much weight?
iv)   Can Mr Thompson sit? If so how long for?
As described in answer to question one.
3)    If Mr Thompson is not fit to return to work, when do you believe that he/she would be able to undertake a return to work program?
As described in answer to question one.
4)    Are there any other factors causing inability to work or work restrictions? If so, please provide details.
Currently he has been certified unfit for duty due to mental health issues, namely anxiety and depression.
5)    Is Mr Thompson capable of undertaking a rehabilitation program? If so, please advise:
a) whether the program should be graduated (if yes, please provide a schedule of weekly working hours)
b)   details of any work restrictions
c)   a time frame in which a return to normal working hours could be achieved
As far as his back is concerned he does not need any further rehabilitation programme. Once he finishes the gym based exercises he can self manage the back pain with simple medication like Nurofen and exercises. He does need treatment for his anxiety and depression. I have referred him to a psychologist.
Until mental health issues have been fully treated, I do not see him returning back to his normal duties in the short to medium term.
…” (T46)
By letter dated 5 August 2013 a delegate of the respondent notified the applicant as follows:
“ Consideration of liability for a Secondary condition
I refer to your diagnosed conditions of Anxiety and Depression, and have given consideration as to whether these conditions should be accepted as secondary to your claim for ‘aggravation of lumbar sprain’.
I note your previous General Practitioner, Dr Shetty, diagnosed you as suffering from the conditions of Anxiety and Depression, however I have considered your condition as Adjustment Disorder with Depressed and Anxious Mood, as diagnosed by Dr Proud (Consultant Psychiatrist).
…
Determination
After considering the information provided in relation to the development of your Adjustment Disorder with Depressed and Anxious Mood, I have determined that there is no liability under section 14 of the Act for these conditions [sic] in relation to your claim for ‘aggravation of lumbar sprain’.
Dr Proud opines that your psychological conditions appear to be a combination of your ongoing back pain as well as your dispute with Comcare. However, Dr Shetty notes you feel these conditions were largely due to the actions of Department of Agriculture, Forestry and Fisheries (DAFF) in handling your case. His earlier information on file suggests he does however mean Comcare’s actions.
…” (T50, p 232)
By letter dated 27 August 2013 a delegate of the respondent notified the applicant as follows:
“ I refer to your claim for incapacity benefits for the period 27 June to 31 July 2013.
As you are aware, Comcare did not have supporting medical evidence to accept liability for a secondary condition, namely ‘Adjustment Disorder with Depressed and Anxious Mood’. This was confirmed in a letter to you dated 5 August 2013, which enclosed a statement of reasons.
The period of incapacity benefits claimed for the above dates is supported by Dr Papulani’s [sic] certificate dated 28 June 2013 and Dr Paterson’s certificate dated 11 July 2013. Both certificates note the main reason you were unfit to work for this period as stress and work-related anxiety.
These issues were discussed in Comcare’s determination to you dated 5August 2013, and relate to stress and anxiety around administrative actions rather than your compensable condition. As such this condition and related time off work were found not to be compensable.
I have assessed the evidence on your claim file and under section 19 of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act), determined that compensation is not payable for incapacity benefits for the period 27 June and [sic] 31 July 2013. …” (T60, p 273)
By letter dated 11 October 2013 a Review Officer of the respondent notified the applicant that she had “decided that the determination dated 5 August 2013 should be affirmed”. (T73, p 312).
By letter dated 11 October 2013 a Review Officer of the respondent notified the applicant that she had “decided that the determination dated 27 August 2013 was correct” and that he was “therefore not entitled to incapacity benefits under section 19 of the SRC Act for the period of 27 June 2013 to 31 July 2013”. (T74, p 316)
On 28 November 2013 the applicant lodged with the Tribunal an Application for Review in respect of each of the abovementioned “reviewable decisions” dated 11 October 2013.
The Applicant’s Evidence
The applicant’s evidence-in-chief comprised an outline of his case and a recitation of the medical background, to which it is unnecessary to refer here.
