Matheson v Workers' Compensation Regulator

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Matheson v Workers' Compensation Regulator [2017] QIRC 104
PARTIES:	Matheson, Fei (Appellant) v Workers' Compensation Regulator (Respondent)
WC/2016/218
PROCEEDING:	Appeal against a decision of the Workers' Compensation Regulator
DELIVERED ON: HEARING DATES:	29 November 2017 25 and 26 September 2017
HEARD AT:	Gladstone
MEMBER:	Industrial Commissioner Black
ORDER:	1. The appeal is allowed; 2. The decision of the regulator dated 19 October 2016 is set aside; and 3. Costs are reserved.
CATCHWORDS:	APPEAL AGAINST DECISION - Psychiatric or psychological injury – whether adjustment disorder secondary to accepted physical injury – whether depression developed over time or was the product of an acute onset - whether pain and disability arising from a workplace injury were the major significant contributing factor to the development of depression.
CASES:	Workers' Compensation and Rehabilitation Act 2003 s 32, s 550.
APPEARANCES:	Mr S G Moon, Counsel, instructed by Chris Trevor & Associates Lawyers, for the Appellant; Mr C J Clarke, Counsel, directly instructed, for the Workers’ Compensation Regulator.

Decision

Introduction

The appellant commenced work with UGL Operations and Maintenance Pty Ltd (UGL) on 19 June 2014. She was engaged to work in the capacity of "trades assistant" on the construction of a liquefied natural gas plant on Curtis Island.

The appellant described her work in the following terms (T1-14):

" … My duty was setting up and taking off the humpies and handling tools for the Chinese welders and also reorganise the welder machines, chemicals, tools in the different containers and also, like, put the – what’s that called – nuts and the washers in places the heatshields in class A, B, C areas. And, also, when the supervisors ask – because there were about 60 Chinese welders who can’t speak English well. So when supervisors asked them to do a job, I explained to them just to make sure everything is clear and safe."

This evidence was consistent with a description of duties included in a suitable duties plan (Exhibit 5). The plan stated that the appellant was employed as a "Trades Assistant and interpreter" and listed the following primary responsibilities:

-   General site preparation
-   Installation of safety barricading
-   Assisting tradesmen with correct tools as required
-   General site labouring duties as required
-   Assisting with translation of information for non-English speaking Chinese employees

Ms Fei Matheson, the appellant, injured her right shoulder at work on 29 September 2014. After being treated by site medical staff, she resumed work on light duties and continued her employment on light duties until 11 March 2015 when she was retrenched by her employer.

On 18 February 2016, WorkCover was advised by the appellant's treating psychologist that the appellant had developed adjustment symptoms, following which WorkCover considered whether the appellant's work related injury was the major contributing factor to the psychological condition. WorkCover decision on 29 April 2016 was unfavourable to the appellant, as was the Workers' Compensation Regulator's (the regulator) decision when she sought a review of WorkCover's decision. It is this decision of the regulator dated 19 October 2016 that is now subject to appeal.

The Legislation

The regulator conceded that the appellant was a worker within the meaning of the Act; that she had suffered a personal injury. The regulator did not accept however that the appellant's employment was the major significant contributing factor to the injury.

The issue for determination in the appeal is whether the appellant's psychiatric injury was caused by her physical injury in that pain or other limitations or consequences arising from her injury was the major significant contributing factor to the development or onset of her psychiatric condition. The relevant parts of the legislation are set out below:

32 Meaning of injury
(1)An injury is personal injury arising out of, or in the course of, employment if—

(a) for an injury other than a psychiatric or psychological disorder—the employment is a significant contributing factor to the injury; or
(b) for a psychiatric or psychological disorder—the employment is the major significant contributing factor to the injury.

…
(5) Despite subsections (1) and (3), injury does not include a psychiatric or psychological disorder arising out of, or in the course of, any of the following circumstances—

(a) reasonable management action taken in a reasonable way by the employer in connection with the worker’s employment;
(b) the worker’s expectation or perception of reasonable management action being taken against the worker;
(c) action by the Regulator or an insurer in connection with the worker’s application for compensation.

Chronology

The appellant was injured at work on 29 September 2014. An injury notification form completed on 30 September 2014 (Exhibit 3) discloses that the appellant presented with "right shoulder pain and restricted movements, forearm and buttocks pain after a fall at work". A diagnosis of "right shoulder rotator cuff strain, right forearm and buttocks soft tissue injury" was entered.

The injury form indicated that the appellant had limited fitness for work but could be assigned suitable duties subject to limitations noted as "avoid use of right arm"; "suitable for sit and office work"; and use of a sling. Other than some time lost on the day of injury, the injury did not cause the appellant to take time off work.

Injury notification forms in the evidence as Exhibit 5 showed that the appellant attended on the Site Medical Officer on 30 September 2014, 3 October 2014, 4 October 2014, 6 October 2014, 11 October 2014, 20 October 2014, and 27 October 2014. As at 27 October 2014 the appellant remained at work on suitable duties and continued to report ongoing pain and stiffness in the right shoulder.

The appellant submitted an application for workers compensation in respect to a right shoulder injury on 22 December 2014. WorkCover accepted the claim and paid the appellant benefits from 9 December 2014.

A risk management plan included in Exhibit 5 and dated 5 January 2015 recorded that while the appellant was capable of working normal hours, she had not fully recovered from her injury and would be likely to struggle with repetitive reaching, or repetitive work above shoulder height. The plan also noted that Dr Andrews believed that the appellant would experience pain if she undertook the restricted work.

The appellant had attended on Dr Andrews, an orthopaedic surgeon, on a number of occasions including on 6 November 2014, 9 December 2014, and 29 January 2015. A report prepared by Dr Andrews about these consultations is in the evidence as Exhibit 4. In terms of the first visit, Dr Andrews states that the appellant reported significant pain which had worsened following her injury. Treatment comprised physiotherapy and Voltaren. Dr Andrews confirmed that an earlier diagnosis of an aggravation of subacromial bursitis was not correct and entered a diagnosis of "adhesive capsulitis".

Dr Andrews reviewed the appellant again on 9 December 2014. He noted that a MR arthrogram had disclosed a SLAP tear of the superior labrum in addition to the adhesive capsulitis. He said that the appellant had "reduced range of motion in all directions with end of range pain with capsular stretching". He arranged for the appellant to undergo a steroid injection and said that the appellant could return to normal duties as long as they did not involve excessive reaching or work above shoulder height. He did not comment on pain levels relative to the previous consultation.

A WorkCover report in the evidence as Exhibit 13 disclosed that the appellant called WorkCover on 12 January 2015 and informed WorkCover that the steroid injections given by Dr Andrews were beneficial, that she feels that the right shoulder is getting much better, that she is coping at home, and that she is able to drive. However, the appellant also reported that pain levels remained and that pain levels increase when work is heavy and repetitive.

