Line and Comcare
[2001] AATA 395
•10 May 2001
DECISION AND REASONS FOR DECISION [2001] AATA 395
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W1998/291
GENERAL ADMINISTRATIVE DIVISION )
Re TRACY LEAH LINE
Applicant
And COMCARE
Respondent
DECISION
Tribunal Associate Professor S D Hotop, Deputy President Dr Y S Haslam, Member
Date10 May 2001
PlacePerth
Decision 1. The Tribunal sets aside the decision under review and, in substitution therefor, decides that: (a) the respondent is liable, pursuant to s14(1) of the Safety, Rehabilitation and Compensation Act 1988 ("the Act"), to pay compensation to the applicant in respect of her injuries, namely chronic pain in both legs and somatoform disorder or anxiety/depressive disorder, resulting in her incapacity for work; and (b) the respondent is liable, pursuant to s19 of the Act, to pay to the applicant, in respect of the abovementioned injuries, the amounts of compensation as follows: (i) 100% of the applicant's "normal weekly earnings", as calculated under s8 of the Act, for each of the first 45 weeks immediately after 17 September 1995, in accordance with s19(2) of the Act; and (ii) for each week after the end of the abovementioned period of 45 weeks until 20 June 1997 during which the applicant was employed for 100% of her "normal weekly hours" during that week, 100% of her "normal weekly earnings", as calculated under s8 of the Act, in accordance with s19(3)(f) of the Act; and (iii) for each week after 20 June 1997, 75% of the applicant's "normal weekly earnings", as calculated under s8 of the Act, in accordance with s19(3)(a) of the Act. 2. The Tribunal orders, pursuant to s67(8) of the Act, that the respondent pay the costs of the applicant in these proceedings, such costs to be assessed in accordance with clause 6 of the Tribunal's General Practice Direction dated 18 May 1998.
...........(sgd S D Hotop)...........
Deputy President
CATCHWORDS
COMPENSATION – Commonwealth employees – applicant enlisted in Royal Australian Air Force ("RAAF") on 10 August 1992 – applicant sustained stress fracture of each shin in late 1992 in course of RAAF service – applicant discharged from RAAF on 17 September 1995 on ground that medically unfit for further service by reason of "bilateral fasciotomies" and "somatoform disorder" – respondent accepted liability to pay compensation to applicant in respect of "stress fracture left and right tibiae, left fibula and bilateral compartment syndrome" and "somatoform disorder" – responded accepted liability to pay lump sum compensation to applicant for permanent impairment and non-economic loss in respect of "lower legs condition" – respondent made determination assessing amount of compensation payable to applicant by way of weekly incapacity payments – whether applicant suffered an "injury" – whether applicant suffered a physical or mental ailment that was contributed to in a material degree by RAAF service – whether such ailment suffered by applicant as a result of failure by her to obtain a transfer or benefit in connection with RAAF service – whether such injury has resulted in applicant's incapacity for work – amount of compensation payable to applicant – whether applicant "able to earn in suitable employment"
Safety, Rehabilitation and Compensation Act 1988 ss 4(1), 4(9), 14(1), 19
Comcare v Chenhall (1996) 69 FCR 201
Comcare v Mooi (1996) 69 FCR 439
Pulitano v Telstra Corporation Ltd (1998) 50 ALD 1015
Telstra Corporation Ltd v Warner (1994) 20 AAR 259
Trewin v Comcare (1998) 84 FCR 171
REASONS FOR DECISION
10 May 2001 Associate Professor S D Hotop, Deputy President Dr Y S Haslam, Member
This is an application by Tracy Leah Line ("the applicant") for review of a reviewable decision, dated 9 July 1998, of a delegate of Comcare ("the respondent") affirming a determination, dated 18 June 1998, of another delegate of the respondent assessing the amount of compensation payable to the applicant by way of incapacity payments pursuant to s19 of the Safety, Rehabilitation and Compensation Act 1988 ("the Act").
At the hearing the applicant was represented by Mr H Christie of counsel and the respondent was represented by Mr J Lenczner of counsel. The Tribunal had before it the statement and the documents ("T documents" – numbered T1-T41 and ST42-ST49) lodged by the respondent pursuant to s37 of the Administrative Appeals Tribunal Act 1975 and various documentary exhibits tendered by the applicant (numbered A1-A15) and by the respondent (numbered R1-R11). Oral evidence was given by the applicant and by the following witnesses who were called by the applicant: Dr J Edelman, Dr P Skerritt, Mr B Beaton and Mr R Line. Oral evidence was also given by the following witnesses who were called by the respondent: Mr F Bell, Sergeant R Rundle, Lieutenant A Banner, Dr D Shub and Ms K Kellahan.
The Factual BackgroundThe background facts, about which there is no dispute between the parties and as found by the Tribunal on the basis of the T documents, are as follows.
The applicant, who was born on 27 August 1974, enlisted in the Royal Australian Air Force ("RAAF") on 10 August 1992 and was discharged from the RAAF on 17 September 1995 on the ground that she was medically unfit for further service by reason of her physical and mental impairments described as "bilateral fasciotomies" and "somatoform disorder".
Following lodgment by the applicant of a claim for compensation, the respondent accepted liability to pay compensation to the applicant pursuant to the Act in respect of injuries described as "stress fracture left and right tibiae, left fibula and bilateral compartment syndrome" and "somatoform disorder". The respondent subsequently also accepted liability to pay to the applicant lump sum compensation for permanent impairment and non-economic loss, pursuant to ss 24 and 27 of the Act, in respect of her "lower legs condition" on the basis that she had suffered a "whole person impairment" of 20% as a result of the compensable injury to her legs.
On 18 June 1998 a delegate of the respondent made a determination assessing the amount of compensation payable to the applicant by way of incapacity payments pursuant to s19 of the Act. The delegate determined that the total amount of such compensation payable to the applicant for the period from 18 September 1995 to 24 June 1998 was $16,977.52 (gross) and that thereafter the amount of such compensation payable to the applicant per week was $19.80 (gross).
On 9 July 1998 another delegate of the respondent made a decision affirming the abovementioned delegate's determination of 18 June 1998.
On 28 July 1998 the applicant lodged with the Tribunal an application for review of the delegate's decision of 9 July 1998.
The Applicant's EvidenceA signed "witness statement" of the applicant, dated 14 June 1999, was tendered in evidence (Exhibit A1). The applicant confirmed that she had provided that statement and that, to the best of her knowledge and recollection, its contents are correct. The contents of that statement are as follows:
"1. I was enlisted in the RAAF on 10 August 1992. Prior to enlistment I had not suffered from any headaches or stomach aches of any significance, any problems in relation to my legs or any psychological or any psychiatric condition as far as I am aware.
2. It was approximately seven weeks into recruit training with the Air Force that I began to experience problems with my legs. Initially I felt a tightness in the calves of my legs. As far as I can recall I saw a medical officer in the Air Force about this problem about eight weeks after the recruit training commenced. The medical officer told me to take Mersyndol and I think he also gave me a prescription of Panadeine Forte.
3. As far as I can recall, although I did have the prescription for Panadeine Forte filled the pain killers that I took were largely Panadol or, if my legs were feeling bad, Panadeine. I was taking these pain killers at least twice a day throughout recruit training.
4. I didn't receive any restrictions on my duties in recruit training until about the last week or two of the training. These were temporary restrictions as far as I can recall and the restrictions were no marching, no running and no prolonged standing.
5. Because of these restrictions when the rest of the recruits were marching I would have to walk with them but not march and because of these restrictions I didn't have to do any of the running that was involved in the physical training.
6. As well as having problems with my legs in recruit training I also began to get massive headaches. These started to occur approximately six weeks after recruit training commenced. I had never suffered from headaches prior to recruit training and I presume the headaches were partly to do with the pressure of moving from civilian life to military life. I also thought that the headaches may be because of the fact that in recruit training I was only getting about six hours sleep a night and I was always tired.
7. The headaches were virtually daily but because I was already taking pain killers for my legs I didn't take any pain killers for my head.
8. I also suffered some stomach problems in recruit training. I had stomach cramps which I think were actually caused by doing sit ups. I became somewhat obsessed about the sit ups and I found that I was even doing sit ups in my sleep which made my stomach feel even worse. I also had a stomach ache for about a two week period when I was having problems with the room mate that I had during recruit training. Again, as with the headaches, I had never had any stomach problems before recruit training.
9. I also had nightmares in recruit camp, however I have always suffered from nightmares. The nightmares I had in recruit camp were basically along the lines of being worried about doing the wrong thing and making everyone have to do extra duties because of that. I also had nightmares about being spat upon for failing to make the grade in recruit training. In Canberra I also had recurring nightmares about being chased, which nightmares continued until my discharge from the Air Force.
10. After the recruit course was completed I was posted to Wagga where I spent approximately 15 weeks undergoing trade training to become a clerk. I continued on physical restrictions during this time, which restrictions were no parades, no prolonged standing and no running.
11. During this time I was still taking pain killers for my legs on approximately the same level as during recruit training, however I did not have any problems with my stomach and I didn't suffer from headaches.
12. After the trade training in Wagga I was posted to Canberra and it was there that my health became worse.
13. Once again the condition in relation to my legs remained the same and I continued on restricted duties in terms of no marching, no parades, no prolonged standing and no running. In fact as far as I can recall not very long after getting to Canberra the restrictions in relation to my legs were made permanent.
14. I recall in Canberra that in addition to Panadeine I was also taking Panadeine Forte but I am uncertain as to when I started taking this medication. After some time I found that the Panadeine Forte were not working effectively so what I did was I would stop taking tablets every now and then for a few days then I would take tablets for a day and then I would try and miss a day. On the days that I took tablets I would sometimes have to take two every six hours but generally I would just take two once or twice a day. The Mersyndol tablets seemed to be the best medication for my legs but I did find that they made me feel very dozy.
15. After about eight months into my posting at Canberra I began to experience almost permanent headaches. I also was getting red vision, dizziness and black outs with the headaches and I could not focus on what I was doing. The headaches just got worse and worse as time went on. I also started to get stomach aches but I think these came later than the headaches and I think the stomach aches were caused by the clashes that I had with one of the corporals who used to give me quite a hard time. In particular he used to single me out because he didn't seem to think that I was a team player because of the physical restrictions that I had upon me because of my legs.
16. About the same time that the headaches commenced I also started to suffer from mood swings which were really dramatic mood swings. I was either really happy or really angry. I did see psychologists and I think a psychiatrist while I was in the Air Force but I didn't really understand what was the cause of my problems. I remember that not long before I was discharged I was prescribed Epilim which I took for approximately one month. The Epilim tablets seemed to suppress only the exterior of my moods in that I would still feel that I was in a foul temper but I just didn't express it like I used to prior to taking the tablets. The reason why I stopped taking the tablets was because I could not handle the flattening effect that the tablets had upon me.
17. I also continued with stomach problems while I was in Canberra. I think the stomach problems commenced approximately 15 months into the Canberra posting. At one stage the stomach aches became so bad that I would seize up with them and eventually I underwent a laparoscopy in Canberra but the surgeon could find nothing wrong with my stomach.
18. I took no other medication at this time other than the medication referred to above.
19. After I was discharged from the Air Force on 17 September 1995 I continued to suffer from stomach aches for about six months. I still get a stomach ache if I have a really big problem such as a big money problem. However this only occurs about once every six months.