In cross-examination the applicant gave evidence to the following effect:
·he is presently working 5 hours per day and having treatment, comprising an exercise programme at the gym and sitting in the spa and sauna for relaxation techniques, for 2½ hours per day;
·he is on anti-depressants for his psychological condition and he also sees a psychologist/counsellor once a week;
·he also had a previous workers’ compensation claim for lumbar sprain in 2005 for which liability was accepted by the respondent;
·in the period between mid June 2011 (when the respondent initially disallowed his compensation claim) and late September 2011 (when the respondent ultimately accepted his compensation claim) his mental condition deteriorated – “it was a struggle”;
·in that period he did not have a dispute with Comcare – rather, he blamed his employer for the initial rejection of his claim because they had incorrectly completed the relevant claim form;
·after his claim was accepted his employer failed to give him appropriate work duties;
·when he commenced the gym exercise programme and had counselling sessions with Denise Byrne, his mental condition improved;
·in about April 2013 he started to experience increased anxiety and depression because of “flare-ups” in his back condition;
·at that time there was no communication to him from his Comcare case manager;
·his main dispute was with his employer but there seemed to be no co-operation between his employer and Comcare regarding the management of his rehabilitation;
·he regards his back condition rather than Comcare’s handling of his case as the main cause of his depression and anxiety;
·he nevertheless adheres to his statement in his request for reconsideration of the respondent’s determination of 5 August 2013 – namely, that his Adjustment Disorder with Depressed and Anxious Mood is “a direct result of the prolonged denial of access to the appropriate treatment by Comcare for back pain …” (T58, pp 260, 266).
In response to questioning by the Tribunal, the applicant said that he believed that his incapacity for work in the period from 27 June 2013 to 31 July 2013 was due to a combination of factors including his back pain and anxiety resulting from his back pain.
The Evidence of Dr Stephen Proud
Dr Proud, Consultant Psychiatrist, confirmed that the had assessed the applicant on 2 July 2013 at the request of the respondent and prepared a report dated 4 July 2013, and that he, at the request of the respondent’s solicitors, had prepared a supplementary report dated 10 June 2014. He confirmed that he adhered to the contents of those reports.
Dr Proud’s report of 4 July 2013 states as follows:
“ …
HISTORY:
Presenting Complaints:
Mr Thompson is a 45-year-old man who was born in Papua New Guinea.   Both his parents were missionaries. He is the middle of three boys. They came back to Perth when he was aged 8. He had a good childhood. He completed Year 12. He has been married previously, but divorced in 2000 and at that time needed counselling for the divorce. He is currently living with his fiancée, his son aged 16, daughter 15 and son aged 2 ½ and stepchildren aged 15 and 13. His fiancée is working.
After Year 12 he went to university and had [sic] a Bachelor of Science in Agriculture. He has worked for DAFF for 24 years as a senior quarantine officer. He injured his lower back in February 2011 allegedly repetitively lifting fertiliser samples. He was put on light duties but there was no improvement so after eight months he went to his GP who initiated Workers’ Compensation Claim and physiotherapy was started. It took nine months for that claim to be approved, he alleges.
In that time he was not given any work to do at all, so he developed anxiety and so on the basis of that through his GP’s advice counselling was approved. With the counselling and the continuation of the exercise program he had improved and was backed [sic] on modified duties at work in November 2012. The modified duties were still to protect his lower back pain. He then stated that the gym program was ceased which he did not agree with. He did not go back to the gym program himself and pay privately and without that exercise his back pain deteriorated and he became stressed and anxious again compounded by the fact that he alleges that his request for gym was rejected and the communication between him and Ms [A V] was poor. He stopped his counselling when he had got back to his modified job opportunities but is requested [sic] again with the recurrence in his depression and anxiety. I asked him why he did not do his own exercise program when it was not being paid for by the department and he did not give a comprehensive answer but said that he definitely wants to restart the gym program, restart counselling and get back on track.
Only recently has his GP for the first time started him on an antidepressant. He has lodged a complaint against what he called bullying and this complaint was lodged approximately 17 June 2013. He does not have a lawyer. He stated that the gym program was re-approved on 21 June 2013 but he has not gone because of his depression. He last worked on approximately 28 May 2013 but he was put on sick leave for anxiety and depression by his GP.
Work History:
He has not worked since 28 May 2013.
Current Status:
He falls off to sleep but wakes throughout the night and his energy, motivation and enjoyment of life are very poor. His sex drive and concentration fluctuates. His ability to cope with stress is poor. He has no thoughts of suicide. He is irritable, anxious, numb and feels disconnected. He has chronic low back pain and he feels nauseous and he has small muscle twitching because of his anxiety he says.