In terms of the 29 January 2015 consultation, Dr Andrews said that he was trying to settle the appellant's capsulitis. He said that the steroid injection had significantly improved the appellant's symptoms and arranged for a further injection that same day noting that the appellant continued to experience end of range pain. He said that he would review the appellant in a months time and said that "if her pain has settled" he will commence capsular stretching exercises.

In answering questions posed by WorkCover on 30 January 2015, Dr Andrews advised that if the appellant's symptoms had settled by the time of the next review (26 February 2015), the appellant may not need surgery for the SLAP tear, and declined to give an opinion at that time about when he expected the appellant's injury to resolve, preferring to wait until the next review before expressing an opinion.

A WorkCover report (Exhibit 25) disclosed that the appellant spoke to WorkCover on 30 January 2015. The report included the following entry:

"Worker stated that she never had work injury before. Supervisor has been talking with her a couple of times and told her she should be at home looking after her family. Worker tried to pickup daughter and her shoulder hurt and was unable to pick her up (Worker cried).

Worker does not want to go Home. Worker loves to work, want to stay at work. – Michael safety officer. Customer Advisor will discuss this with Employer."

Dr Andrews prepared a second report for WorkCover on 28 July 2015. The appellant had attended on Dr Andrews on four occasions between 30 January 2015 and 28 July 2015. On 26 February 2015, the appellant reported ongoing but slow improvement in her shoulder condition. Dr Andrews opined that it appeared that the capsulitis appeared to be settling, noted that the SLAP tear may require surgery, and recommended physiotherapy.

UGL effected the redundancy of the appellant on 11 March 2015. The appellant informed WorkCover of the event at 3:30pm the same day. A WorkCover record of the call (Exhibit 11) included an entry to the effect that the appellant reported that her shoulder was painful and her neck still sore.

The appellant's next consultation with Dr Andrews occurred on 30 April 2015. After examination, Dr Andrews stated that the appellant had ongoing problems with her right shoulder and that the appellant's shoulder condition "does not appear to be improving despite two steroid injections and six months of physiotherapy". The option of proceeding to surgery was discussed.

At the next consultation on 28 May 2015 the appellant reported "significant improvement in her symptoms" and the decision was made to continue with non-operative management. Dr Andrews anticipated that the shoulder condition would be stable and stationary "in a few months".

Dr Andrews final examination of the appellant took place on 28 July 2015. In his report he said that while the capsulitis had settled and the appellant had gradually regained full passive range of motion, she "has some ongoing pain". Dr Andrews noted a report from the physiotherapist to the effect that, "after some initial improvement", the appellant's shoulder had "plateaued" and that she had "ongoing irritability especially above shoulder height".

The appellant's series of consultations with Dr Andrews ended on the basis that the appellant was left with two options. Either "accept the shoulder as it is in its improved or plateaued state", or "proceed to surgery in an attempt to get some further improvement".

Dr Andrews had also signed a number of workers compensation medical certificates (Exhibits 6, 7, 8). The effect of the certificates relevantly was to establish that the appellant had been certified fit for suitable duties between 6 November 2014 and 28 August 2015.

A WorkCover report (Exhibit 25) disclosed that the appellant spoke to WorkCover on 1 May 2015 and told WorkCover that "she is not sleeping or eating properly, stressed about no wages. etc.".

The appellant was treated by Gladstone Hands On Physiotherapy on approximately ten occasions commencing on 4 May 2015 and finishing on 18 June 2015. The physiotherapist's notes (Exhibit 19) disclose that the appellant recorded improvement in her sessions. An entry about a session held on 29 May 2015 indicated that the appellant was doing well and her doctor and physio were happy with her progress. The entry added that the appellant would gradually return to normal over the next three months. However, an entry in the record of a subsequent session on 4 June 2015 disclosed that the appellant was experiencing increased pain. The appellant's condition was reported as still the same on the next visit, before the final session on 18 June 2015 when improved stiffness was reported and the appellant was said to be "looking good".

Exhibit 8 included a record of the appellant's attendances on the Calliope Medical Centre and the Gladstone Valley Medical Centre. The effect of these certificates was to establish that the appellant had been certified as having no capacity for any type of work from 25 June 2015 to 28 February 2016. However in a certificate issued on 29 February 2016, Dr McGree certified the appellant fit for suitable duties from 29 February 2016 to 30 June 2016.

The complete record of the appellant's attendances on the Calliope Medical Centre is in the evidence as Exhibit 16. The record discloses that the first time that the appellant attended at the medical centre after her injury was on 25 June 2015. During this consultation the appellant reported to Dr Batuwangala that she had "ongoing severe right shoulder pain" which was "worsening". An examination of the shoulder revealed "very painful limited movement". The record also noted that the appellant was scheduled to see her usual orthopaedic surgeon the following month. The appellant subsequently attended on Dr McGree for the same condition on 10 July 2015.

The record of a subsequent attendance on Dr McGree on 29 February 2016 disclosed that the appellant was "ok to return to interpretation and other ? child minding activities". The Calliope Medical Centre records also included an undated letter signed by Dr McGree and in which he wrote that the appellant "began to report symptoms of depression" to him in 2015. However, in his evidence in the proceedings, Dr McGree could not recall when he wrote the letter, nor could he to point to any record of consultation which was consistent with the reporting by the appellant of depression throughout 2015.

WorkCover referred the appellant for a vocational assessment on 1 October 2015. The assessment was conducted over the phone by Recovre. The purpose of activity was to consider the appellant's functional capacity, work history, transferable skills, and vocational interests to help identify suitable vocational options and assist the appellant in a return to alternative employment.

The record of some of the appellant's attendances on the Gladstone Valley Medical Centre is in the evidence as Exhibit 17. Three of the records related to the appellant's shoulder condition. On 13 January 2016, the appellant told Dr McGree that she was not sleeping or enduring very poor sleep and that she was worried about her injury. On 25 January 2016, the appellant spoke to Dr McGree about her shoulder injury. Finally, the record of consultation with Dr Mudiyanselage on 16 February 2016 disclosed that the appellant discussed her current pain level, the need for a subacromial injection and her inability to work. The appellant's low mood was also discussed and reference made to "stress due to long and ongoing work injury".

WorkCover referred the appellant for an independent medical examination to be conducted by Dr Allen (Orthopaedic Surgeon) on 27 January 2016. In his report (Exhibit 21) Dr Allen described the appellant's symptoms at the time as "pain over the right shoulder which radiates down the lateral border of the right arm and is increased by activity, especially abduction and forward elevation". Dr Allen said that the appellant's presentation was consistent with the clinical findings and in keeping with subacromial inflammation and adhesive capsulitis.

The appellant received treatment for a psychological condition from Mr Daniel Joubert on nine occasions. The first session was conducted on 5 February 2016 while the last session was held on 27 May 2016. Mr Joubert provided a report to WorkCover on 16 June 2016 (Exhibit 15). In his report, Mr Joubert said that the appellant reported that the pain from her work injury interrupted her sleep, reduced her appetite and negatively affected her mood. She also reported ongoing physical pain and difficulty and a marked increase in depressive symptoms after she was made redundant on 11 March 2015.
Dr Joubert informed WorkCover on 18 February 2016 that the appellant was suffering from adjustment symptoms following the physical injury sustained on 29 September 2014. In response to the claim, WorkCover arranged for the appellant to be assessed by a psychiatrist, Dr Duke.