20. In relation to the headaches I continued to suffer from these for about six to eight months after the discharge. Since then I suffer from a headache sometimes when my legs really hurt or if I stay up too late studying. This would happen about once every couple of months. I do not take anything other than Panadol for these headaches.
21. I am still subject to mood swings. However these are not nearly as severe as they were in the Air Force. I am seeing a psychologist, Mr Bruce Beaton, now because of the mood swings because I feel that I am not coping well with people. I feel scared sometimes that I can't see myself from other people's perspective and I am worried that people will not tell me when for example I do something wrong. I therefore feel that I have to stay on guard because of that.
22. Mr Beaton is counselling me for this and I do feel better after my sessions with him.
23. Immediately following my discharge from the Air Force I was actively involved in seeking employment.
24. I would check the papers each day in relation to clerical and secretarial work and I sent approximately five or six letters per week applying for positions. Because there were so many jobs advertised in the paper I didn't think that there was any need to look elsewhere for employment. I was however registered with the Commonwealth Employment Service.
25. I continued to actively seek employment as a clerk, but without success until I obtained such employment in April 1996. I also went looking for work as a shop assistant or waitress or similar, going from shop to shop or business to business in Midland, Fremantle, Rockingham and Perth. On that basis I would obtain a number of interviews on the spot. Typically during such interviews I would be asked what my previous experience was. I would then be asked why I had left my previous employment in the military and I would say that I had been discharged because of my leg problems. I avoided mentioning my somatoform disorder unless I was asked a direct question, as I was aware of the effect that that information had on potential employers from the times I had to mention it. Usually I would also be asked whether I had a current or previous compensation claim. Generally I was told that my employment application was unsuccessful. Often I was given no reason, sometimes I was told that the employer believed that I would not be able to cope with the standing that would be required.
26. However, approximately four weeks before Christmas 1995 I obtained employment in a card shop. For the first two weeks of this employment I was working about three times a week doing a maximum of four hours each time. Then in the Christmas rush which was two weeks before Christmas I was called in approximately four to five times per week and I would work three to four hours. After Christmas I was informed that there was no more work available for me. When I applied for the work at the card shop I had told the manager about the problems that I had with my legs and because of this they arranged for a stool for me to sit on. Despite that I can recall that I still had problems with my legs aching by the end of each day when I was working.
27. I also worked one night at a community Centre which would have been in early 1996. I was employed to serve drinks and I was supposed to be working for approximately three to four hours however I had to go home after one hour because my legs were hurting too much for me to continue.
28. I also obtained a cleaning job I think in early 1996 but I was only there for two days because I couldn't cope with the pain in my legs. Furthermore I had problems with my legs because of the weight of the backpack vacuum cleaner that I was required to carry around and because of the speed that I was required to carry it around at.
29. The employment listed above is the only employment that I obtained between my discharge from the Air Force to 9 April 1996 when I finally obtained employment as a clerk.
30. Before I obtained the employment as a clerk which was with Edith Cowan University I had had at least three or four interviews for either clerical or secretarial work but had been unsuccessful in these interviews. At these interviews I was again asked about my previous work history and the reason for my discharge. The standard clerical application form asked whether I had a previous or current compensation claim. I believe that my affirmative answer to this question meant that I was not considered for many positions.
31. My job at the University ended in June 1997 and I was told that this was due to restructuring at the University. However I had previously been told that my job was safe in the restructuring and that a more recent employee would lose her position. This changed after I had attended a medical check up about 12 months after I started work and I disclosed my somatoform disorder when previously my employer was only aware of my leg problems.
32. By that time I was in fact pregnant with my son Jack but despite this I still sent out approximately 200 letters seeking employment in the last eight weeks of my employment with the University. I sent these letters in response again to newspaper advertisements for clerical work and secretarial work.
33. After I had left the University I registered with three employment agencies and I sent out approximately another 200 letters seeking employment up until the time I was approximately four months pregnant. As usual, there was often a considerable delay between making an application and getting an interview. I went to approximately 20 interviews during this time. I believe that my failure to get work was partly because I was required to disclose my leg problems and compensation claim with the Respondent. However as my pregnancy progressed I believe that it would have been one of the major reasons why I did not obtain employment.
34. Jack was born on 8 January 1998. After my son was born I did not seek employment as I was looking after him. However, I have been studying part time since January 1998 when Jack was a few weeks old. I am studying a Bachelor of Education as I would like to be a teacher. I am one unit short of completion of the first year of my degree and as I am doing the degree part time I have about three years left to complete after the end of this year.
35. I have recently been considering whether to again start applying for clerical or secretarial work as Jack is now 16 months old. However I am conscious of the difficulties I have had in obtaining employment since my discharge from the Air Force, further my husband and I have discussed this and at the present time I intend to concentrate on my studying and looking after Jack and it may then be possible for me to complete my studies earlier than the anticipated three and a half years.
36. I believe that since my discharge neither the Air Force nor any other Commonwealth Department are willing to employ me because of my conditions. However I remain ready and willing to immediately return to employment with any Commonwealth Department in any position that I am reasonably capable of performing and which is suitable for me."
In her oral evidence-in-chief, the applicant elaborated on the contents of her written witness statement regarding her period of service in the RAAF. She told the Tribunal that, after completion of her recruit training in Edinburgh and her trade training in Wagga, she was posted to Canberra in early 1993 where she was engaged in clerical work and continued on restricted duties (that is, no marching, no running, no prolonged standing) because of the condition of her legs. Nevertheless, she said, she continued to experience cramping pain symptoms in her legs after walking up a hill and climbing up stairs each morning to get to work as well as during periods of sitting and standing while at work. She said that eventually it was decided that she should have an operation on her legs and bilateral fasciotomies were performed. That operation, she said, did not cure the problem in her legs because, after a recovery period of 6-12 months, she found that the condition of her legs was "pretty much the same" as before the operation – except that she now had two big scars on her legs.
The applicant told the Tribunal that during her period of service in Canberra she also started to develop stomach pains and later, about 6 months prior to her discharge, began to experience headaches which became increasingly severe to the point of causing "black outs" and "red vision".
As regards her employment duties in Canberra, that applicant said that her first job was as a "travel clerk", making travel arrangement for the officers etc, and she encountered no problems in that position. She was later transferred to the position of "leave clerk" which she occupied for a short period before being transferred to "Accounts". She said that when she commenced working in "Accounts" there were 3 staff members but that the other 2 staff members were then transferred elsewhere leaving her to manage the workload on her own. She said that her already heavy workload was compounded because of mistakes made by others, eg travel clerks wrongly coding forms. Her workload was such, she said, that she worked extra hours nearly every night, sometimes until 7.00-8.00 pm. She added that her husband, when he came to pick her up from work, would sometimes help her with her work. She said she continued to work under these conditions and eventually problems "started flaring up", namely, bad headaches, being unable to focus on the figures on a page, and crying at her desk. She said that she asked her immediate superiors for help but received none. She said she also came into contact with the corporal in charge of the travel clerks as a result of her complaints about coding errors made by those clerks. She told the Tribunal that he did not give her any support but instead told her that she was not a "team player" and suggested that she was not good at her job. This, she added, upset her whereupon he would behave outwardly as though he were concerned and sympathetic towards her in front of the other staff.
The applicant told the Tribunal that she approached the Warrant Officer and requested a transfer from "Accounts" but, when he refused to recommend a transfer, she went straight to the Commanding Officer in tears and he then referred her to a psychologist who told her that she was unsuitable for military service and recommended that she be discharged. She added that she was subsequently assessed by a medical officer and was discharged shortly thereafter.
The applicant also told the Tribunal about her employment history since being discharged from the RAAF in September 1995 (see paragraphs 23-33 of her witness statement set out in paragraph 9 above).
The applicant was also questioned about her symptoms since being discharged from the RAAF. She said that the headaches "just dwindled right off" and she does not now experience them, apart from getting "a little bit of a tension headache" when she is worried about money or, generally, as a result of lack of sleep. As regards the stomach pains, she said that they persisted for a time after her discharge from the RAAF and she sought medical treatment for them but that she does not experience them now, apart from the occasional stomach pain brought on by nervous apprehension. As regards her legs, she reiterated that their condition has not changed since she first complained of leg pain during her service, despite the operation (namely, bilateral facsiotomies in July 1993). She added that she has altered her life so as not to trigger the pain and, on medical advice, she does stretching exercises each day and she also walks regularly up to "moderate distances". In short, she engages in "gentle exercise on a regular basis" in order to minimise the painful effects of her leg condition.
The applicant told the Tribunal that she is now "halfway into the second year" of her part-time Bachelor of Education course that she commenced in early 1998 shortly after her first child was born on 8 January 1998. She said that she now has two children, a daughter having been born on 8 May 2000.
Finally, the applicant confirmed that she is presently willing, and since her discharge from the RAAF has always been willing, to be employed by the Commonwealth. A letter dated 9 December 1998 from the Legal Aid solicitor, who represented the applicant in these proceedings, to the respondent's solicitors was tendered in evidence (Exhibit A3). In that letter the applicant's solicitor confirmed that "if the Commonwealth were to offer [the applicant] suitable employment she would be more than pleased to take up this offer".
In cross-examination the applicant confirmed that she developed pain in both legs (the left leg being worse than the right leg) in the calf muscle and shin bone areas from the time she started marching during her recruit training in the RAAF and that, despite operative treatment in 1993, the same pain symptoms have persisted. She said that the best way of providing relief from the pain is for her to engage in "moderate exercise continually". She said that she goes walking nearly every day, including walking to the shops which takes 20-30 minutes, but that she generally avoids activities such as night clubbing, roller skating or roller blading which would stress her legs. As regards ongoing medical treatment for her leg condition, the applicant said that she does not now seek medical treatment for her legs but that she performs at home a physiotherapy programme, involving the stretching of the calf muscles, that was prepared for her by a hospital physiotherapy unit about 6 months previously and she regularly takes medication in the form of non-prescription drugs such as Panadeine or Kendeine. She added that she has in the past taken prescription drugs such as Panadeine Forte or Mersyndol but she has not done so in recent times.
As regards her emotional state, the applicant acknowledged that she had always had "slight mood swings" before joining the RAAF. She explained that, prior to joining the RAAF, she was "happy" for 90% of the time, but that she occasionally displayed a "quick temper" which only lasted a short time, whereas during her RAAF service her mood swings were much greater to the extent that she was "grumpy" for 60% of the time and "happy" for 40% of the time. She added that since leaving the RAAF she was now "back to 90% happy and 10% grumpy". She also said that, prior to joining the RAAF, she did not experience headaches, even during her displays of "quick temper" or feelings of grumpiness.
Additional Lay Evidence
Richard LineRichard Line was called as a witness by the applicant. He confirmed that he is the husband of the applicant and gave his occupation as an apprentice mechanical fitter. He also confirmed that he had made a written statement dated 14 August 2000 and that its contents were true to the best of his recollection. The contents of that statement, which was tendered in evidence (Exhibit A15), are as follows:
"1. I am the husband of the Applicant Tracy Line.
2.I first met Tracy in 1991 when we were both at TAFE doing computing studies. It was about a year before Tracy went into the Airforce.