Lifestyle:
He takes no nicotine, no illicit substances. He is currently drinking a bottle of wine a night but since he has been off work he was consuming three bottles of wine a day.
Current Medication/Treatment:
He is under the care of his GP and he has been put on Cymbalta 60 mg a day five days ago by his GP. This is the first antidepressant he has ever had. He last had counselling nine months ago.
Past Medical/Psychiatric History:
There is no family history of psychiatric problems. He had counselling post his divorce in 2000. He had a right knee ACL reconstruction in the past. He has chronic low back pain. He has never seen a specialist for this pain. He has not seen a pain specialist but an MRI was paid for by the department. He has not had a past history of trauma.
Personal/Social History:
This has been described.
MENTAL STATE EXAMINATION:
Mr Thompson was unshaven and dishevelled. He looked very tired. His mood was dysthymic and anxious. He had sweaty palm [sic]. He spoke clearly but he often spoke with his eyes closed. There was a congruent reduction in his affective reactivity. Clinical testing revealed normal memory in short term and concentration.
SUMMARY AND ASSESSMENT:
In answer to your specific questions:
Schedule of Questions
Diagnosis and prognosis
1.Please detail the history of Mr Thompson’s condition as reported to you.
The history is of Mr Thompson injuring his lower back and then becoming stressed because of the continuing problems with his back and what he perceives as lack of accommodation by work and this has become worse in recent times as he has developed interpersonal difficulties with Ms [V] from Comcare.
2.From what specific condition does Mr Thompson currently suffer? Please provide a short description of the condition, including its known origins and progression. Please include clinical signs and symptoms to support your conclusion. If Mr Thompson’s condition has already been resolved, please also provide, where possible, details of the condition.
He is suffering currently an Adjustment Disorder with Depressed and Anxious Mood or possibly a Major Depressive Disorder of moderate severity. The cause of his Depression appears to be a combination of his ongoing pain in his lower back as well as his dispute with Comcare and in his view the way they are not rapidly acceding to his request. He alleges bullying but I am not in a position to confirm or refute his assertion.
3.What is the prognosis for Mr Thompson’s current condition?
The prognosis is uncertain.
4.Are there any aspects of the clinical examination which tend to suggest Mr Thompson is:
a)    Voluntarily exaggerating his symptoms
b)    Consciously guarding restriction of movement
c)    Displaying symptoms and examination findings inconsistent with the claimed condition
d)    Demonstrating a range of movement during your passive observation which were [sic] not replicated during clinical examination.
There is no evidence in the interview that is [sic] exaggerating his psychiatric symptoms. As I am a psychiatrist and not a physical medicine specialist, I cannot comment on whether he may or may not be exaggerating his pain. It is not my place to do a physical examination of Mr Thompson.
…
Employment relationship
1.Is/was the condition suffered by Mr Thompson related to:
a)   His employment as a Quarantine Officer
b)     Factors unrelated to work
c)   A pre-existing, congenital, constitutional or underlying condition
d)     The natural progression of an underlying condition
e)   Underlying degeneration as part of the natural aging process, or
f)   Other health issues.
The original condition appears to be related to his employment as a quarantine officer as he offered no history that suggested that other factors were important. It appears that injuring his back was the first step in a cascade of steps that has led to the current position.
2.   If the condition suffered by Mr Thompson related to employment, please describe, in your own words, the degree and extent to which employment contributed to the condition.
The original back injury appeared to produce some degree of Anxiety and Depression but not at a psychiatric level. It reached a psychiatric level when he started to have a dispute with Comcare then it appeared to recover when he got what he wanted namely counselling and gym and it appears to have relapsed again when gym was stopped and when his most recent request for a [sic] counselling was ceased.
3.   If Mr Thompson’s initial condition has been superseded by a different condition, please provide your opinion on what factors have contributed to the different condition.
No, it is the same as in [sic] the initial condition.
4.   If you consider Mr Thompson’s employment continues to contribute to his condition, please explain the basis of your conclusion, having regard to the fact the employment incident occurred on 17 February 2011.
There have been no further injuries to his back but it appears that he has developed antipathy towards Comcare and there has been disputation around the gym and counselling.