WorkCover referred the appellant to Axis Rehabilitation for an independent physiotherapy case review. The assessment was conducted on 16 February 2016 and the report (Exhibit 22) prepared by the reviewing specialist physiotherapist, David Brentnall, was completed on 16 February 2016. The assessment involved a file review supported by a telephone interview with the appellant and her treating physiotherapist. In his report, Mr Brentnall recommended that the appellant complete a functional rehabilitation and pain education intervention.

The program recommended by Mr Brentnall commenced on 7 March 2016 and concluded on 10 March 2016. The program led to a further report (Exhibit 23) being prepared by Axis Rehabilitation for WorkCover on 14 March 2016. The report included both a physiotherapy and a psychological component.

Dr Duke's report dated 20 April 2016 is in the evidence as Exhibit 29. After consideration of Dr Duke's report WorkCover concluded on 29 April 2016 that the appellant's claim was not one for acceptance. The appellant sought a review of WorkCover's decision on 27 July 2016 but in a decision dated 19 October 2016, the regulator decided to confirm WorkCover's decision rejecting the claim.

The appellant was treated by the Mental Health Services section of the Gladstone Hospital on 29 June 2016 (Exhibit 24).

The appellant was examined by Dr Low at the request of WorkCover on 26 August 2016. In his report (Exhibit 26) Dr Low states that the appellant's symptoms were "pain over the shoulder which radiates down the lateral border of the arm". The report added that the pain is increased with overhead activity, that appellant could not sleep, and that the appellant had developed an adjustment disorder.

The appellant was assessed by Dr Flanagan at the request of the appellant's lawyers on 20 January 2017. Dr Flanagan concluded that while the cause of the appellant's depressive illness was multi-factorial, the "pain and disability, the loss of her job and the inability to work in a similar job" were the major significant causes of the depression.

The appellant was examined by Dr Blenkin on 18 July 2017 at the request of her lawyers. In his report (Exhibit 28) Dr Blenkin noted that in providing a history the appellant stated that the injury had changed her life and referred to her redundancy by the company as a factor contributing to the change. In the report Dr Blenkin opines that the appellant's "perception of the condition of her right shoulder is much worse than reality. She relates all of the problems in her life and circumstance to the work event where she sustained a relatively low grade and usually readily treatable strain to the right rotator cuff, which has resulted in ongoing impingement".
Medical Reports

The medical evidence comprises both documentary evidence in the form of reports tendered into the evidence by consent, as well as the testimony of witnesses in the proceedings. Evidence in the proceedings was given by Dr Duke (regulator), and by Mr Joubert, Dr McGree, and Dr Flanagan (appellant). The following reports were tendered into the evidence:
·Report of Dr Andrews dated 30 January 2015
·Report of Dr Andrews dated 28 July 2015
·Report of Sheetal Prasad dated 6 October 2015 (Recovre)
·Report of Dr Allen dated 29 January 2016
·Report of David Brentnall dated 17 February 2016 (Axis)
·Report of Matthew Forster and Sarah Walsh dated 14 March 2016 (Axis)
·Report of Dr Duke dated 20 April 2016
·Report of Mr Joubert dated 16 June 2016
·Report of Dr Low dated 26 August 2016
·Report of Dr Flanagan dated 23 February 2017
·Report of Dr Blenkin dated 27 July 2017
Redundancy
The appellant commenced employment with UGL on 19 June 2014. According to her employment contract (Exhibit 2), the appellant was engaged on a full time basis "for the duration of the Project or until such time as your skills are no longer required". It was the appellant's evidence that she expected the UGL job would last for about 12 months. She said that UGL told her this when she was offered the job.

The appellant accepted in her evidence that, relevant to her area of work, the job was starting to wind down towards the end of 2014. She said that some Chinese welders, and one or two trades assistant/interpreters, had been made redundant around that time (T1-43/44).

The appellant commenced light duties after her injury on 29 September 2014. She said that light duties comprised both indoor work and outdoor work. Indoor work involved clerical or administrative tasks in an office, while outdoor work involved general housekeeping on the site such as picking up rubbish. It appeared to be the appellant's evidence that she was not fully engaged. She said that there was not much office work, and she no longer assisted Chinese welders with interpretation.

The effect of the appellant's evidence was that she consistently experienced pain after her injury and that the pain and disability had extensively inconvenienced her both at home and at work. At work, she maintained that despite the terms of a suitable duties plan, she was always experiencing pain. She said that if she sat still, pain subsided, but if she started moving about, there was always pain. She said the pain disrupted her sleep and that she would only get two to three hours sleep each evening. She said that in the last couple of months before her retrenchment, she couldn't do anything because she was in pain. It was in these circumstances that her employer substantially curtailed her duties (T1-56):

" … they stopped me doing every work, sent me to the prep room, doing nothing. That I have to sign every day, when I finish work. And they all admitted 1, 2, 3, 4 I couldn’t do. So that form, they didn’t provide. I was surprised that."

While evidence was not adduced from UGL to contradict this version of events, the regulator took issue with the appellant's credit because her account of pain, disability and psychological distress, either at home or at work, was not consistent with contemporaneous records including suitable duties plans, Dr Andrew's reports and WorkCover communications reports. The regulator drew attention, inter alia, to a WorkCover report dated 12 January 2015 where the appellant reported that she was coping at home without any drama and that she was able to drive.

The appellant said that on 11 March 2015 a manager informed her that she had been made redundant (T1-24):
" … The manager said, “Fei, you’re made redundant now.” And after that, the car is outside waiting for me. There’s – then sent me to the ferry. I was – just suddenly. I was shocked. I thought, “Oh my God, I was made redundant,” and also sent me to – just straight to the ferry. Didn’t say anything. And I didn’t have chance even to say goodbye to my colleagues. That make me so sad.
And what made you so sad?‑‑‑I just feel what – they’ve been treating me unfairly. It’s just – how to say – put this way. I know they want me to go and – because they put me in the prep room doing nothing. I know they got something for me; they just didn’t put there and asked me to go. Make me sad. I just feel I was no person. Nothing – I worked hard and treated couple of things badly, and, also, I received a couple of awards. Then, because I got injured at work, just sent me home like that. That – I was disappointed, to be honest.
Okay. So you were disappointed at being sent home?‑‑‑No, but I was disappointed the situation happened to me. From my work there, I got injured, in pain, and light duties then redundant. All the things all together."

In an email (Exhibit 10) to WorkCover sent at 3.30pm on 11 March 2015, the appellant said that she was shocked that she had just been made redundant, and that she was speechless.

The relevant facts and circumstances associated with the appellant's employment and her redundancy are elicited in the absence of evidence from the appellant's employer about the reasons for the redundancy, or from others in the workplace who may have been able to give a first hand account of the appellant's physical and psychological condition after she sustained her injury, and while at work. Objective evidence was not available to clarify whether the redundancy was motivated by the appellant's work limitations, by the end of the project, or because work was no longer available in terms of her areas of contribution.