3.During this period we went out together and saw a lot of each other. Tracy was very fit and active. I recall that she did a lot of horse riding at the time and she used to cycle to and from TAFE which was about 4 or 5 kilometres and she was learning how to swim. She was in good health. I don't recall any illnesses or injuries or her complaining of any aches or pains. I recall her being very proud of the condition of her attractive legs. She was a happy cheerful confident and outgoing person with a very attractive personality.
4.Tracy decided to enlist into the Airforce. This involved her being transferred to Wagga Wagga for her basic training. I therefore didn't see her for several months, although we kept in contact by telephone and letters. I learned that she had developed significant problems in her legs towards the end of that training and that she was seeing Doctors and having treatment. My impression, at this time and apart from the problems with her legs, was that she was enjoying her new career and that she had made some good friends.
5.She came back to Perth on leave in mid 1993 and we resumed our relationship and decided that we wanted to be together permanently. I recall that during this period she had very sore legs, which prevented her walking normal distances. For instance when we wandered through Fremantle together she would have to stop and rest her legs and this was a completely new problem which had not existed prior to her enlistment. Apart from the pain and frustration this was causing her, I believe that she was very happy at this time. She was happy with our relationship and with her career, which she regarded as permanent and we made arrangements that I would come and join her in Canberra. It took a couple of months for me to organise a transfer and it was about 6 weeks or 2 months later that I arrived in Canberra in about August 1993.
6.By the time I arrived in Canberra, Tracy had had her operation to relieve the compartment syndrome. When I came to Canberra we had a period of living in private accommodation, we were then officially recognised as a de facto couple and permitted to have airforce accommodation in the suburb of Cook.
7.By this time Tracy was primarily in a clerical position. She worked long hours as part of her employment and she was not able to take part in the airforce activities, which were organised out of the office, because of the condition of her legs. She missed out on the teambuilding and morale building activities like skydiving and abseiling. She tended to be left behind on her own to complete the unit's basic work schedules. I recall going in to her office on a number of occasions to join her at 7 or 8 p.m. at night in order to help her finish the work, otherwise she would have been home even later. We discussed how she was being treated. Both of us felt it was wrong, but when she discussed it with her superiors she reported back to me that she was simply told it is good to know your husband will help you. This isolation from the group and the way she was treated and taken for granted as well as the continuing pain she had in her legs was clearly affecting Tracy and she was no longer the cheerful, happy go lucky person that I had known previously.
8.I recall one of her superiors, Tich Rundle, seemed to go out of his way to make Tracy's life miserable. I don't believe he was her direct superior, but he was higher ranking and more experienced. However when she went to him for assistance or with queries, he would give her certain advice and when she followed it and then found out it was wrong, he would deny that he had originated it and would make her look foolish. I recall that I met him one night and discussed it with him. He claimed to me that I was speaking to the wrong guy and that it wasn't him. A day or so later, one of Tracy's female friends from her unit told me that he had boasted to her that he had fooled me and that I was a loser.
9.Over a period of time Tracy came to cope less and less well emotionally. She would come home and break down and bawl her eyes out, she would complain about continuously being put down by her superiors and other members of the unit and the ridiculous amounts of work she was expected to do so that there was a never ending backlog. She started to suffer from severe headaches and she was taking significant amounts of painkillers for these headaches.
10.After the operation she had to have very extensive physio to help her regain the proper use of her legs. She was initially told that after a few months they would return to normal, but they still have not done so. She was given exercises to do, primarily stretching exercises, a gym exercise program and swimming plus extensive physio. However they have never come right and she has to rigorously and regularly follow the stretching and exercising regime or her legs rapidly deteriorate and then she has trouble even walking a few hundred metres to the shop. I still regularly massage her legs and, if I don't do so or if she doesn't take regular small amounts of activity, the condition rapidly worsens. Whereas Tracy could, before her leg problems appeared, literally dance all night at a rage party, now, if she dances for more than 2 or 3 songs, she will have to sit down and she will be in significantly worse pain the following day.
11.Even when we go shopping together at the supermarket, at the end she will be using the trolley to hold herself up.
12.Cold weather makes Tracy's legs significantly worse. They ache just from the cold and will cramp up. This was particularly bad in Canberra in the winter months.
13.As time went on in Canberra, Tracy started to develop other illnesses or physical symptoms. She had cramps in her shoulders and bad continuing stomach aches. I recall she was investigated for appendicitis. I now understand that these symptoms were probably part of her somatoform disorder. These symptoms have not repeated themselves at all since she left the airforce. She still gets headaches, but not nearly so frequently or with the same severity as she had in Canberra. Whilst in Canberra, she was taking panadeine forte and mersyndol up to 2 or 3 times a day. So far as I am aware the last mersyndol she took was within a few months of leaving the airforce.
14.Tracy has also changed from being a confident outgoing person who could talk to and be friends with anyone, to being very unsure of herself. She continues to find it very difficult to deal with large groups or people she doesn't know well. Even amongst her friends she is constantly seeking reassurance that she hasn't said the wrong thing or upset someone unknowingly. She will keep apologising in case she has said the wrong thing.
15.When Tracy left the airforce she arranged to be returned to Perth before formal discharge. I followed a couple of months later in December, when I had completed my studies that I had been undertaking. When Tracy first came back to Perth she stayed with a girlfriend in Guildford and she later moved to Kwinana where we rented my parents' house. Tracy had been looking for work without success before I arrived back in Perth; we used to discuss it when we spoke by telephone. We both continued looking for work for quite some time before we obtained permanent positions. I got a job as an animal technician at UWA first and sometime later Tracy eventually got her position at Edith Cowan University. In the meantime she had obtained a position in a card shop for a couple of weeks over Christmas. I remember Tracy telling me that she had asked for a stool because of the pain she was getting and that she had eventually been given a stool after she had threatened to sit on the floor. I visited the shop on occasions as it was in the shopping centre near where we were living at the time and I saw her there with the stool.
16.Tracy was very dedicated in looking for work; she made literally 100s of applications for different jobs. I can remember constantly posting the letters. She didn't like been (sic) on welfare. Similarly when she lost her job at Edith Cowan University she again made 100s of applications. However she didn't get a job and she was pregnant with Jack so that made it even more difficult."
In his oral evidence Mr Line elaborated on, and was questioned in relation to, the contents of his written statement. The Tribunal, however, does not think it necessary to record details of Mr Line's oral evidence here.
Richard Rundle
Richard Rundle, who was called as a witness by the respondent, told the Tribunal that he had served in the Australian Army for about 8½ years and, after a break of about 1½ years, he joined the RAAF and has served there for the past 10 years. He presently holds the rank of Sergeant and is based in Townsville.
Sergeant Rundle was referred to various comments made by the applicant and by Mr Line, in their evidence to the Tribunal, regarding his working relationship with the applicant during her service in the RAAF. He rejected any suggestion that he had ever behaved inappropriately towards the applicant in the workplace and maintained that he treated her no differently from others working in similar positions. As regards Mr Line's written statement (Exhibit A15), he was referred specifically to paragraph 8 of that statement and vehemently rejected the references to himself in that paragraph. He also said that he found the applicant to be moody and that on "good days" he got on well with her but on "bad days" he "kept a wide berth". He also described her job of accounts clerk as "definitely one of the less intensive" jobs in their office in terms of workload.
Anthony BannerAnthony Banner, who was called as a witness by the respondent, holds the rank of Lieutenant in the RAAF and is presently based at Amberley in Queensland. He told the Tribunal that in 1994-95 he was in charge of the accounts section in the RAAF in Canberra and, as such, he was the applicant's direct supervisor for a period of about 6 months until March 1995 when he left that section. He said that the applicant's job in the accounts section was a "one person job" and he had no recollection of her working until late at night for long periods of time. He added, however, that it was a busy office and that the applicant probably worked after 5.00 pm about one day per week for about one hour at most. On the other hand, he said that the applicant appeared to be having problems at work and was very moody, sometimes reacting to comments from him about being required to meet a deadline or failing to meet a deadline, by running off to the toilets and spending up to an hour there before returning to her workstation with "red eyes". He said that he tried to talk to her about any problems she might be having but she was not forthcoming. Finally, he told the Tribunal that the RAAF has a policy of "zero tolerance" towards sexism in the workplace and that he did not recall seeing or hearing anything of that nature occurring, either in relation to the applicant or generally.
Karen KellahanKaren Kellahan of Kellahan Saunders, Recruitment Consultants, was called as a witness by the respondent. Ms Kellahan confirmed that, at the request of the respondent's solicitors, she had prepared a report, dated 28 August 2000, regarding the general availability to the applicant of employment in Perth in specified capacities. That report, which was tendered in evidence (Exhibit R10), was based on information contained in a job application letter dated 12 March 1997 written by the applicant and an accompanying resumé prepared by her (Exhibits R3 and R9). Relevant extracts from that report are as follows:
"…
3.0 REPORT/SUMMARY
This report has been compiled … to determine the availability for a female with similar skills and background as listed in the enclosed covering letter and Curriculum Vitae during the dates from September 1995 to 1998 and 1998 to current. Also the indication of salary during these years.
This report is compiled without interviewing the person concerned and is based on written documentation only (ie CV).
The Professional Opinion of Kellahan Saunders is therefore based on a generalisation of the workforce, comparing the candidate's skill levels as per the candidate's CV, and the assumption that she is in a reasonably fit and healthy condition with minimal physical restrictions.
We are under the impression that the candidate does not have any business qualifications relating to accounting/bookkeeping. We acknowledge that some TAFE computer studies have been undertaken however, without any formal tertiary qualifications we can only categorise this candidate as an accounts/administration clerk.
All earning figures are based on Australian dollars.
4.0 POINTS ADDRESSED
4.1 Workforce Opportunities
In a general population, a fit and healthy clerical/administrator would be able to seek employment opportunities in the following areas:· Invoicing clerk
· Accounts clerk
· Customer service administrator
· Data entry operator
· Receptionist
· Person-Friday
· Administration Assistant
Qualifications are generally not required for these positions however previous employment skills in the associated areas would be a prerequisite. The candidate on paper would appear to possess these skills.
It is of interest to note that a candidate must also possess a positive attitude in securing employment opportunities.
This candidate would not be limited to any particular industry group however given that she has worked for large organisations with strict protocols and policies, it would be envisaged that she would find it difficult to make the transition to small business.
Again, this is based on written documentation and could only be clarified through a formal one-on-one interview.
4.2 Earning capabilities
In a permanent full time position, such as those listed in point 4.1, the salaries based on a 37.5-hour week would have been:
1995-1996 $20,000 - $23,0001997 $23,000 - $25,000
1998 $23,000 - $25,000
1999 $25,000 - $29,000
2000 $29,000 - $32,000
· These figures do not include mandatory superannuation
· These years are based on calendar year as opposed to financial year.
· All market salaries and information provided is based on the West Australian/Perth Metro market place.
…
6.0 CONCLUSION
As we have no work history beyond April 1996 on the candidate's documents, we assume the candidate has not been employed from this period.
In light of this and the changes to technology and business procedures since 1996, we believe this candidate could not gain the market salaries mentioned without adequate training in the latest technologies and business applications.