Treatment
1.   We understand Mr Thompson has been in receipt of the following medical treatment:
·Health and Fitness Program – 2 Supervised and 1 unsupervised
·Physiotherapy – 7 sessions up to 31/01/2013
·Psychology – 2 sessions up to 31/01/2013
Please provide details of any further medical treatment which may have been provided to Mr Thompson in relation to the condition.
He has provided no evidence of any other treatment except that his GP has recently started him on antidepressants.
2.   In your opinion, was all medical treatment reasonable for Mr Thompson to obtain in the circumstances? If not, why not?
Mr Thompson has not seen a medical physical specialist for his lower back nor has he seen a pain specialist nor has he seen a psychiatrist. He has not had reasonable medical treatment over the last two years.
3.   In your view, how long will Mr Thompson need his current treatment?
This cannot be answered at this stage. What he needs currently is to see a psychiatrist and get on appropriate medication. This will require 10 sessions. He will then need a clinical psychologist for 20 sessions. He is going to also need to be reviewed by an orthopaedic surgeon or by a neurologist to determine the extent of the pathology in his back to see whether there are psychological factors exaggerating his experience of pain.
4.   Please advise whether Mr Thompson would benefit from any other medical treatment. Please provide recommended treatment, frequency and commencement date.
Please see my answer to question 3 above.
Capacity for work
1.   Is Mr Thompson currently medically fit to engage in any type of work? If not can you please specify which condition or injury is preventing him from engaging in any type of work
From a psychiatric point of view, he is fit to resume part-time work 20 hours a week as a quarantine officer. I cannot speak to his physical capacities for work.
2.   If you believe Mr Thompson is medically fit to engage in some work, please specify the type of duties he/she could undertake, or specify the duties that should be avoided. In particular:
a)The type of work Mr Thompson should be able to perform
He could do any job in the office or as a quarantine officer provided there were no significant cognitive, interpersonal or stress demands.
b)The number of hours per week Mr Thompson should be able to perform
20 hours per week.
c)Details of any work restrictions
The restrictions regarding work are there [sic] should not be too much contact with clients or too many cognitive demands and of course I cannot speak to the physical restrictions.
d)In your opinion, are there any social situations which would impact on Mr Thompson due to his condition?
Mr Thompson has Depression and most people with depression do not cope well in social situations and that is why I stress that his interpersonal contact should be limited while he is recovering from his depression.
3.   If Mr Thompson is not fit to return to work, when do you believe that he/she would be able to undertake a return to work program?
Fitness for work is best determined by his rehab provider, his treating psychiatrist, psychologist and GP. In my opinion, the return to work program should be decided by those treating professionals in concert each [sic] other as well as with Ms [V] from Comcare.
4.   Are there any other factors causing inability to work or work restrictions? If so, please provide details.
The factor causing issues at work at present is the poor relationship Mr Thompson perceived he has with Ms [V] and the claim for alleged bullying that he has lodged.
5.   Is Mr Thompson capable of undertaking a rehabilitation program? If so, please advice [sic]:
a)Whether the program should be graduated (if yes, please provide a schedule of weekly working hours)
He is capable from a mental health perspective of undergoing a rehab program. I think it would be reasonable in the very first instance for him to do 12 hours a week (three half days a week) and then his treating team could gradually increase that.
b)Details of any work restrictions
I have mentioned previously the work restrictions.
c)A time frame in which a return to normal working hours could be achieved.
It is difficult to say but if there are no complicating factors from a psychiatric point of view his working hours could be achieved over the next three months.
If there are any other matters which you feel are relevant to your assessment which have not been addressed in response to the list of questions, please provide additional comments.
I suggest a follow-up report in six months’ time and I suggest that a copy of this report be forwarded to his GP.
I definitely recommend that he get back into his gym program and counselling but to make sure that any gains achieved or [sic] sustained he should get an opinion from an orthopaedic surgeon or a neurosurgeon as to the degree of real pathology in his lumbar spine to eliminate the possibility of an exaggeration of his pain. The other factor from a psychiatric point of view is for him to re-establish a rehabilitation provider and a good working relationship with management of Comcare so that any return to work program could be successful.
…” (T42)

Dr Proud’s supplementary report of 10 June 2014 states as follows:
“ Thank you for your letter dated 22 May 2014 seeking a supplementary report. This supplementary report is based upon my examination of the large volume of documentation that you supplied and should be read in conjunction with my previous report to yourself [sic] dated 4 July 2013.