Dr Duke concluded that the appellant's depression was caused by the loss of her work role and subsequent difficulty she had in finding alternative employment. Dr Duke wrote in his report that from the time of her redundancy the appellant "has had ongoing problems with depression".

In so finding, Dr Duke relied principally on the history provided to him by the appellant. In particular, he took into account the appellant's statements that it was the "saddest day" of her life when she lost her job, that the event caused her to lose face, and that despite her injury she had enjoyed going to work before the redundancy.

The appellant agreed that she told Dr Duke that she had lost face arising from the redundancy. While she denied that she told Dr Duke that it was the "saddest day", Michael Matheson's recollection was that did describe the redundancy in these terms. Further, her own evidence was to a very similar effect. She described feeling sad, disappointed and speechless at the actions of her employer (T1-26).
Dr Flanagan said in his evidence that he thought that the history that he obtained from the appellant related more to events subsequent to the redundancy. He said that the appellant told him that when she was made redundant, "she was really, really upset because UGL had lied". Dr Flanagan agreed that sentiments of sadness and loss of face were consistent with the history that the appellant had given to him about the redundancy. However, Dr Flanagan said that that these sentiments were more related to the appellant's dismay at WorkCover's decision not to honour an earlier undertaking to pay incapacity payments.

In his report, Mr Joubert said that the appellant reported "ongoing physical pain and difficulty after the redundancy and a marked increase of depressive symptoms". Mr Joubert's evidence in the proceedings confirmed that the redundancy was a significant contributing factor (T2-22):

" … My understanding was that she was a – a community liaison officer and had been running, I think, her own business as an interpreter and offering some language classes, and she gave up a few of those roles to become a technical assistant for quite a high wage and – and found quite a lot of esteem in that. In being made redundant, her report to me was that she almost – she felt that as something shameful, that she had lost face, that she had an esteemed position and no longer had it. She was under the impression that she was on a light duties return to work plan and she thought she had made progress, and her redundancy she reported as being quite unexpected. She was not aware that this is something that was really an option, that that would happen to her.

It is hard to reconcile the proposition that the redundancy was unexpected with what was known about the appellant's employment arrangements with UGL. Firstly, the appellant knew that the job would last only twelve months and therefore she should have been expecting her UGL employment to end in the next couple of months. Secondly, she knew that the job was winding down and that some of the Chinese welders and a co-worker trades assistant/interpreter had been made redundant as early as November or December 2014. Thirdly, she knew that she had been unable to perform useful or productive work in the weeks leading up to her redundancy.

Nevertheless Mr Joubert confirmed that in his opinion the redundancy, or the circumstances associated with the redundancy, were a very significant stressor for the appellant (T2-22):
"… So as a stressor, the redundancy was a – a big shock to her, and in our subsequent sessions she would often talk about that as – as a big shock, you know, as a point in which she – she was shocked, but also felt let down. I have no collateral information, but her reports to me were that there were some assurances given to her by, I think, a supervisor, Brett – I think I – I can look up his surname if that’s relevant – that she would not be made redundant. I think there was some encouragement from – from him for her to go home. And so there was quite a shock for her when she went home on this advice, only to not be able to return back to the workplace."
It was Dr McGree's evidence that the appellant had spoken to him about the fact that she had lost her job and said that she was upset by that development. When talking to the Recovre assessor, the appellant attributed depressive symptoms to her redundancy, her injury and to her unemployed status.

The appellant told Dr Flanagan that after her retrenchment she had "applied for every job on line, approached every past employer without success". The appellant's evidence in the proceedings was similar. She said that she applied unsuccessfully for many jobs and that her injury and incapacity was a limiting factor (T1-29):
" … I tried to apply for many jobs as I can, but to ask friends, ask where I worked – workplaces – because I was on light duties I got refused and I applied for many jobs, but they refused me as well. I couldn’t find a job …"
The appellant said that she sought employment through friends and through on-line applications. She canvassed employment opportunities with five or six friends and she made about ten applications on-line (T1-30). Michael Matheson said that the appellant had made a lot of connections and either she had asked them, or they had offered, to assist with finding work. He denied that the appellant had focussed on getting work as an interpreter. It was his evidence that the appellant "was chasing work primarily in what she was doing before. She had contacts in that area who were going to try and find her work in doing what she was doing before. She enjoyed that" (T2-15).

The appellant's underlying determination to work and contribute to the family's economic well-being was not in doubt on her evidence. Work appeared to be inextricably connected to her cultural beliefs and values and to her own sense of self-esteem or self-worth. She emphasised the association consistently across various consultations or assessments. It was apparent in her insistence on being allowed to continue work in early 2015 notwithstanding her own pain or discomfort and her employer's doubts about her capacity to make a meaningful contribution. It was also apparent in her reaction to the advice that she had been made redundant.

Medical Evidence

The medical evidence includes witness evidence and a number of reports which were tendered by consent. It is relevant that despite the physical injury being sustained at the end of September 2014, the appellant did not report psychological symptoms to a practitioner until some time in 2015. While Dr McGree said that he had treated the appellant for depression in 2015, he did not recall the date of such treatment. However the Recovre report discloses that the appellant reported symptoms of depression during an assessment that took place on 1 October 2015. Mr Joubert first assessed the appellant on 5 February 2016, Ms Walsh assessed the appellant in the week commencing 7 March 2016 and Dr Duke assessed the appellant on 13 April 2016. Dr Flanagan's assessment was completed subsequently in January 2017. All of the reports, except the reports of Dr Flanagan and Dr Blenken, were prepared at the request of WorkCover.

The Recovre assessment (Exhibit 12) stated that the appellant appeared emotional and teary when recounting her experiences and discussing her injury and its reported subsequent impact on her social, psychological, occupational and family functioning. While the appellant reported feeling lost and down as a result of being made redundant, as a result of her injury and as a result of being unemployed, she "impressed as highly motivated to return to work".

The report noted that, in terms of functional tolerance, the appellant reported experiencing pain in particular circumstances including when sitting for long periods, during sleep, and upon waking. The appellant also reported being unable to lift items above shoulder height or items weighing in excess of 5 kg.

In terms of her mood, the appellant reported feeling "sad" and "down" due to her injury and her subsequent inability to perform normal activities. She also reported symptoms relating to anhedonia, social isolation, low mood, crying, low self-esteem and confidence, hopelessness and helplessness.

In terms of the activities of daily living, the appellant reported that because of her injury she could not dress herself without assistance, she had reduced community and domestic involvement, and she was unable to pick up her daughter. She reported that the injury had significantly impacted on her lifestyle and spirit as she is unable to work, provide for her family, socialise, nor volunteer/assist others in the community.