We therefore consider a salary between $23,000 - $25,000 would be commensurate with this candidate's skills and abilities. There would probably be an expectation of between 6 – 12 months before any further market salaries would come into play.
In the current employment environment, and certainly over the last 12 months, there has been a shortage of accounting personnel. There have been more positions available than there have been suitably qualified candidates.
Based on our research and the information supplied to us, if the candidate were given the necessary skills and had a positive outlook, she should have been reasonably successful in securing employment in at least one of the listed areas (point 4.1)."
In her oral evidence Ms Kellahan confirmed that, even if it be assumed that the applicant is physically restricted from walking substantial distances and standing for lengthy periods of time, the opinion regarding the applicant's employment opportunities expressed in the abovementioned report would be the same.
The Medical Evidence – physical
A report of Dr M Stebnyckyj, Wagga Medical Imaging, dated 5 November 1992, regarding a bone scan of the applicant's legs performed on 4 November 1992 was tendered in evidence (Exhibit A7). That report states:
"Images of the lower legs reveals increased uptake along the cortical margin of the postero-medial aspect of the mid shaft of the left and right tibiae. There is focally increased uptake within the shaft of the distal left fibula.
Conclusion – Grade I-II/IV stress fracture involving left and right tibiae.
Grade IV/IV stress fracture involving distal left fibula."
A report of Mr A Van Der Rijt, Orthopaedic Surgeon, dated 5 November 1992, to the Chief Medical Officer, RAAF Base, Forest Hill, NSW regarding the applicant was tendered in evidence (Exhibit A6). That report states:
"Thank you for asking me to see this young woman with a complaint of pain in both legs. She is enlisted in the RAAF for the past twelve weeks and approximately five weeks ago, developed bilateral leg pain. She did develop 'shin splints' which relate to her marching and stomping her feet. She however, has a separate area of pain located over the lateral gastrocnemuis muscle belly. This occurs whenever she runs. She can run a moderate distance and develops pain which gradually increases as she continues to run. When she ceases running this pain will persist for sometimes several hours and on one occasion persisted for two days. She develops a similar pain when she is marching and 'flicks her leg'.
She has a past history of a fracture of the left fibula which recovered normal function.
She is slightly built and has undeformed lower limbs. She does not have muscle tenderness. She has normal tone and texture in muscle. She has a normal range of movement of all joints in the lower limbs. She has normal anterior compartment muscles without tenderness. She has tenderness over the distal third of both tibia.
Her symptoms are not entirely characteristic of anterior compartment syndrome. In view of the localised tenderness over the tibiae a bone scan would be worthwhile. If this is normal then anterior compartment pressure studies should be undertaken. I suspect that they would be normal and that her pain is purely secondary to her muscular exertion without muscle ischaemia. I will review her with the result of scans.
This lady's bone scan confirms a presence of grade 2 stress fractures in both tibiae and grade 4 stress fracture in the left fibula. This is in keeping with her symptoms.
She is very lightly built and the suitability of people of this stature undergoing full military training remains questionable. She should certainly modify her training requirements at present so that impact running and similar activity are restricted. She could continue with swimming, bike riding and gym exercise. Once her symptoms settle, then she should gradually introduce running and normal training requirements but should be allowed a period of several months to achieve this."
Two reports by Mr G Stubbs, Orthopaedic Surgeon, regarding the applicant (whose maiden name was "Bolstad") were tendered in evidence. The first report, dated 16 June 1993 (Exhibit A10), states:
"Acw Bolstad returned for review on 15 June 1993. She is a relatively new recruit who developed shin pain on basic training and was diagnosed as suffering from stress fractures whilst at Wagga Wagga. This was confirmed by bone scans. Since coming to Canberra and resting her legs for several months she has continued to have pain and Charles Howse saw her and did some pressure studies which are definitely elevated. I saw her first about two weeks ago and she had features of both stress fractures and compartment syndrome so I thought a repeat bone scan might clear up the situation. This has duly been done. It shows that the stress reactions in bone previously very obvious have now almost disappeared so the stress fracture problem seems to be much the less important of the two now.
I am therefore arranging her admission to Calvary Private Hospital for fascial compartment decompression which is the cause of her ongoing problems."
Mr Stubbs' second report, dated 22 July 1993 (Exhibit A11), states:
"ACW Bolstad has been under treatment for shin splints since her recruit training at Wagga. She has had ongoing anterior pain and is known to have elevated anterior compartment pressure. She has previously been bone scanned, suggesting stress fractures, but on repeat bone scan there was much less reaction to the bone, suggesting that these have healed.
Right and left shin fasciotomies were preformed at Calvary Private Hospital on the 21.7.93, under general anaesthesia administered by Dr Booth and with the assistance of Dr J Kellett. Using tourniquets, mid line anterior shin incisions were made. Pre-operative fascial compartment testing was then performed, fasciotomies were done with the four transverse and one longitudinal connecting incision to the anterior and posterior compartments and then the dissection continued down to strip deep posterior compartment. The tibialis posterior compartment was tested through the interosseous membrane. The wounds were closed over Redivac drains with subcuticular nylon sutures to the skin.
The fascial compartments pressures recorded are as follows:
Right anterior – 10 (4)
Right superficial posterior – 9 (7)
Deep posterior – 8 (7)
Left anterior – (16) – (9)
Left deep posterior 10 – (8)
Left superficial posterior – not tested
Left tibialis posterior – not tested.
In addition there is a plantar wart on the lateral side of the right foot. This was diathermied as a subsidiary procedure. A specimen of this has been sent for histopathology."
A report of Dr C Howse, sports physician, dated 17 March 1995, to Dr K Reynolds, Joint Services Health Centre, Department of Defence, regarding the applicant, was tendered in evidence (Exhibit A9). That report states:
"Thank you for asking me to see Tracey (sic) who I originally saw in 1993 for bilateral anterior and posterior compartment syndromes. As you know, this was followed up with bilateral fasciectomies (sic) performed by Geoff Stubbs. Tracey (sic) is still experiencing some pain in the posterior calves of both legs, more centrally rather than medially, and I have re-measured her compartment pressures.
The pressures were measured on 7 March 1995 and they showed normal resting pressures in the anterior and deep posterior compartments of both legs and, following exercises, the pressures still remained normal, all being under 10mm of mercury. One aspect during testing was the scar tissue noted on the medial part of the tibia near the incision scar which was difficult to penetrate with the needle and was associated with pain.
There is no definite cause for this pain to be continuing, however, scarring following surgery can produce some non-specific pain and also the outcome of decompression fasciotomies is not 100% and, therefore, she may still be experiencing some pain from the deep posterior compartment which is clinically not measured as an increased pressure. I feel the symptoms are genuine and have suggested that she see you to have an intense program of calf stretching and massage over the calf and certainly over the site of the scar tissue.
…".
Dr J Edelman, Consultant Rheumatologist, was called as a witness by the applicant. Dr Edelman confirmed that he had provided 3 medical reports concerning the applicant to the applicant's solicitors and that those reports represented his views in this matter. Dr Edelman's first report, dated 1 April 1996 (T9), states as follows:
"…
The history is well outlined but I do note that she entered as clerical staff and went through basic training. She then had pain in her lower limbs and eventually had a diagnosis of stress fractures and compartmental syndrome made. She has had fasciotomies, rest and physio. She remained in the Air Force in clerical duties and was discharged in September, 1995. During this time she was under stress obviously and ended up with a depressive illness and as you point out a somatoform disorder. She was consequently, as I mentioned, discharged from the Air Force.
She is still under some stress and is easily agitated. Unfortunately her legs still produce the same symptomatology. She can't stand for longer than two hours and she finds it difficult to go up and down stairs.
Examination interestingly enough did of course confirm her slight build but she also tended to flat feet. There was little else to find.
There is no doubt that this young lady was suffering from stress fractures and a compartmental syndrome. She is still suffering symptoms to this day which I guess is probably related to compartmental syndrome and being added to by her mechanical feet problems. In my mind there is no doubt that the RAAF has caused this problem and therefore obviously contributed to and aggravated the condition to quite a material degree. The physical activity that she underwent with her build and her mechanical feet problems lead to the problems that she has to this day.
If we accept it is only her lower limbs causing the problem then there seems to be no reason why she could not work as a clerk in the RAAF. Obviously she would not be able to go running up and down and doing the fitness, but working as a clerk she should surely be able to do this. She is already looking for work outside of the RAAF as a clerk and clerical duties, so obviously she is fit for this.
As to general fitness, this young lady really needs an occupation where she needs to sit for the majority of her time."
A brief report by Dr Edelman, dated 24 March 1997 (Exhibit A4), states:
"I have actually written to the Department of Defence. I have actually given her an impairment of 20% to her lower limbs and I have said that it is permanent. Hopefully they can go ahead and settle on these grounds."
[The Tribunal notes that a delegate of the respondent subsequently made a determination, dated 31 October 1997, that lump sum compensation was payable to the applicant, pursuant to ss 24 and 27 of the Act, in respect of a permanent impairment of her legs on the basis of a "whole person impairment" of 20%.]
Dr Edelman's most recent report, dated 31 January 2000 (Exhibit A5), states:
"This lady was reviewed at your request today. I remember seeing her and I have reviewed my reports and read through quite a number of reports. I must say from the outset that I stand by my opinion which was given to you on the 1st April 1996.
Tracy still has the same symptomatology of calf tightness and shin pain. It is not usually there all of the time but over the last few months it has been. If she stands for any period of time the discomfort is there.
As you know she worked as a secretary at Edith Cowan and worked there for a year without too much in the way of a problem as long as she was not going up and down stairs. However, she was made redundant due to restructuring.
Examination was no different this time than before.
I have actually read both the medical practitioners' letters. Let me go to Dr Shub's first. I do not actually understand how he can state that her symptoms were attributable to her psychological state. He would have to be saying that she is either psychosomatic or has conversion hysteria. I guess he must be far better at judging her personality than me because I cannot see her as having a disturbed personality functioning. She appeared to be coping reasonably well. He then states that her clinical disorder is unrelated to her RAAF service. However, during the RAAF service she had leg pain, shown to have stress fractures and then had compartmental syndromes which were decompressed. That must be rather fascinating to work out how that has occurred due to a pre-existing psychological condition. It seems rather clear to me that her existing psychological problem arose in the Air Force because of the leg problems. This would make it compensable in any case.
He then states that a contribution of stress linked with her involvement with the RAAF would have ceased when she was no longer associated with that organisation.
However, it is my understanding that if stress arises, e.g. due to the death of a family member then the stress remains, even though the family member is buried and mourning has taken place. I cannot understand how a statement like that can be made. It would suggest that once a pay out has occurred for whiplashes everybody gets better. This has been proven to not be the case.
I have also read Mr Bell's findings. It is amazing that he questions the diagnosis of compartmental syndrome, he even states that the pressures were raised and she had fasciotomies done. The diagnosis of compartmental syndrome cannot possibly be in doubt. Suffice to say that I do not agree with his opinion. My opinion has not changed and remains exactly the same.
There is no doubt that her current physical situation relates to the injuries that she sustained in the Air Force.
She has already proven that she can obtain civilian employment. She is able to remain as a secretary as long as she does not stand or walk around to any extent. I agree that she would not be capable of employment where she needed to stand or walk around for any period of time.