I will now answer your schedule of questions.
3. Schedule of questions
Please review the enclosed documentation, in reference to the chronology, and provide us with answers to the following questions.
(a)At what point in time do you consider the Applicant’s condition reached a ‘psychiatric level’. Please provide a detailed explanation for your answer.
This is a very difficult question to answer and is not a straightforward question as it is somewhat philosophic. Psychiatric or psychological symptoms are deemed to have reached a psychiatric level when a consultant psychiatrist believes that the symptoms are interfering with a person’s functioning in one or more significant domains of their life and will not recover spontaneously without intervention.
The first person to refer Mr Thompson to see a psychologist because of his anxiety was his GP who referred him in approximately September 2012. Therefore from that GP’s perspective Mr Thompson’s symptoms had reached a psychiatric level deemed in that GP’s opinion to require psychological intervention but not medication. I note that Mr Thompson never got to see that psychologist and hence in June 2013 the GP started Cymbalta, an antidepressant. I also note that the rehabilitation psychologist said that Mr Thompson himself reported that his anxiety and depression became troublesome to him in April 2103. Therefore we have three different dates. One date in September 2012 when the GP referred him to see a counsellor, the other date was April 2013 when Mr Thompson said his symptoms were becoming very troublesome and then the other date is June 2013 when his GP started antidepressant medication. I would say that his symptoms reached a psychiatric level requiring counselling when his GP thought the same and referred him to a counsellor in September 2012, however please see my responses to (b) and (c) below.
(b)For liability to arise under the Act, it is not necessary that a person have a condition diagnosable under DSM-V, rather the test is that they suffer from a ‘condition that is outside the boundaries of normal human responses to distressing events’. When you refer to the condition reaching a ‘psychiatric level’, are you referring to the condition being able to be diagnosed under DSM-V, or are you referring to a set of symptoms as set out in this paragraph? If it is the former, please give your opinion as to the point in time when the condition met the threshold for liability to arise?
In reference to (a) above my comment is that from the GP’s perspective Mr Thompson’s symptoms were sufficient to require treatment in September 2012 and that a GP would have used [sic] the level at a psychiatric level at that point in time. However for me as an independent psychiatrist examining the evidence from my perspective, I would have said that Mr Thompson’s anxiety and depression were within a reasonable and expected response to his physical injury up until the time when he started to have significant conflict with Comcare and that from my perspective his symptoms would have reached a psychiatric level at that point in time. I am not sure of the exact dates of that and therefore based on the detailed chronology that you provided I would say that from a psychiatrist’s perspective Mr Thompson’s levels would definitely have reached a psychiatric level in June 2013 when he was started on Cymbalta.
(c) Are there any other comments you wish to make.
The other comment is that the questions you ask are exceedingly difficult to give an answer to and are somewhat philosophical and depend on the perspective of the person engaging the patient. Each different person whether it be a GP, a counsellor, a vocational therapist, a partner, a friend or the patient themselves would have a different level for them to believe Mr Thompson’s symptoms ‘became psychiatric’. They would all be slightly different to me as a consultant psychiatrist. There is a grey area but the grey area becomes black and white in my opinion when Cymbalta was started in June 2013.
…” (Exhibit R2)
In his oral evidence Dr Proud reiterated his opinion that the cause of the applicant’s depression was “a combination of his ongoing pain in his lower back as well as his dispute with Comcare …”. He added that, in his opinion, there was a link between the applicant’s lower back pain and his depression. Asked by the Tribunal how significant a link was the applicant’s lower back pain, Dr Proud said that it was significant but not necessarily more important than the other specified cause of the applicant’s depression. Asked by the Tribunal whether he considered the applicant’s ongoing lower back pain to be a significant contributing factor to his depression, Dr Proud answered in the affirmative.
As regards his statement (in answer to question 3(a) in his supplementary report) that the applicant “never got to see that psychologist”, Dr Proud accepted that the applicant did see a counsellor, namely, Denise Byrne, following a referral from his GP in September 2012, and that his abovementioned statement was inaccurate. He added, however, that “the substantial point was that the GP made a referral so the GP thought that there were psychological/psychiatric issues at that point”.
The Relevant Legislation
The SRC Act relevantly provides as follows:
“ 4       Interpretation
(1)     In this Act, unless the contrary intention appears:
…
ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
…
impairment means the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function.