A purpose of the report was to identify individual strengths which might facilitate an eventual and successful return to work and also identify return to work barriers. Strengths included the appellant's belief that she needed to work in order to regain a sense of purpose and achievement, her eagerness and motivation to return to work, and her need to support her family and diminish feelings of burden. Barriers included the appellant's "medically certified inability to lift or reach above her shoulders, her inability to independently job seek, and her symptomatology relating to a depressed mood.

Dr McGree was the appellant's treating practitioner and also a friend. He said that the appellant began to report symptoms of depression to him in 2015 as a result of pain caused by her shoulder injury. It was unclear on the evidence whether Dr McGree's opinion had been informed by home visits or arose out of consultations in his surgery. The medical records disclosed that the only occasion that Dr McGree treated the appellant in 2015 was on 10 July 2015. However while the entry relating to this consultation referred to the shoulder injury, it did not include any mention of psychological symptoms.

The Axis physiotherapy report dated 17 February 2016 noted that as at the date of review the appellant had completed 59 physiotherapy sessions as a result of her shoulder injury at work on 29 September 2014. Despite the number of ongoing physiotherapy sessions, the appellant's treating physiotherapist had concluded that the appellant "was getting worse rather than better" and reported a deterioration in her "levels of pain, function and psychosocial status".

However, the reviewing specialist physiotherapist, David Brentnall, who prepared the report expressed doubt about the claimed levels of pain and function. He noted that questionnaire results showed extremely high perceived levels of constant pain, negative beliefs regarding an ability to return to work, and low perceived levels of function. Mr Brentnall recommended that the appellant undergo "a functional rehabilitation and pain education intervention directed towards increasing her function and treating her unhelpful beliefs regarding her condition and recovery".

The program recommended by Mr Brentnall led to a further Axis report being prepared on 14 March 2016. Mr Brentnall's scepticism was confirmed in part when the treating physiotherapist was able to quickly achieve increases in the appellant's shoulder range of movement which was said to illustrate that it was more likely that the appellant's "limitation in movement was primarily related to fear of movement and self-limiting behaviour rather than any significant structural cause".

In the psychological component of the Axis program, the appellant reported that her injuries and subsequent pain had negatively impacted all aspects of her day to day functioning, including her social life, relationships with family members, standing in the community and activities of daily living. The report identified a number of factors contributing to the appellant's psychological functioning including a limited understanding of pain which was increasing distress and negatively impacting coping. In this regard various techniques were employed including "psycho-education" around pain which involved an understanding of the pain process and "the way in which pain can persist beyond the remedial healing of the injury". In the report's recommendations it was noted that while the appellant appeared very motivated to return to work, she displayed substantial fear avoidance.

Dr Duke assessed the appellant on 13 April 2016 at the request of WorkCover. In his report, Dr Duke opined at paragraph 11 of his report that the appellant's depressive disorder was "not directly related to her shoulder injury but rather has arisen as a result of the loss of her work role and subsequent difficulty she has had in finding alternative employment". In his report, Dr Duke also identified stressors that were ongoing and which were perpetuating depressive symptoms, such as loss of face, financial situation, status within the community, self-stigma about mental illness, strained spousal relationship, poor sleep, low self-esteem and low self-confidence.
In terms of the appellant's failure to obtain an interpreting qualification, Dr Duke said that references to the matter were included in a number of briefing documents including a WorkCover communications report and the WorkCover letter of instruction. The letter of instruction had included the following paragraph (T2-61):

"Some issues may be cultural and personality based, however Fei presents as pain focused and pain avoidant despite a recent pain rehab program providing education on hurt versus harm. She has had quite extreme and tearful reactions to recent events such as not successfully passing a practice test with NAATI, and she’s keen on gaining accreditation in translating and interpreting."

The communications report included an entry about a phone call that the appellant had made to WorkCover on 24 March 2016. The entry which was read into the transcript (T2-58) disclosed that the appellant was very upset that the she had not passed the test and that the WorkCover officer had recommended that she talk to her psychologist, Mr Joubert, about the matter.

It was Dr Duke's evidence that the impression that he had formed from the appellant's history was that it was the loss of work role, rather than ongoing pain from her shoulder injury, that had caused the depression. His impression turned on statements made to him by the appellant to the effect that the day that she lost her job was the saddest day of her life and that despite her injury, she had been very happy to be working.

Dr Flanagan expressed a different opinion about causation. He concluded that the work injury and its sequelae were the major significant cause given that there was no past history of depression and an immediate prior history of high level functioning. The effect of his evidence was that there was a direct relationship between the appellant's depression and the shoulder injury because the shoulder injury gave rise to chronic pain and disability which were the factors which caused the depression. He also took the view that there was a direct relationship between the shoulder injury and the appellant's loss of job and difficulty in securing alternative employment.

In terms of the onset of depression, it was Dr Flanagan's evidence that both the appellant's injury and specified sequelae contributed to the depression. He said that the injury and the resultant pain and disability was the starting point, but that the loss of job, the inability to get another job, and the loss of self-respect were also contributing factors. The multi-factorial nature of the appellant's condition was apparent from the sequelae identified by Dr Flanagan:

-A syndrome of chronic pain and disability
-Loss of job
-Misunderstanding of WorkCover responsibilities and industrial protocols
-Financial exigency
-Inability to find alternate work
-Alienation from community, family and usual sources of gratification through shame and self stigma, with personality and cultural factors playing a major part in this phenomenon
-Legal action and search for reparation.

It was Dr Flanagan's evidence that it was generally accepted in the literature and in psychiatry that there was a very strong link between major depression and chronic pain. He said that depression in these circumstances would be imprinted with a preoccupation with pain and disability and with constant ruminations about how "they're not the same person they used to be …". It was his evidence that sleep deprivation was one of the "cardinal symptoms" of depression.

Dr Duke did not disagree. He said that there was a "high rate of concordance between chronic pain experience and depression". He agreed that the symptoms that the appellant presented with were symptoms that could be associated with chronic pain.

It was common ground between Dr Flanagan, Dr Duke, and some other practitioners that the loss of job, financial stress, and the WorkCover processes associated with the claim for incapacity payments and the claim for a secondary psychological injury were contributing or perpetuating factors.

Dr Flanagan said in his evidence that the appellant felt very bitter about WorkCover's decision to refuse to make incapacity payments. He agreed that the appellant felt this was an injustice and that the issue adversely impacted her psychological health. He said that the appellant told him that "she thought her situation couldn't be improved until the company apologised because they lied and WorkCover lied and until she found someone who could hire her for work and until her pain was gone and her shoulder was normal".

Mr Joubert said in his report that the appellant expressed "a lot of anger after her IME report and an e-mail from her case manager that her claim would be closed soon".

The appellant had expected that WorkCover would commence incapacity payments following her retrenchment. However, on 14 April 2015 WorkCover decided to deny incapacity payments. In her evidence (T1-77), the appellant agreed that she was upset by the decision and that she considered WorkCover's decision and the decision of the regulator upon review to amount to a form of injustice.