She is not capable of returning to the duties that she performed in the Air Force. The reason of course being that the parades, the marching and the various other forms of physical fitness that has to be maintained."
In his oral evidence Dr Edelman confirmed that the original diagnoses of stress fractures and compartmental syndrome that were made in relation to the applicant's legs in late 1992/early 1993 were supported by objective evidence at that time, namely a bone scan and raised fascial compartment pressures. He also confirmed that it was his opinion that the applicant was continuing to experience ongoing symptomatology, namely, pain in the shin area of both legs and tightness around the calves (the left calf being worse than the right calf), arising out of the abovementioned original conditions. As regards an explanation for the applicant's continuing symptomatology following the fasciotomies that were performed on her in July 1993, Dr Edelman commented that fasciotomies do not have a 100% success rate and that ongoing pain symptoms may occur following such an operation, for example, where the operation is performed at a late stage or in the case of "base fracture pain". He said that compartmental syndromes are seen by rheumatologists no less commonly than by orthopaedic surgeons, especially where the rheumatologist is practising in "sports medicine". He also said that compartmental syndrome is not a common condition and that neither compartmental syndrome nor stress fracture is a particularly serious condition in normal life. As regards the applicant's continuing symptomatology, Dr Edelman expressed the opinion that she had now "drifted into a chronic pain syndrome".
Two medical reports concerning the applicant prepared by Dr P Nathan, a practitioner in sports medicine, appear in the T documents. Dr Nathan's report of 10 March 1998 (T20), addressed to the Department of Defence, states:
"Tracy's condition of stress fractures and bilateral compartment syndrome of the lower legs remains a problem. She is undergoing a comprehensive rehabilitation program of stretches and exercises.
It is important that she can continue to attend the gym and swimming pool as this program is providing symptomatic relief. It is anticipated that this prevention program will continue indefinitely.
…".
Dr Nathan's report of 5 May 1998 (T29), addressed to the applicant's solicitors, states:
"Thank you for your letter dated 20 April 1998. Tracy has an accepted claim for compensation for bilateral stress fractures and compartment syndromes of the lower legs. She tells me that she had bilateral fasciotomies performed in August 1993 but unfortunately these have not helped her with the problems of recurring pain and tightness of the lower legs related to activities such as horse riding and walking.
I most recently saw her on the 30 March 1998 when she told me that she was again troubled by pains. It is my opinion based on her history and on physical examination findings that she remains unfit for employment in the air force. In my opinion she is unable to perform routine duties such as marching and running. It is my opinion that she has been unfit for these types of duties since her first attendance here on 7 April 1997 and that she remains unfit at this moment. I hope that this has been of assistance."
Mr F G Bell, Orthopaedic Surgeon, was called as a witness by the respondent. He confirmed that he had prepared a report, dated 14 December 1999, regarding the applicant at the request of the respondent's solicitors and that the opinions expressed in that report are honestly held by him. Mr Bell's report, which was tendered in evidence (Exhibit R5), states:
"I examined this 25 year old woman who attended on the 3 November 1999. She told me how she had joined the Royal Air Force (sic) in August 1992 when she was 17. She said she was undertaking basic training and trade training.
She tells me that the problem commenced in her legs with her training. She tells me that she was warned by a doctor in Wagga who had reported that in his view she was unsuitable for any form of military training because of her light bone and muscle structure.
In any event she was restricted from training particularly marching and then about 10 weeks after her induction into the Air Force she was required to undertake a 2.4 kilometre run and reported with very sore legs. She was seen by a specialist and a bone scan showed evidence of stress fractures which the specialist advised would take about 1 year to heal.
However she continued to have pain in her legs and Dr Stubbs, Orthopaedic Surgeon, performed bilateral fasciotomies so far as I can see in the anterior tibial compartment, she says without benefit. She went on to say that sometimes later she undertook some ice skating which nearly 'killed her'.
She tells me that at school she had undertaken no sport, that she hated it. She undertook horse riding only, bike riding and swimming. She said she had had back trouble with her pregnancy but no xrays had been taken. She told me that there was no history in her family of any trouble with legs.
She told me she was discharged from the Service in September 1995. I note on the grounds of bilateral stress fracture, compartment syndrome and somatiform(sic) disorder, the latter appearing to have been a considerable problem.
Ms Line's present complaints are as follows:1.She said she has no pain at rest. She says she has pain on ascending stairs and slopes, she has trouble with shopping causing pain in her legs.
2.She has complaint of night cramps but she says these are not visible bunching of musculature in her legs. She says she has little pain first thing in the morning.
3.She tells me she does her own housework but she does not squat or kneel because this tends to aggravate her pain.
4.She says her general health is good.
5.She finds that cold does not greatly affect the pain in her legs.
6.She says she wears joggers almost exclusively, that she never wears fashion shoes or shoes with heels greater than 1 to 1¼ inches in height.
On examination she was a healthy young woman, walked without a limp and was able to walk on her heels and toes without problem.
I note the scars just lateral to the subcutaneous anterior surface of the tibia and it would seem that it is only the anterior tibial compartment which has been released. The incisions of that are short but presumably the compartment was released subcutaneously for a greater length than the incisions would suggest.
She has normal distal pulses but I felt that the femoral pulse at the groin and the popliteal pulses were poor compared with the distal pulses.
Examination of her abdomen suggests that the aorta is intact though this does not exclude a more proximal stenosis perhaps of the aortic tree.
I could find no bony tenderness in either her tibia or fibular and examination of her back was normal.
Neurologically she was intact.
Xrays:
I examined the Isotope scan of 1992 which shows a stress fracture of the left fibular and the right tibia but by 1993 the abnormalities on the Isotope scan were negligible and a scan of 1999 I consider there is no evidence of persisting stress fractures.
Opinion:
I think the question of her ever having had compartment syndrome necessitating fasciotomies I think (sic) is considerably in doubt. She appears to have had no benefit either short term or long term from that procedure even though catheter studies on the anterior compartment I understand were done and found to be raised.
One would expect that if the fasciotomy was extensive and after that those symptoms would have been relieved but on the other hand the stress fractures would be sufficient to account for her pain and very closely associated in topographical proximity to the anterior compartment muscle which takes its origin from the tibia and therefore if indeed the current symptoms reported are true one would have to seek a different cause, perhaps more proximal in the form of an aortic stenosis or some such.
This is taking no account of the alleged somatiform (sic) disorder which she is reported to have which may of itself be the root cause.
In answer to your particular questions:1. I have listed the leg symptoms of which Ms Line complains now.
2. I have recorded the findings on examination.
3.I do not believe that a compartmental compression can account for the symptoms Ms Line has from her legs nor from her previous fractures.
4.I would not consider Ms Line to have an incapacity to engage in work at the same level in which she was engaged in the RAAF apart from the physical activities which she undertook for (sic) which I guess could return if she returned to the RAAF with further stress fractures.
5.I can find no good reason to believe that there are any restrictions to her capacity to work in civilian life as the result of the symptoms she had in 1992/1993.
6.I do not believe the signs and symptoms displayed by Ms Line at the present time arise out of her service in the RAAF. I have debated the other causes for her leg symptoms in the above."
In his oral evidence Mr Bell accepted that the applicant had stress fractures to her legs in 1992 which would have produced considerable pain but he said that she had recovered from that condition, the usual recovery time being about 3 months. He said that he had never seen a case where pain persisted after recovery from that condition. As regards compartment syndrome, Mr Bell said that that condition usually produces quite severe pain but that, as soon as the compartments are decompressed by a fasciotomy, the pain ceases. Accordingly, in the applicant's case, her complaints of ongoing pain following the fasciotomies that were performed on her in July 1993 led him to conclude that she had not been suffering from compartment syndrome. He disagreed with the view of Dr Howse and Dr Edelman that fasciotomy operations do not have a 100% success rate. He acknowledged, however, that Dr Howse had found that the applicant had significantly raised compartment pressures in both legs in May 1993 and that Mr G Stubbs, Orthopaedic Surgeon, had opined in June 1993 that fascial compartment pressure was the cause of her ongoing leg pain symptoms and had subsequently arranged for her admission to hospital for a fasciotomy operation which he performed in July 1993. Mr Bell added, however, that the making of a wrong medical diagnosis is not uncommon. He did not deny that the applicant continued to experience leg pain but he did deny that such ongoing pain was caused either by the original stress fractures (because they had long since healed) or by the compartment syndrome (because, in his opinion, she had never suffered from that condition). Asked what might be the cause of the applicant's ongoing leg pain, Mr Bell said that the diagnosis was uncertain but that possible causes were aortic stenosis (which he thought unlikely), and mental tension. He went on to say, however, that he could not find "any good cause why she has got continuing pain".
Mr Bell was questioned by the Tribunal regarding the symptoms of spontaneous compartment syndrome. He said that, in the case of the anterior tibial compartment, the usual symptoms are severe, sharp or throbbing pain, and in the case of the posterior compartment, the usual symptoms are cramping or a tightness type of pain. He said that such pain is usually associated with exercising the legs and usually diminishes once the person gets off their feet, although in the case of the posterior compartment an ache will usually persist similar to the ache felt in a muscle following a cramp.
The Medical Evidence – psychiatric/psychologicalA bundle of documents forming part of the applicant's RAAF service medical records was tendered in evidence by the respondent (Exhibit R1). Those documents comprise:
· a referral of the applicant by Dr K Reynolds, Joint Services Health Centre, to Ms P Bowden, Navy Psychologist, together with a report by Ms Bowden dated 13 July 1994 (pp 1-2);
· a report by Ms Bowden dated 7 November 1994 (p3);
· a report by Ms Bowden dated 10 February 1995 (pp 4-5);
· a referral of the applicant by Ms Bowden to Major P Vincent, Psychologist, dated 24 April 1995, together with a report by Major Vincent dated 23 May 1995 (p 6-9);
· a report by Dr C Andrews, Consultant Neurologist, dated 16 June 1995 (pp 10-11).
In her report of 13 July 1994 Ms Bowden referred briefly to the applicant's "dysfunctional family" background, her "strained" relationship with her mother and stepfather, and her "exceptionally poor" self esteem. In her report of 7 November 1994 Ms Bowden noted that she had seen the applicant on 11 occasions between July and October 1994 and continued:
"Slow progress has been made with Tracy during this time, but later sessions have seen a definite improvement in her demeanour. Having recently come to the conclusion/realisation that many of her difficulties are triggered by her relationship with her parents, Tracy has gradually been able to control her mood swings.
Emotional outbursts have decreased in frequency, and this has in turn contributed to a less volatile personality. Notwithstanding this general improvement, it is felt that Tracy will be unable to completely cease having such 'outbursts' until such time as she leaves the RAAF.
With many frustrations associated with the service, I believe Tracy will never be fully accepting of many aspects associated with a military lifestyle. Keen to pursue a career in teaching, I feel her current employment will continue to be a source of ongoing frustration and anxiety for her."