…
(9)   A reference in this Act to an incapacity for work is a reference to an incapacity suffered by an employee as a result of an injury, being:
(a)an incapacity to engage in any work; or
(b)an incapacity to engage in work at the same level at which he or she was engaged by the Commonwealth or a licensed corporation in that work or any other work immediately before the injury happened.
…
5A   Definition of injury
(1)     In this Act:
injury means:
(a)     a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.
…
5BDefinition of disease
(1)     In this Act:
disease means:
(a)     an ailment suffered by an employee; or
(b)     an aggravation of such ailment;
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.
…
(3)   In this Act:
significant degree means a degree that is substantially more than material.
…
7     Provisions relating to diseases
…
(4)   For the purposes of this Act, an employee shall be taken to have sustained an injury, being a disease, or an aggravation of a disease, on the day when:
(a)the employee first sought medical treatment for the disease, or aggravation; or
(b)the disease or aggravation resulted in the death of the employee or first resulted in the incapacity for work, or impairment of the employee;
whichever happens first.
…
14Compensation for injuries
(1)   Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
…”
Section 19 of the SRC Act provides for the payment of compensation for “incapacity for work” (as defined in s 4(9)) resulting from an “injury” (as defined in s 5A(1)).
The Issues
The issues for the Tribunal’s determination are as follows:
·whether the applicant has suffered a mental “injury” as defined in s 5A(1) of the SRC Act, being a “disease” as defined in s 5B(1) of the SRC Act, in respect of which the respondent is liable under s 14(1) of the SRC Act to pay compensation to him;
·whether the applicant was “incapacitated for work as a result of an injury”, within the meaning of s 19(1) of the SRC Act, for the period from 27 June 2013 to 31 July 2013, such that the respondent is liable to pay compensation to him pursuant to s 19 of the SRC Act?
Analysis and Findings
Has the applicant suffered a mental ailment, being a “disease” as defined in s 5B(1) of the SRC Act?
In Comcare v Mooi (1996) 69 FCR 439 the Federal Court of Australia (Drummond J) said (at 443–444):
“ … in my opinion, the expressions used in the Safety, Rehabilitation and Compensation Act to define the various forms of mental condition that can amount to ‘injuries’ compensible under s 14(1), do not appear to be used in any technical medical sense, but have the meanings they bear in ordinary usage. It follows, in my opinion, that, so far as events that do not result in any physical harm to a worker or in the development of any observable pathology in the worker's body but which only have some form of psychological consequence are concerned, the worker will be able to show the existence of a mental ailment, disorder, defect or morbid condition even though his resultant condition cannot be identified with the label of a recognised medical condition. But it is, I think, essential for such a worker to be able to demonstrate that, having regard to his circumstances, he is in a condition that is outside the boundaries of normal mental functioning and behaviour. …”
The respondent accepts that the applicant has suffered a mental ailment in the sense described in Comcare v Mooi (above). The respondent, however, disputes that that mental ailment was “contributed to, to a significant degree, by” the applicant’s employment by the Department and, accordingly, submits that that mental ailment is not a “disease” as defined in s 5B(1) of the SRC Act. More specifically, the respondent submits that that mental ailment was suffered by the applicant by reason of his dispute with the respondent regarding his claim for compensation for his lower back condition and was not contributed to, to a significant degree, by his employment by the Department.
The earliest medical evidence before the Tribunal which indicates that the applicant was suffering from a mental ailment is Dr Shetty’s letter of 3 September 2012 whereby he referred the applicant to Ms Byrne for counselling, with a stated diagnosis of “anxiety/stress” (T22 – set out in paragraph 14 above). Dr Proud, in his oral evidence, clearly regarded Dr Shetty’s referral of the applicant to a counsellor on 3 September 2012 as significant in that it indicated that Dr Shetty was then concerned about the applicant’s psychological/psychiatric state. Neither party disputed that the applicant suffered from a mental ailment, in the sense described in Comcare v Mooi (above), on 3 September 2012, and, on the basis of Dr Shetty’s letter of that date, the Tribunal so finds.
As regards the factor(s) which caused the applicant to suffer that mental ailment on 3 September 2012, the Tribunal accepts the opinion expressed by Dr Proud in his report of 4 July 2013 (T42 – set out in paragraph 31 above) that that mental ailment was caused by “a combination of his ongoing pain in his lower back as well as his dispute with Comcare …”.