In terms of financial stress, the appellant had reported to the Recovre assessor (Exhibit 12) that she felt that she was a burden on her family "due to her inability to make a financial and practical contribution. She also reported increased financial stress due to instability with her husband's work. She told Dr Flanagan that the family investments could not be afforded because she did not earn an income.

In her evidence in the proceedings, while the appellant maintained that she wanted to get a job to enable her to contribute to the family income and assist with mortgage repayments, she denied that this was a significant stressor (T1-78):

"What do you say to the proposition the fact that you losing your job and your wage put you, your family, in financial difficulties, certainly in respect of three housing investments? What do you say to that?‑‑‑Who said that?
Well, I’m putting it to you. What do you say to that? Is that true or not?‑‑‑Affect a bit."

Mr Matheson denied that financial stress was an issue for the family, however he agreed that the appellant may have been affected by her failure to contribute (T2-15):
"What do you say to the proposition that her inability to find work – and hence not being able to make a financial contribution to the family – had a deleterious effect upon her?‑‑‑True."

Mr Joubert prepared his report at the request of WorkCover. He treated the appellant between 5 February 2016 and 27 May 2016. In his report, Mr Joubert opined that the appellant's "depressive symptoms only started after her injury, mainly as a result of the persistent pain and sleep deprivation. The symptoms had a direct link to the event and reminders of the event in terms of having to light duties and later being made redundant".

Mr Joubert also acknowledged the multi-factorial nature of the depression. He identified a number of stressors which had contributed to the development of the appellant's condition, and concluded that "experienced pain" was the principal stressor:
·The experienced pain of the injury
·The sleep deprivation and depressive symptoms impact on her family life
·Being made redundant whilst returning to work after her injury and other reported anomalies resulting in Ms Matheson not receiving a wage
·Being socially isolated, with fears of losing face to her family of origin and community

Mr Joubert concluded that ongoing pain was the fundamental cause of the appellant's depression. His explanation was given in the following terms (T2-21):
"So the experienced pain is the debilitating effect that Ms Matheson reported it had on her life. So that is from it disturbing her sleep, to just basic movements, getting dressed. She reported it impacted on her ability to perform her duties as a wife in her home. She reported it made a difficulty to interact with her child. That even basic grocery shopping was quite a substantial task. So the experienced pain, I believe, is one of the more significant stressors because of the impact in quality of life that it had for her."

In his report, Mr Joubert distinguished between factors which caused the depression as opposed to factors which maintained the depressive condition. He said that a number of factors maintained the appellant's psychological symptoms. He described these factors as “set backs”. In his report, Mr Joubert wrote that the appellant had been "set back in her progress firstly by the unsuccessful Interpretation Exam and secondly by the report of the Psychiatric IME".

The principal determination to be made on the evidence is about what stressor or stressors caused the onset of depression. While many factors contributed to the exacerbation or perpetuation of depression, the appeal turns on what caused the depression in the first instance. In this regard the respondent’s position is that the depression was caused by the loss of job in March 2015. The appellant on the other hand maintained that the depression developed over time as a consequence of pain and disability caused by the workplace injury, and that it was more likely than not that the depressive symptoms were evident prior to the redundancy. In this context while some exacerbating factors were unrelated to the workplace injury, other exacerbating factors may have been causally connected with the injury including the redundancy itself, the failure to secure alternative employment, and the failure of the injury to fully resolve. These circumstances raise for consideration whether the onset of depression should be associated with only one event or whether depression developed over time in response to a series of events or setbacks.

It was Dr Flanagan's evidence that depression related to pain generally develops over time (T1-67). He said that in the early stages of pain development, the pain is not treated as chronic and the individual is more concerned with the diagnosis, treatment and rehabilitation. He said that "it’s only after, you know some months of chronicity that depression usually starts to declare itself." The effect of his further evidence was that a significant event in terms of a chronological development of pain or depression was when it is established that the pain is unlikely to improve or unlikely to respond to any medical measures or is no longer treatable.

Dr Duke's evidence was consistent with this. He said that depression associated with chronic pain can present in different ways (T2-62:
"In some patients there is a gradual development of depressive symptoms over time. In some people there is a more acute onset of symptoms after particular events and time frames get past. For instance, so if somebody has surgery and it doesn’t improve their symptoms they’ll often rapidly develop depression as a result of that. They have surgery and don’t regain the level of function that they were hoping for then they can often develop depressive symptoms quite rapidly after that. They’ve been told things are going to get better in six months and they get to the six month or the twelve month mark and they’re still not better then – then their depressive symptoms, sort of, rapidly develop, then. Or, as I said, initially there can be a gradual, sort of, development of symptoms as a result of the ongoing nature of their unremitting pain experience."
I accept that it would not be inconsistent with the evidence for a finding to be entered in favour of either the appellant or the respondent. On the evidence of Dr Duke, Dr Flanagan and Mr Joubert, the loss of the UGL job was clearly a significant event for the appellant and could have given rise to an acute onset of depression. Similarly, the evidence is consistent with a conclusion that the appellant suffered a gradual onset of symptoms arising from which depression developed. In this regard, it is relevant that the direct consequences of the injury (pain and disability) were associated with most of the significant events that contributed to depression. These events include an impaired functioning at work and home before the redundancy, possibly the redundancy itself, the failure of physiotherapy to remedy the shoulder condition on a timely basis, the failure to get alternative employment, the less than optimum outcomes from medical treatment, and the general adverse impact on the activities of daily living.

In a context where all the witnesses called to give evidence in the proceedings, except Dr Duke, supported a conclusion that the appellants depression was causally connected to pain and disability suffered as a consequence of her injury at work on 29 September 2014, the outcome of the appeal will largely turn on whether Dr Duke’s evidence is to be preferred.

Dr Duke's Opinion

Dr Duke assessed the appellant on 13 April 2016 at the request of WorkCover. While Dr Duke acknowledged the association between depression, and pain and disability, he discounted pain and disability as a significant contributing factor in the appellant’s case. It was Dr Duke’s opinion that the major significant factor contributing to the depression was the impact on the appellant of the loss of employment with UGL.

It was the effect of the appellant’s submission that the conclusion reached by Dr Duke should not be relied on because Dr Duke’s reasoning was flawed in a number of respects and because Dr Duke had wrongly discounted pain and disability as a significant contributing factor.

[100]In his evidence in the proceedings (T2-50), Dr Duke said that his opinion was based on two different factors:

(a) The content of the supporting documentation supplied by WorkCover prior to the assessment and;
(b) The history provided by the appellant during the assessment.

[101]Dr Duke said that a number of factors emerged from his review of the documentation provided by WorkCover:

(a) There was "minimal mention of psychiatric issues until 2016 despite the date of injury being in September 2014"; and
(b) On the opinion of the treating psychologist at that stage that there was “no work-related psychiatric injury”, but rather the injury was due to “a range of other factors”.

[102]In terms of the history provided by the appellant, Dr Duke’s evidence was as follows (T2-50):

“All right. What about from the history?‑‑‑From the history, Ms Matheson – it says on page 2 of my handwritten notes there – indicated that the date that she was made redundant was:

‘… the saddest day of her life because of the loss of face associated with the loss of the work role’.