In her report of 10 February 1995 Ms Bowden noted a "huge improvement" in the applicant's presentation since she was first seen in that her "outbursts" were now occurring infrequently but commented on her "ongoing nightmares" and expressed doubts regarding her having "totally overcome outbursts of uncontrollable rage". Ms Bowden noted, in conclusion, that the applicant believed that all issues were now resolved and that regular counselling was no longer required and, accordingly, ongoing counselling had ceased on 2 December 1994. On 24 April 1995, however, Ms Bowden referred the applicant to Major P Vincent, Psychologist, because of her ongoing nightmares. In her report of 23 May 1995 Major Vincent outlined the applicant's family background, her feelings of "emotional neglect" by her parents, her fears of "rejection and abandonment" by her (then) boyfriend (Richard Line) and her associated fantasies. The report also states:
"Of primary concern is Tracey's (sic) history of outbursts or, as she calls them, 'whammies'. These outbursts arose after her RAAF enlistment and are accompanied by what she describes as a blinding and throbbing headache (rated as 4 on a 0-5 scale). She is able to identify the build up of an outburst, but does not appear to be able to prevent one. During these outbursts her thoughts focus on Rick and how other women are 'after him' (sexually), she also self mutilates (head banging and self-punching). There is also some reported visual disturbance (sees fragments instead of complete visual field and occasionally will see colour red) – her subjective experience is that she feels as if her head is 'swimming in cotton wool'. She also reports that she is never free of some grade of headache.
Tracey's (sic) workplace reports 'mood swings' and Tracey (sic) agrees that her mood state is quite voluble and that she will vary from extreme happiness to sadness in the space of a few moments – the mood change usually being 'caused' by someone else's negative statements to her. …".
Major Vincent stated in conclusion that she had substantial concerns about the applicant's presentation and therefore believed that referral to both a psychiatrist and a neurologist was warranted.
A report on the applicant by Dr C Andrews, Consultant Neurologist, dated 16 June 1995, addressed to Dr K Reynolds, Joint Services Health Centre, states as follows:
"Thank you for asking me to see this young girl who has what appear to be three problems. One is her aggressive outbursts which she says are always induced, usually by people teasing her or bating her. The other is her depression and difficulty sleeping and the third is her migraine. The migraine is a bifronto-temporal occipital headache associated with photophobia and hyperacusis. On occasions there has been the visual aura of migraine.
The aggression is always induced and not spontaneous.
In her childhood she said that she was somewhat of a day dreamer, had good behaviour and was always conscientious and a good trier and did not have a prior history of aggression or hyperactivity.
Her EEG trace in my rooms was normal.
She is in a stable de facto relationship for the past two years and plans to marry.
She feels that her problems mainly emanate from her work, particularly the work culture.
I have read the psychological report.
As far as I can tell there is no background neurological condition that could account for the aggression. I think it is psychologically driven.
I have started her on Epilim 200 mgs t.d.s for the control of her migraine and also as a mood stabiliser. I will review her in a month's time.
I would recommend that she be removed from her present work situation if at all possible."
A report on the applicant by Dr B White, Psychiatrist, dated 28 June 1995, addressed to Dr K Reynolds (T5) states as follows:
"Thank you for your referral. I saw Tracy on 28 Jun 95. She has a history of worsening headaches since being in Canberra and now reports constant headaches with periodic exacerbation, especially at work. She has also been having recurrent abdominal pain in different quadrants. She has had a laparoscopy with apparent adhesions. However, this pain is more consistent with a psychogenic process. Her episodic temper tantrum and head banging appear to have settled over the last three to four months.
She does not have a Major Depressive Disorder, nor a psychotic disorder. My diagnosis is that she has a form of psychogenic pain disorder, which comes under the category of Somatoform Disorder, producing headaches and stomach pains. This is likely to have a complex aetiology, but I would consider that the main source is anxiety based, in interaction with her personality. It is likely that this is largely an unconscious process but there is clear secondary gain from this, and some conscious exacerbation would not be surprising. There are some features of personality disorder, such as daily mood swings (affective lability), magical thinking, being worse under stress, and this indicates she is not suited to the RAAF life. However, she does also have this diagnosable neurotic psychiatric disorder.
There are treatment options that could be considered including relaxation techniques of various types including biofeedback, and hypnosis. These will have limited effect only and I do not think that they will resolve her pain. I recommend that she avoid sedative medications. I am unsure as to whether any medication will be very effective, but since she is on a trial of Epilim, it may be worth pursuing, but the chance of resolution with this is small.
I recommend that her condition is significantly handicapping and reduces her ability to serve in the RAAF and that she should be discharged medically unfit for service. The Prognosis is that I expect her condition will not resolve and continue to worsen while in the RAAF. I would expect improvement out of the RAAF, but she is at risk of further such pain if under any significant stress in the future. It is worth noting that service in the RAAF cannot be considered the sole cause of her condition, but as a precipitant to her pain disorder.
If she is still in the RAAF in two months, I would like to review her progress. Could you please arrange an appointment. I would appreciate a copy of Dr Andrews' report. I would also appreciate him being sent a copy of this letter."
Dr D Shub, Consultant Psychiatrist, was called as a witness by the respondent. The T documents contain 2 reports by Dr Shub concerning the applicant dated 23 April 1996(T10) and 10 May 1996 (T11). A further report on the applicant by Dr Shub, dated 6 December 1999, was tendered in evidence (Exhibit R7). In his report of 23 April 1996 addressed to Defence Centre – Perth, Dr Shub set out in detail the applicant's history and continued:
"…
Mental State Examination:
Ms Bolstad presented as a casually dressed, loquacious young woman who related in a somewhat flippant, histrionic style. She tended to be particularly dramatic whilst describing the nature of her headaches and impressed as pseudo-mature. Affectively she displayed no evidence of either anxiety or depression. No abnormal belief or experiences were elicited – though I feel that at times she over-values her abilities. She impressed as of average intelligence, and possesses limited insight into the nature of her disorder.
…
SUMMARY AND ASSESMENT:
I will now respond to the extensive series of questions posed in your letter of 15 March 1996.1. From what condition is Ms Bolstad currently suffering?
Somatoform disorder.2. What is the probable cause of her current condition?
It is more likely that her condition is a consequence of some other cause, such as an injury or the natural progression of a disease neither of which is related to her Defence Force employment.
Specifically, I consider that Ms Bolstad's psychological disorder arose because of her pre-existing personality structure, and impaired repertoire with respect to her ability to manage stress.3.Is it likely that she would have developed the current condition or a similar one if she had never served in the Defence Force?
Yes.
4.Did her employment in the Defence Force make a material contribution to her current condition?
Yes, in the sense that it exposed her to a range of stressors that resulted in the expression of her disorder.
5.Is the condition permanent or temporary?
I consider the disorder will have a chronic course and will be determined very much by her ability to manage stress.
6.If it is permanent, at what date is it likely to have become so?
Once these disorders manifest themselves, they tend to a course of chronicity. However, the nature of her symptoms are likely to fluctuate situationally.
7.If it is temporary, when are the effects likely to cease?
Her symptoms are likely to be minimised when she is not exposed to a stressful environment.
8.If the condition is due to an aggravation of a pre-existing or underlying condition, when are the effects of the aggravation likely to cease?
As described above, under low levels of stress.
9.Is her condition static or is it likely to improve or deteriorate in the future?
I consider her disorder is likely to have a chronic course.
10.If it is static, at what date is it likely to have become so?
I am unable to answer this question.
11.If it is likely to deteriorate, is it at the stage of doing so at a steady rate in a predictable manner?
I am unable to answer this question.
12.What treatment if any is indicated for her current condition? If surgery is indicated, when is it likely to occur?
Traditionally, treatment for this disorder involves a psychotherapeutic approach in which she is taught to more appropriately manage her levels of anxiety/stress. Medication should be used with caution and in my opinion, has a limited role in the management of this condition. Medication may have a role if there are any emergent symptoms of depression or anxiety.
13.Is Ms Bolstad incapacity (sic) by her current condition for all types of work?
No. Ms Bolstad may well be able to function occupationally within an environment that she perceives to be of low stress.
14.If she is not incapacitated for all types of work, to what extent and in what way does the current condition restrict her ability to work? In this context, please indicate:
a.Broadly the types of work she can and cannot do, eg could she perform sedentary or semi-sedentary jobs? And
b.Any constraints on her employment including the nature and scope of those constraints?
In my opinion she would be able to adequately function within her area of training, providing her coping mechanisms are adequate.
15. Is her level of incapacity likely to decrease in the future?
If she undertakes appropriate psychological therapy, I would feel that her level of incapacity should gradually decrease.
16.What types of physical activities should she avoid because they are likely to aggravate her condition?
No particular physical activities are contra-indicated.
17.Has her condition induced any consequential physical abnormalities in any other part of her body and, if so, what is your diagnosis of the abnormalities and your prognosis for them?
No.
18.In addition to the answers to the foregoing questions, have you any other observations to make particularly about the probable cause, duration or effects of his (sic) current condition?
The answer to this question has been provided in the body of the report.
19.Would you please indicate the extent of the impairment using the relevant table(s) of the 'Guide to the Assessment of the Degree of Permanent Impairment'. Table(s) are enclosed.
I would be in agreement with Dr Burvill's assessment that the level of her diminished capacity to function as a clerk is minimal – less than 10%.
20.Do you consider that the impairment could be reduced by further medical or rehabilitative treatment? If so, what treatment would you advise and what reduction in the degree of permanent impairment could reasonably be expected as a result of that treatment?
As indicated above, I feel that appropriate psychotherapeutic management – with a particular focus upon anxiety management approaches would be indicated. The aim of this form of treatment would be to allow Ms Bolstad to express her emotional distress verbally rather than somatically. This process would also need to involve an exploration with Ms Bolstad for any potential unconscious motivation to somatically express her distress. If such therapy can be provided, and she is motivated to undertake it, I would expect there to be a reduction in her symptomatology.
…".
In a brief supplementary report of 10 May 1996 Dr Shub stated:
"I am writing to clarify my report of 23 April 1996 regarding Tracy Bolstad, as requested in our telephone conversation of 7 May 1996.
It is my view that Ms Bolstad's symptoms and complaints regarding her lower leg condition are an expression of her Somatoform Disorder, and do not represent lower limb pathology. As indicated in my report, I consider that Ms Bolstad's Somatoform Disorder developed as a consequence of factors that pre-dated her exposure to the Defence Department.
…".
Dr Shub's report of 6 December 1999, addressed to the respondent's solicitors, states as follows:
"…
Ms Lines (sic) was seen on 10/11/99, when she was accompanied by her two year old child – which made the examination process somewhat more difficult than it normally would be. However, she was able to update me with relevant historical developments, and detailed her current circumstances.
Current Clinical State
Essentially, Ms Lines indicated that her previously experienced abdominal pain and episodic headache had resolved – but that she was still experiencing bilateral lower limb pain. She stated that this pain was as severe as ever, and that it significantly interferes with her functional capacity. She conceded that she had adjusted to the pain better than she had previously, and that some forms of physiotherapy had assisted in decreasing the pain intensity. Ms Lines stated that the nature of her bilateral lower limb pain precluded her from working, and suggested to me that she expected that her pain and limitation of movement would continue.
There were no other symptoms (either psychological or physical) and no evidence to suggest that she was either morbidly anxious, or clinically depressed.
Mental Status Examination
Ms Lines presented as a casually attired woman in her mid-twenties who spent a substantial amount of the session interacting with her young child and attempting to occupy him with appropriate activities. As indicated above, this interfered with the examination process – though I was able to obtain all of the necessary data. As on our previous meeting, she tended to be garrulous and opinionated – and related to me in a flippant, confident, and at times over-familiar style. Themes of externally-directed criticism (particularly towards the RAAF and her previous medical attendants) were evident.