As regards those two causal factors, the Tribunal notes that, having regard to the evidence before it, the applicant had been suffering ongoing lower back pain resulting from his compensable back injury since February 2011, whereas his dispute with the respondent regarding his claim for compensation for his back injury sustained on 17 February 2011 effectively commenced with the respondent’s initial disallowance of his claim on 15 June 2012 (T14) and was continuing as at 3 September 2012. The Tribunal notes, furthermore, that Dr Shetty’s referral letter of 3 September 2012 to Ms Byrne refers not only to “work-related back pain” but also to the applicant’s anxiety regarding his work duties and the lack of co-operation of his “managers”.
In his oral evidence Dr Proud expressed the view that the applicant’s ongoing lower back pain was a significant factor contributing to the applicant’s mental ailment, albeit not necessarily the major contributing factor. The Tribunal accepts Dr Proud’s evidence. It may be that the applicant’s dissatisfaction with the respondent’s initial rejection of his compensation claim, together with his dissatisfaction regarding his work duties and unco-operative managers (as mentioned by Dr Shetty), were the major causal factors relating to the contraction of his mental ailment on 3 September 2012, but, in the Tribunal’s opinion, having regard to Dr Proud’s evidence and Dr Shetty’s referral letter of 3 September 2012, the applicant’s ongoing work-related back pain was also a factor which contributed to his contracting that mental ailment. Furthermore, on the basis of Dr Proud’s abovementioned evidence, the Tribunal is satisfied, and finds, that the applicant’s ongoing work-related back pain contributed, to a significant degree (as defined in s 5B(3) of the SRC Act), to the mental ailment suffered by him on 3 September 2012.
It follows, from the lastmentioned finding, that the mental ailment suffered by the applicant on 3 September 2012 is a “disease” as defined in s 5B(1) of the SRC Act, and the Tribunal so finds.
The respondent is liable under s 14(1) of the SRC Act to pay compensation to the applicant in respect of the mental ailment suffered by him on 3 September 2012
The mental ailment, being a “disease”, suffered by the applicant on 3 September 2012 is an “injury” as defined in s 5A(1) of the SRC Act. On the basis of the evidence before it, including, in particular, Dr Proud’s report of 4 July 2013, the Tribunal is satisfied that that mental injury has resulted in impairment of the applicant. It follows that the respondent is liable under s 14(1) of the SRC Act to pay compensation, in accordance with that Act, to the applicant in respect of that mental injury.
As regards the appropriate description of that mental injury, the Tribunal, having regard, in particular, to Dr Proud’s report of 4 July 2013, is satisfied that that mental injury is most appropriately described as “Adjustment Disorder with Depressed and Anxious Mood”, and it so finds.
Pursuant to s 7(4) of the SRC Act, the applicant’s mental “injury”, being a “disease”, is, for the purposes of that Act, taken to have been sustained by him on 3 September 2012, being the date on which, according to the evidence before the Tribunal, he first sought medical treatment for that “disease”.
Accordingly, the Tribunal determines that the respondent is liable under s 14(1) of the SRC Act to pay compensation, in accordance with that Act, to the applicant in respect of “Adjustment Disorder with Depressed and Anxious Mood” suffered by him on 3 September 2012.
Was the applicant “incapacitated for work as a result of an injury”, within the meaning of s 19(1) of the SRC Act, for the period from 27 June 2013 to 31 July 2013?
It will suffice, for the purposes of s 19(1) of the SRC Act, if a compensable “injury” is “an effective or operative cause of” an incapacity for work: Ilsley v Wattyl Australia Pty Ltd (1997) 75 FCR 1 at 6. Furthermore, the relevant compensable “injury” need not be the “immediate proximate cause” of the incapacity for work: Kooragang Cement Pty ltd v Bates (1994) 35 NSWLR 452 at 463.
In the present case the best evidence regarding the cause(s) of the applicant’s incapacity for work in the period from 27 June 2013 to 31 July 2013 comprises the contemporaneous workers’ compensation progress medical certificates issued by his general practitioners, namely, the medical certificate issued by Dr Pepulani on 28 June 2013 (T75, pp 339–340) and the medical certificate issued by Dr Paterson on 11 July 2013 (T75, pp 341–342).