And that prior to that, she – this is again using her words:

She’d not been sad despite her injury and that she was very happy to still be working.

But the impression I had from Ms Matheson was that the loss of – taking that – those particular comments into account, was that it was the loss of the wok role rather than the nature of, and the ongoing pain from her shoulder injury, that were the primary cause of her depressive symptoms.”

[103]In terms of other contributing or perpetuating factors, Dr Duke said (T2-50):

The cessation of the entitlements?‑‑‑I think that was – when I made reference to subsequent events that contributed to the depression, that was one of the factors. The failure of the appeal was another factor. Her inability to obtain qualifications in the interpreting field that she was trying to retrain in was a further factor that contributed to, I quote:
‘…the development and the perpetuation of her depressive symptoms.’

Treating Psychologist

[104]In terms of the treating psychologist's opinion, Dr Duke said at page 5 of his report that "a psychologist has apparently reported that she is not suffering from a work related diagnosable psychiatric condition". In his evidence in the proceedings, Dr Duke said that this information had been included in the letter of instruction that he had received from WorkCover (T2-60). The letter of instruction which was dated 1 April 2016 stated that the:

"The previous psychologist initially advised he didn’t believe there was a diagnosable secondary psychological injury. Rather a lack of education on pain and the extent of physical injury."

[105]Dr Duke did not know the name of the treating psychologist and he agreed in his evidence that, other than the letter of instruction, he was unable to find anything else in the material before him that referenced the matter.

[106]WorkCover's characterisation of causation appeared to have been derived from a telephone conversation with Mr Joubert on 18 February 2016, but it may also have been informed by the content of the Axis reports. The first Axis report had been prepared by a physiotherapist on 17 February 2016, while a subsequent report, including an assessment by psychologist Sarah Walsh, had been prepared on 14 March 2016. Both the conversation with Mr Joubert and the first Axis report canvassed similar propositions dealing with perceptions of pain and fear avoidance hindering the shoulder rehabilitation.

[107]A record of the telephone conversation was entered into a WorkCover communication report (Exhibit 31) in the following terms:

"Worker has some adjustment symptoms, but it’s more of a lack of understanding of her injury and has been focused on negative perception for a long time now."

[108]It was Mr Joubert's evidence that he did not fully recall the detail of the conversation but, as I understood him, he accepted that an accurate summary of the phone call was included in a letter from WorkCover to the appellant on 26 April 2016. The relevant part of the correspondence was read into the evidence (T2-25):

"On 18 February WorkCover spoke to Daniel who advised whilst you were exhibiting some adjustment symptoms, he felt it was due to a lack of understanding of your physical injury and that referral to a psychiatrist was not necessary. He opinioned that cultural factors were also impacting your overall recovery and that you would benefit from some further counselling and interventions/assistance from an occupational therapist."

[109]The WorkCover advisor was not called to give evidence and Mr Joubert’s acknowledgement about the content of the letter sent to the appellant did not amount in my view to a definitive statement about the onset of depression and causation. It seems to me problematic that Dr Duke should have relied on the view passed on by WorkCover in forming his conclusion about what was the major significant contributing factor to the development of depression.

[110]If WorkCover was relying on the Axis physiotherapy report dated the day before the discussion with Mr Joubert, it would not have been correct for WorkCover to conclude that this report included a finding about what it was that caused the onset of depression. Mr Joubert’s view was said to be an initial view and Mr Joubert confirmed in his evidence that it was not a view that he held at the end of his consultations with the appellant.

[111]The preferable course would have been for Dr Duke to explore with the appellant the possibility that her descent into depression had been caused by a lack of understanding of her injury or by ineffective rehabilitation resulting from fear avoidance.

NAATI Test Failure

[112]Dr Duke stated in his report that the appellant's attendances on Mr Joubert appeared to "have been precipitated by worsening depressive symptoms in the context of failing tests that she had been doing in an attempt to become an accredited trainer".

[113]In this regard, Dr Duke was relying on the contents of a verbal and unsuccessful communications report dated 29 March 2016 which included an entry about a phone call that the appellant had made to WorkCover on 24 March 2016. The entry records the appellant's distress on receiving translation test results and discloses that, in response to her distress, WorkCover recommended that the appellant contact Mr Joubert.

[114]While the WorkCover report disclosed that the appellant was encouraged to get psychological help from Mr Joubert, at this point in time the appellant had already consulted Mr Joubert on a number of occasions and her first attendance had preceded the release of the NAATI results. Given this chronology, Dr Duke appropriately conceded in his evidence that it was not correct to say that the appellant's attendance on Mr Joubert was precipitated by worsening depressive symptoms caused by the NAATI test failure.

[115]It is not submitted by either side that the test failure caused the appellant’s depression, and not much may turn on the issue. I accept that, on the WorkCover record, the test failure caused distress and would have exacerbated any pre-existing depressive symptoms.
Minimal Mention of Psychiatric Issues

[116]A factor in Dr Duke’s consideration of the matter was his understanding that there had been minimal mention of psychiatric issues until 2016. His understanding was generally consistent with the facts established in the proceedings, with one exception. Brief references to the appellant’s stress or distress had been recorded in WorkCover communications reports in January and May 2015, and Dr Duke had noted in his report that Dr McGree had prescribed anti-depressants for the appellant. Dates were not mentioned but on the available chronology it appears that the appellant had tried anti-depressants at some time in 2015.

[117]The significant omission in Dr Duke’s understanding of the documentary record is the Recovre report dated 6 October 2015. This report was not prepared for the purpose of diagnosing or assessing psychological symptoms, but it can be relied on as a record of what the appellant said about her circumstances when interviewed. This history provides significant evidence of depressive symptoms and stressors. In terms of causation, the history supports a conclusion that causation was multi-factorial and that the effects of pain and disability were a significant stressor.

Pain as a Significant Contributing Factor

[118]While Dr Duke said that he was aware that the appellant had consistently reported symptoms of pain since her injury at work, and said that he accepted that that pain or disability may have been a factor contributing to depression, he nevertheless discounted pain and disability as a significant contributing factor. His explanation, however, for why he elected not to explore the subject with the appellant was not convincing (T2-68):
" … when I see somebody who has a chronic pain experience I tend not to put it in as a psychiatric diagnosis because there is a clear and explainable physical cause for the onset of the conditions, be it a back injury or a shoulder injury. So I don’t feel, given that I’m being asked simply to comment on the psychiatric component as opposed to the physical component – I don’t feel that it’s necessary to – for me to comment specifically on that, in terms of my diagnostic listing. I certainly take the pain experience into account when I formulate my diagnosis and determine my causation."

[119]As I follow Dr Duke’s reasoning, while he accepted that at the theoretical level, pain and disability could have caused the appellant’s depression, the history given to him by the appellant, and in particular, the appellant’s comments about the redundancy and her satisfaction with work prior to the redundancy, led him to discount pain and disability as a significant consideration and to identify the redundancy as the principal cause of depression.