She was neither anxious nor depressed, and revealed no abnormal beliefs or experiences.
She impressed as of average intelligence, and as having limited insight into the nature and consequences of her disorder.
Diagnostic pinion
My view is that Ms Lines continues to suffer from a Somatoform Disorder. I believe that the category of Somatoform Disorder that best fits her clinical state is that of Pain Disorder – defined as follows by DSM IV:
(f) where paragraph (b), (c), (d) or (e) applies to the employee—whether the employee's failure to accept an offer of employment, to engage, or to continue to engage, in employment, to undertake, or to complete, a rehabilitation or vocational retraining program or to seek employment, as the case may be, was, in Comcare's opinion, reasonable in all the circumstances; and
(g) any other matter that Comcare considers relevant.
…
(6) Where an amount of compensation calculated under paragraph (3)(a) is less than the minimum earnings, the amount so calculated shall be increased by an amount equal to the difference between that amount and the minimum earnings.
…".
Section 4(1) of the Act contains the following relevant definitions:
"'ailment' means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development);"
"'disease' means:
(a) any ailment suffered by an employee; or
(b) the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee's employment by the Commonwealth or a licensed corporation;"
"'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;"
"'injury' means:(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, being 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), being an aggravation that arose out of, or in the course of, that employment;
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment;"
"'suitable employment', in relation to an employee who has suffered an injury in respect of which compensation is payable under this Act, means:
(a) in the case of an employee who, on the day on which he or she was injured was a permanent employee of the Commonwealth or a licensed corporation and who did not subsequently terminate that employment—employment by the Commonwealth or the licensed corporation, as the case may be in work for which the employee is suited having regard to:
(i) the employee's age, experience, training, language and other skills;
(ii) the employee's suitability for rehabilitation or vocational retraining;(iii) where employment is available in a place that would require the employee to change his or her place of residence—whether it is reasonable to expect the employee to change his or her place of residence; and
(iv) any other relevant matter; and
(b) in any other case—any employment (including self-employment), having regard to the matters specified in subparagraphs (a)(i), (ii), (iii) and (iv);".
Section 4(9) of the Act provides:
"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."
The issues
The general issues in this matter are:
whether the applicant suffered during her period of service in the RAAF, and has continued to suffer, a physical and/or mental ailment; and
if so, whether any such ailment is an "injury" as defined in s4(1) of the Act; and
if so, whether any such "injury" has resulted in the applicant's "incapacity for work" as explained in s4(9) of the Act; and
if so, the amount of compensation that the respondent is liable to pay to the applicant in respect of any such injury pursuant to ss 14(1) and 19 of the Act.
Subsequent to the hearing in this matter both parties, in accordance with directions of the Tribunal, lodged extensive written submissions with the Tribunal. Those submissions have been carefully considered by the Tribunal but will not be set out in these reasons.
Findings on Material Questions of Fact and Consideration of Issues
Did the applicant suffer during her period of service in the RAAF, and does she continue to suffer, a physical and/or mental ailment?On the basis of the medical evidence before it – in particular, the contemporaneous reports of Mr Van Der Rijt, Mr Stubbs and Dr Howse – the Tribunal finds that the applicant, during her period of service in the RAAF, suffered the following physical ailments, namely, stress fracture of the left and right tibiae and of the left fibula, and anterior and posterior compartment syndrome in both legs.
On the basis of the medical evidence before it – in particular, the contemporaneous report of Dr White and the subsequent reports of Dr Shub and Dr Skerritt – the Tribunal finds that the applicant, during her period of service in the RAAF, suffered a mental ailment, namely, somatoform disorder (as opined by Dr White and Dr Shub) or anxiety/depressive disorder (as opined by Dr Skerritt). The Tribunal notes that Dr Skerritt did not exclude a diagnosis of somatoform disorder in the applicant's case.
The question whether the applicant has continued to suffer a physical ailment is somewhat more problematic, given that there is some conflict in the medical evidence as regards the likelihood that the applicant is continuing to suffer leg pain by reason of the stress shin fractures and bilateral compartment syndrome she suffered in her legs during her RAAF service. The Tribunal, however, regards the applicant as a credible witness and accepts her evidence that she has continued at all material times to experience pain in both legs. Furthermore, there is no suggestion in the medical evidence that the applicant has not continued to experience leg pain – even Mr Bell in his oral evidence was not prepared to deny that the applicant still experiences leg pain – although there is disagreement - in particular between Drs Edelman and Nathan on the one hand, and Mr Bell on the other – as to whether that ongoing leg pain is due, at least in part, to the stress shin fractures and bilateral compartment syndrome suffered by the applicant during her RAAF service. On the basis of the whole of the evidence before it, the Tribunal finds that the applicant has continued to suffer a physical ailment manifested in the form of chronic pain in both legs.
On the basis of the medical evidence before it – in particular, the reports and oral evidence of Dr Shub and Dr Skerritt – the Tribunal finds that the applicant has continued to suffer a mental ailment in the nature of a somatoform disorder (as opined by Dr Shub) or an anxiety/depressive disorder (as opined by Dr Skerritt).
Is each of the abovementioned physical and mental ailments suffered by the applicant an "injury" as defined in s4(1) of the Act?
Section 4(1) of the Act defines the word "injury" to mean, inter alia, a "disease suffered by an employee". The word "disease" is also defined in s4(1) of the Act to mean, inter alia:
"any ailment suffered by an employee … being an ailment … that was contributed to in a material degree by the employee's employment by the Commonwealth …".
As regards the applicant's ailment in both legs, it is clear that that ailment was originally "contributed to in a material degree" by the applicant's employment by the Commonwealth in that the bilateral stress shin fractures and compartment syndrome which produced the pain in her legs were, according to the contemporaneous medical evidence, caused directly by her marching and other heavy physical duties required to be undertaken by her during her recruit training in the RAAF. A more problematic question, however, is whether the applicant's subsequent and ongoing pain in her legs has continued to be "contributed to in a material degree" by her RAAF service. In the opinion of both Dr Edelman, Rheumatologist, and Dr Nathan, a practitioner in sports medicine, the applicant's subsequent and ongoing leg pain is attributable to the bilateral stress shin fractures and compartment syndrome that she suffered by reason of the marching and other heavy physical duties she was required to perform in the course of her RAAF service. Mr Bell, Orthopaedic Surgeon, on the other hand opined that the applicant's ongoing leg pain was not attributable to any physical cause, including the abovementioned stress fractures or compartment syndrome (the latter condition, in his opinion, never having been suffered by her). Of these conflicting opinions, the Tribunal prefers the opinion of Drs Edelman and Nathan to that of Mr Bell. The Tribunal notes that Dr Edelman examined the applicant in April 1996 and again in January 2000 and Dr Nathan examined her on several occasions between April 1997 and March 1998, whereas Mr Bell examined her on only one occasion in November 1999.
There is, furthermore, medical evidence before the Tribunal which supports the proposition that an additional – or perhaps alternative – cause of the applicant's ongoing leg pain is her psychiatric condition. Although Dr Skerritt's preferred diagnosis of the applicant's psychiatric condition was anxiety/depressive disorder rather than somatoform disorder, he acknowledged that, in the applicant's case, her ongoing leg pain symptoms may now be due entirely to a psychological cause (which has supplanted the original physical cause) or may be due to a combination of physical and psychological causes, in which event an appropriate diagnosis of the applicant's psychiatric condition would be somatoform disorder. Dr Shub's preferred diagnosis of the applicant's psychiatric condition was somatoform disorder but, in the Tribunal's opinion, his reports and oral evidence were somewhat equivocal as regards the relationship (if any) between her RAAF service and her somatoform disorder and associated leg pain symptoms. On the one hand Dr Shub stated that the applicant's somatoform disorder has been caused by factors unrelated to her RAAF service (such as her pre-existing personality structure and her low level of ability to manage stress), yet on the other hand he stated that her RAAF service did make a material contribution to her current psychiatric condition. Having regard to the whole of Dr Shub's evidence, the Tribunal's assessment is that he does acknowledge (as stated in his report of 23 April 1996) that the applicant's RAAF service "exposed her to a range of stressors" (which included, as he stated in his oral evidence, her chronic leg pain) "that resulted in the expression of her (somatoform) disorder", and that disorder was itself manifested in the subsequent and continuing symptoms of leg pain experienced by the applicant. In short, the Tribunal is of the opinion that Dr Shub's evidence acknowledges that the applicant's RAAF service has contributed in a material degree to the development of a somatoform disorder and thereby to the subsequent and ongoing pain symptoms in her legs.
Accordingly, the Tribunal finds, on the basis of the analysis set out in paragraph 57 above and/or the basis of the analysis set out in paragraph 58 above, that the applicant's chronic pain in both legs is an ailment that has been "contributed to in a material degree" by her employment by the Commonwealth (namely, her RAAF service) and is, therefore, a "disease" as defined in s4(1) of the Act.
Likewise, having regard to the whole of the psychiatric/psychological evidence, the Tribunal finds that the applicant's continuing psychiatric condition of somatoform disorder or anxiety/depressive disorder, is an ailment that has been "contributed to in a material degree" by her employment by the Commonwealth (namely, her RAAF service) and is, therefore, a "disease" as defined in s4(1) of the Act. According to that evidence, the applicant's RAAF service contributed in a material degree to the development of her abovementioned psychiatric condition by subjecting her to a range of workplace stressors including her workload, poor interpersonal relationships with senior colleagues, and her ongoing leg pain following her original service-related injury to her legs.
In terms of the definition of the word "injury" in s4(1) of the Act, each abovementioned "disease" will necessarily also constitute an "injury" for the purposes of the Act provided that it was not "suffered by (the applicant) as a result of reasonable disciplinary action taken against (her) or failure by (her) to obtain a promotion, transfer or benefit in connection with … her employment". The respondent submitted that that proviso was not satisfied in this case in that, if the applicant suffered a "disease" (as defined in s4(1) of the Act), that disease was suffered by her as a result of her failure to obtain a transfer or benefit in connection with her employment. The Tribunal does not accept that submission. On the whole of the evidence before it, the Tribunal is not satisfied that, if there was a failure by the applicant to obtain a "transfer or benefit in connection with … her employment", either of the applicant's diseases, whether physical or psychiatric, was suffered by her as a result of such failure, within the meaning of the definition of "injury" in s4(1) of the Act. As already found by the Tribunal (see paragraphs 57-59 above), the applicant's physical disease – namely, the chronic pain in her legs – is attributable either to the bilateral stress shin fractures and compartment syndrome that she suffered by reason of the marching and other heavy physical duties she was required to perform in the course of her RAAF service, or to a somatoform disorder which was itself caused, at least partly, by the range of workplace stressors (including her workload, poor interpersonal relationships with senior colleagues, and her ongoing leg pain) to which she was subjected in the course of her RAAF service. Likewise, the Tribunal has also found (see paragraph 60 above) that the applicant's mental disease – namely, anxiety/depressive disorder or somatoform disorder – is attributable, at least in part, to the abovementioned workplace stressors. Given those findings as to the causes of the abovementioned diseases suffered by the applicant, it follows that neither of those diseases can be said to be suffered by her "as a result of" failure by her to obtain a transfer or benefit (if any) in connection with her employment, within the meaning of the definition of "injury" in s4(1) of the Act: see Comcare v Mooi (1996) 69 FCR 439 at 448; Trewin v Comcare (1998) 84 FCR 171 at 175-176.