Dr Pepulani's medical certificate of 28 June 2013 certified the applicant as totally unfit for work from 28 June 2013 to 12 July 2013. That medical certificate was expressly issued in respect of the applicant’s compensable back injury dated 17 February 2011 and described the cause(s) of his incapacity for work as follows:
“ Appear very stressed, the pain in the back settled, however this is being escalated by stress factors, mobility is better and is not being compromised.”
In the Tribunal’s opinion that medical certificate does not indicate that the applicant’s compensable back injury is not an effective and operative cause of his total incapacity for work for the specified period. Rather, that medical certificate, in the Tribunal’s opinion, indicates that the applicant’s total incapacity for work for the specified period results from a combination of back pain resulting from his compensable back injury, and “stress factors”. The cause of those “stress factors” is not specified in that medical certificate but it is therein indicated that those “stress factors” are escalating his back pain. The Tribunal is satisfied, on the basis of that medical certificate, that the applicant’s back pain resulting from his compensable back injury is an effective and operative cause of his total incapacity for work for the specified period.
Dr Paterson’s medical certificate of 11 July 2013 certified the applicant as totally unfit for work from 11 July 2013 to 1 August 2013. That medical certificate was expressly issued in respect of the applicant’s compensable back injury dated 17 February 2011 and described the cause(s) of his incapacity for work as follows:
“ pain continues to be a major limiter to physical activity but the main reason he is unable to return to work is STRESS due to his physical condition and difficulties he is facing in the rehabilitation of these issues.”
In the Tribunal’s opinion that medical certificate unequivocally indicates that the back pain experienced by the applicant as a result of his compensable back injury is an effective and operative cause of his total incapacity for work for the specified period.
The Tribunal notes that the abovementioned medical certificates do not cover 27 June 2013. The Tribunal notes, however, that a workers’ compensation progress medical certificate was issued in respect of the applicant’s compensable back injury, dated 17 February 2011, by Dr Shetty on 21 June 2013 (T75, p 338) whereby Dr Shetty certified that the applicant, as a result of back pain, was fit for restricted return to work (“light office duties”) from 21 June 2013.
On the basis of the workers’ compensation progress medical certificates referred to in paragraphs 50–53 above, the Tribunal is satisfied, and finds, that:
·on 27 June 2013 the applicant was partially incapacitated for work, within the meaning of s 4(9)(b) of the SRC Act, as a result of his compensable back injury dated 17 February 2011;
·from 28 June 2013 to 31 July 2013 the applicant was totally incapacitated for work, within the meaning of s 4(9)(a) of the SRC Act, as a result of his compensable back injury dated 17 February 2011.
Accordingly, the Tribunal determines that the applicant was “incapacitated for work as a result of an injury”, within the meaning of s 19(1) of the SRC Act, for the period from 27 June 2013 to 31 July 2013, and that the respondent is liable to pay compensation to him, pursuant to s 19 of the SRC Act, for incapacity for work for that period.
Decision

For the above reasons the Tribunal decides as follows:
Application 2013/6223
· the decision under review is set aside and, in substitution therefor, it is decided that the respondent is liable under s 14(1) of the SRC Act to pay compensation to the applicant, in accordance with that Act, in respect of “Adjustment Disorder with Depressed and Anxious Mood” suffered by him on 3 September 2012;
Application 2013/6224
· the decision under review is set aside and, in substitution therefor, it is decided that the respondent is liable to pay compensation to the applicant, pursuant to s 19 of the SRC Act, for incapacity for work for the period from 27 June 2013 to 31 July 2013.

I certify that the preceding 56 (fifty -six) paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop
............[sgd D Brodie]................................................
Administrative Assistant
Dated 17 July 2014

Date of hearing 1 July 2014

Applicant In person (unrepresented)

Counsel for the Respondent Ms G Walker

Solicitors for the Respondent Sparke Helmore

Division	General Administrative Division
File Numbers	2013/6223 2013/6224
Re	Leon Thompson
APPLICANT
And	Comcare
RESPONDENT

Tribunal	Deputy President S D Hotop
Date	17 July 2014
Place	Perth

Date of hearing	1 July 2014
Applicant	In person (unrepresented)
Counsel for the Respondent	Ms G Walker
Solicitors for the Respondent	Sparke Helmore