[120]This conclusion was reached however without eliciting from the appellant any history about the effect on her psychological state of pain and disability. This omission was acknowledged by Dr Duke in his evidence at least in respect to the period between the date of injury and the date of the redundancy (T2-72):

"Right. But specifically, Doctor, there’s no detail though, is there, in your notes about any symptomology or any questioning of her prior to – between the injury date and the 11^th of March 2015. There’s no detailed symptomology, similar, of course, too, on page 3 of your notes?‑‑‑There’s no comparative list of symptoms for between September 2014 and March 2015. No."

[121]The possibility that Dr Duke may not have elicited a complete history from the appellant about the impact of pain and disability was emphasised on a reading of the Recovre report which canvassed a range of stressors including the redundancy, but more extensively reported on the association between the injury and its negative impact on the activities of daily living. Further, while I treat with caution the appellant’s reporting about causation to Axis in March 2016 (soon after she had lodged her workers’ compensation claim), it is relevant that the history that she provided to Axis was consistent with the history that she provided to Recovre some five months earlier. In circumstances where WorkCover had provided Dr Duke with a copy of both reports, there was ample material before him alerting him to the association between the appellant’s injury and her depression. Despite this, neither Dr Duke’s report nor his notes suggest that he put questions to the appellant designed to surface the extent to which she considered pain and disability to be causative of her depression.

[122]In circumstances where a formal diagnosis of depression was not entered until March 2016, and where it was accepted that the depression was associated with multiple stressors, it is not easy to conclude with any precision what was the date of onset of depression and what it was that caused the onset of depression. If pain and disability were the major significant contributing factor, the onset of depression may have occurred within a couple of months of the physical injury, or alternatively, the onset may have been delayed until later in the year when the appellant realised that her pain and disability may never fully resolve.
Appellant’s History

[123]In terms of the appellant's history, Dr Duke relied on comments made by the appellant:

(a) Describing the redundancy as the saddest day of her life because of the loss of face associated with the loss of the work role; and
(b) That she had not been sad despite her injury, and that she was very happy to still be working.

[124]The factual foundation for Dr Duke's opinions arising from these comments cannot be questioned. The reservation I have about Dr Duke's reasoning is that it is probable that he did not accurately comprehend the appellant’s circumstances when she reported to him that she was very happy working prior to her injury.

[125]Dr Duke's evidence was that after taking into account the appellant's comments he formed the impression that "it was the loss of the work role rather than the nature of, and the ongoing pain from her shoulder injury, that were the primary cause of her depressive symptoms" (T2-51).

[126]In making this choice, Dr Duke understandably contrasted a pre-redundancy context in which the appellant was happy to be employed and where there did not appear to be any issue with the appellant’s physical or psychological make-up, with a post-redundancy context where the appellant was shocked and dismayed to lose her job.

[127]It is true that the appellant was happy to continue to attend for work prior to the redundancy. The appellant's desire to work and the association between work and self-esteem was well established. Her desire to work prevailed over any pain or physical limitation. When her supervisor suggested in early 2015 that she should stay at home, the appellant actively resisted the proposition, and enlisted WorkCover to support her request that she be allowed to remain at work (WorkCover communication report dated 30 January 2015). According to the report, the appellant told WorkCover that she did not want to go home, that she "loves to work", and wanted to stay at work. In response, WorkCover told the appellant that they would discuss her wishes with UGL.

[128]In my view, with the benefit of reviewing all the evidence in the proceedings, it is more likely than not that the appellant in saying to Dr Duke that she had been very happy to be employed by UGL, was not conveying that she was pain free or was in a functional state in terms of the performance of normal work tasks. Any such misunderstanding may explain why Dr Duke did not elicit from the appellant any history relevant to pain and disability associated with the injury. The consequence of this omission meant that facts and circumstances pointing to the presence of pain and depressive symptoms prior to the redundancy were not taken into account.

[129]On the evidence in the proceedings, the following factual matrix provides objective support for a conclusion that pain and disability and depressive symptoms were significant factors in play prior to the redundancy:

(i)      The appellant's employment on light duties after the injury did not facilitate an improvement in her capacity for work, but rather the opposite to the extent that in the lead up to her redundancy she was incapable of performing most tasks and was directed to stay in the crib hut for most of the day;
(ii)     A suggestion or request by the appellant's supervisor to the effect that she stay at home provoked the appellant to prevail on WorkCover to intercede on her behalf with her employer and ask the employer to allow the appellant to remain at work;
(iii)   Persistent pain and disability, a failure to contribute at work, and the risk that her condition might end her employment are factors which when viewed through the relevant cultural prism, were indicative of the development or potential development of depressive symptoms;
(iv)   Both the appellant and Michael Matheson maintained that depressive symptoms were evident before the redundancy and that these symptoms were attributable to pain and disability. Michael Matheson said that he observed some deterioration in the appellant's manner or her psyche about four to six weeks after she was injured at work. He noticed sleep disruption a month after the injury. He said (T2-8) that from this time the appellant was withdrawn and irritable and no longer a socially forward and confident person.

Decision

[130]I am satisfied that there was an association between the development of the appellant’s depression and the pain and disability which were consequences of the physical injury. I am also satisfied that the appellant did experience, to some degree or other, a level of both physical and psychological distress before she was made redundant. Her pain had not resolved, her physical capacity was significantly reduced and on an uncertain trajectory in terms of improvement, and her usefulness to her employer had diminished to the extent that for some weeks prior to her redundancy the appellant was assigned to insignificant duties in the crib hut and was informed by her supervisor that she would be better off at home. I accept that the appellant would have experienced sleep deprivation, and that poor sleep and a long work day in conjunction with unresolved pain, and an inability to complete the day to day functions of life, made it more likely than not that depressive symptoms were present.

[131]I prefer the medical evidence led by the appellant. While I accept that a prima facie conclusion may have been available to Dr Duke to the effect that the redundancy was potentially the major of the depression, in a multi-factorial context where pain and disability were clearly enduring factors, Dr Duke was required to elicit a history which facilitated consideration of all the significant contributing factors in terms of causation, and, in particular, to ensure that complete consideration was given to the association between pain and disability and the development or onset of depression. While Dr Duke acknowledged this association at a theoretical level, he did not consider the association before the redundancy and generally discounted it as a relevant factor after the redundancy.

[132]Other considerations point to a conclusion not to prefer the evidence of Dr Duke. In the first instance, there is a significant doubt about the factual foundation for the view that an earlier finding had been made by a psychologist to the effect that the injury was not work-related. Secondly, I think had Dr Duke surfaced a detailed consideration of the appellant’s history before the redundancy, he may have taken a more nuanced view of the appellant’s reporting about the event and acknowledged the multi-dimensional nature of the appellant’s circumstances.

Orders
[133]The appeal is allowed. The decision of the regulator dated 19 October 2016 is set aside and the appellant's application for compensation deemed to be one for acceptance. The matter of costs is reserved.

[2017] QIRC 104

29 November 2017 25 and 26 September 2017