Accordingly, the Tribunal finds that each of the "diseases" referred to in paragraphs 59 and 60 above constitutes an "injury" (as defined in s4(1) of the Act) for the purposes of s14(1) of the Act.
Has each "injury" resulted in the applicant's "incapacity for work" as explained in s4(9) of the Act?Section 4(9) of the Act provides that a reference in the 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 ... in that work or any other work immediately before the injury happened."
Thus the phrase "incapacity for work" in the Act refers to either total incapacity for work or, in the sense referred to in para (b) of s4(9), partial incapacity for work. There is no suggestion in the present case that the applicant is, or was at any material time, totally incapacitated for work.
As regards the matter of partial incapacity for work, the applicant's evidence was that, following the development of pain in her legs in late 1992 during her recruit training, she was placed on restricted duties which involved no marching, no running and no prolonged standing – activities that she had formerly been required to engage in for the purpose of recruit training – and those restrictions continued for the remainder of her RAAF service. That evidence was not contradicted and the Tribunal accepts it. The Tribunal has already found that the development of the applicant's leg pain was associated with her suffering bilateral stress shin fractures and compartment syndrome in late 1992 by reason of the marching and other heavy physical duties she was required to perform in her recruit training and that each of those conditions was, when it arose, an "injury" within the meaning of the Act. The Tribunal also accepts the applicant's evidence that the pain symptoms in both legs persisted after those injuries occurred, notwithstanding medical treatment, and that she continues to experience them at the present time and, on the basis of that evidence and the medical evidence before it, the Tribunal has found that the applicant's present condition in her legs is an "injury" within the meaning of the Act. The Tribunal also finds, on the basis of the whole of the evidence before it, that, as a result of that injury to her legs, the applicant suffered, and continues to suffer, "an incapacity to engage in work at the same level at which … she was engaged by the Commonwealth .. in that work or any other work immediately before the injury happened", within the meaning of s4(9)(b) of the Act.
As regards the applicant's psychiatric condition, the Tribunal has found that that too is an "injury" within the meaning of the Act. On the basis of the whole of the psychiatric evidence before it, the Tribunal finds that the applicant, by reason of that injury, was rendered incapable of continuing to engage in the clerical work in the RAAF environment that she was engaged in immediately before that injury occurred. The Tribunal also finds that the applicant, by reason of that injury, continues to be incapable of engaging in such clerical work in the RAAF. If it be necessary also to consider the applicant's capacity for civilian employment, the Tribunal is satisfied, on the basis of Dr Skerritt's evidence, that she continues to experience relatively mild symptoms of anxiety and depression and, having developed the condition of anxiety/depressive disorder, she has become more susceptible to suffering episodes of that disorder in the future in the sense that such an episode is now likely to be triggered by a lower level of stress than was formerly the case. Having regard to those considerations the Tribunal finds that, by reason of her psychiatric injury, there has been some – although not a substantial – impairment of the applicant's capacity to engage in civilian employment at the same level at which she was employed in the RAAF immediately before that injury was sustained. Accordingly, the Tribunal finds that, as a result of the abovementioned psychiatric injury, the applicant suffered, and continues to suffer, "an incapacity to engage in work at the same level at which … she was engaged by the Commonwealth … in that work or any other work immediately before the injury happened", within the meaning of s4(9)(b) of the Act.
The Tribunal finds, therefore, that the applicant is "incapacitated for work as a result of an injury" within the meaning of s19(1) of the Act and, accordingly, s19 of the Act applies to her.
What amount of compensation is the respondent liable to pay to the applicant in respect of her injuries, pursuant to ss14(1) and 19 of the Act?It follows from the abovementioned findings that the respondent is liable, pursuant to s14(1) of the Act, to pay compensation to the applicant in respect of her injuries, namely, chronic pain in both legs and somatoform disorder or anxiety/depressive disorder, and the Tribunal so finds. Whereas the respondent's liability to pay compensation to the applicant arises under s14(1) of the Act, however, the amount of compensation which the respondent is thereby liable to pay to the applicant is determined in accordance with the relevant provisions of s19 of the Act.
In order to apply s19 of the Act in the circumstances of the present case, it is first necessary to determine the meaning of the phrase "suitable employment" (which appears throughout subss (2), (3), (3A) and (4) of that section) in those circumstances. The phrase "suitable employment" is defined exhaustively in s4(1) of the Act (see paragraph 49 above). In the present case, the applicant's employment by the Commonwealth was not terminated by the applicant – instead, it was terminated by the Commonwealth when she was discharged from the RAAF on 17 September 1995 on the ground that she was medically unfit for further service. In those circumstances, para (a) in the statutory definition of "suitable employment" applies and, accordingly, "suitable employment" in the present case means "employment by the Commonwealth … in work for which the (applicant) is suited having regard to" the matters referred to in subparas (i) – (iv) of para (a).
Having determined the meaning of "suitable employment" in the circumstances of this case, it then becomes necessary to construe the composite phrase "able to earn in suitable employment". In Telstra Corporation Ltd v Warner (1994) 20 AAR 259 the Federal Court (Heerey J) distinguished between the phrases "capable of earning … in suitable employment" and "able to earn in suitable employment" which appear in s 132A of the Act. Heerey J expressed the opinion (at p264) that the former phrase refers to "capacity to work", whereas the latter phrase requires a consideration of the factors specified in s19(4) of the Act and other relevant maters, including the actual availability of "suitable employment" for the person concerned. Clearly, then, the phrase "able to earn in suitable employment" in s19 of the Act is not synonymous with "capacity to earn in suitable employment".
As regards the factors specified in s19(4) of the Act (see paragraph 49 above), it is common ground that the factors specified in paras (b), (c) and (d) of that subsection are not applicable on the facts of the present case. That leaves for consideration the question of the applicability of paras (a), (e), (f) and (g) in this case.
The considerations referred to in paras (a) – (g) of s19(4) of the Act are only relevant insofar as they assist in the determination of "the amount per week that an employee is able to earn in suitable employment": Comcare v Chenhall (1996) 69 FCR 201 at 206 (emphasis added). In the present case a relevant consideration (under para (g)) is, as referred to in Telstra Corporation Ltd v Warner (paragraph 69 above), the actual availability of "suitable employment" (within the meaning of para (a) of the statutory definition of that phrase - see paragraph 68 above) for the applicant. The Tribunal notes that, in Pulitano v Telstra Corporation Ltd (1998) 50 ALD 1015, the Federal Court of Australia (Emmett J) said (at p1017) that the term "suitable employment" in s19 of the Act refers to "employment of the nature concerned with the Commonwealth and not simply employment by the Commonwealth alone". Thus, in the present case a relevant consideration is the actual availability to the applicant of clerical work with the Commonwealth for which she is suited having regard to the matters specified in subparas (i) – (iv) of para (a) of the statutory definition of "suitable employment" (see paragraph 49 above).
In the present case the evidence is that the applicant's employment with the Commonwealth was terminated by the Commonwealth on 17 September 1995 on the ground that she was medically unfit for further service. At that time the applicant was employed in the RAAF as an accounts clerk and had been employed in a clerical capacity in the RAAF from early 1993. Since the termination of her employment by the Commonwealth no offer of employment has been made to her by the Commonwealth, nor has the opportunity to undertake a rehabilitation or vocational retraining programme been offered to her by the Commonwealth. The Tribunal accepts the applicant's evidence that, upon her discharge from the RAAF, she actively sought employment and also registered with the Commonwealth Employment Service and obtained some short-term employment in the private sector in late 1995/early 1996 and then full-time employment as a clerk at a State university from 9 April 1996 to June 1997 (it is common ground that the relevant date is 20 June 1997) when she was made redundant. The Tribunal also accepts the applicant's evidence that, in the period before she was made redundant on 20 June 1997 and thereafter, she actively sought employment until the birth of her first child on 8 January 1998, but without success. The Tribunal also accepts the applicant's evidence that, since her discharge from the RAAF, she has always been willing, and is presently willing, to be employed by the Commonwealth. The Tribunal notes that confirmation of the applicant's willingness to be employed in suitable employment with the Commonwealth was conveyed to the respondent's solicitors by letter dated 9 December 1998 from the applicant's Legal Aid solicitor (Exhibit A3).
Having regard to the circumstances and considerations outlined in the preceding paragraph, the Tribunal is prepared to infer that, since the applicant's employment in the RAAF was terminated by the Commonwealth in September 1995, the Commonwealth has been either unable or unwilling to employ her in clerical or other work which would be suitable for her having regard to the matters specified in subparas (i) – (iv) of para (a) of the statutory definition of "suitable employment". The respondent, the Tribunal notes, did not contend otherwise. Accordingly, the Tribunal finds that, since the applicant's discharge from the RAAF on 17 September 1995, "suitable employment" (as statutorily defined) has not in fact been available to her and, therefore, she has not been "able to earn" any amount in "suitable employment" within the meaning, and for the purposes, of subss (2) and (3) of s19 of the Act, since that date.
Accordingly, the Tribunal's findings as regards the amount of compensation which the respondent is liable to pay to the applicant in respect of her injuries, pursuant to ss 14(1) and 19 of the Act, are as follows:
100% of the applicant's "normal weekly earnings", as calculated under s8 of the Act, for each of the first 45 weeks immediately after 17 September 1995, in accordance with s19(2) of the Act; and
for each week after the end of the abovementioned period of 45 weeks until 20 June 1997 during which the applicant was employed for 100% of her "normal weekly hours" during that week, 100% of her "normal weekly earnings", as calculated under s8 of the Act, in accordance with s19(3)(f) of the Act; and
for each week after 20 June 1997, 75% of the applicant's "normal weekly earnings", as calculated under s8 of the Act, in accordance with s19(3)(a) of the Act.
Decision
For the above reasons the Tribunal sets aside the decision under review and, in substitution therefor, decides that:
(a)the respondent is liable, pursuant to s14(1) of the Act, to pay compensation to the applicant in respect of her injuries, namely chronic pain in both legs and somatoform disorder or anxiety/depressive disorder, resulting in her incapacity for work; and
(b)the respondent is liable, pursuant to s19 of the Act, to pay to the applicant , in respect of the abovementioned injuries, the amounts of compensation as set out in paragraph 74 above.
The Tribunal orders, pursuant to s67(8) of the Act, that the respondent pay the costs of the applicant in these proceedings, such costs to be assessed in accordance with clause 6 of the Tribunal's General Practice Direction dated 18 May 1998.
I certify that the 76 preceding paragraphs are a true copy of the reasons for the decision herein of Associate Professor S D Hotop, Deputy President
Dr Y S Haslam, MemberSigned:
................................(sgd S Railton).................................
AssociateDate/s of Hearing 30 & 31 August 2000
Date of Decision 10 May 2001
Counsel for the Applicant Mr H Christie
Solicitor for the Applicant Legal Aid Western Australia
Counsel for the Respondent Mr J Lenczner
Solicitor for the Respondent Blake Dawson Waldron
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