Milevska and Comcare (Compensation)

Milevska and Comcare (Compensation) [2018] AATA 2141 (6 July 2018)
Division:GENERAL DIVISION
File Numbers: 2017/0853
2017/2363

Re:Tranda Milevska
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Senior Member Dr M Evans
Date:6 July 2018
Place:Perth

The Reviewable Physical Injury Decision dated 8 February 2017 (2017/0853) is affirmed.
The Tribunal sets aside the Reviewable Psychological Injury Decision (2017/2363) dated 11 April 2017, and in substitution finds that the Applicant continued to suffer from the Psychological Injury, and that liability should be accepted for:
(a)reasonable medical expenses under s 16 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) from 23 November 2016; and
(b)incapacity payments under s 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) from 12 February 2016.
........[sgd]................................................................
Senior Member Dr M Evans
CATCHWORDS
WORKERS’ COMPENSATION – Commonwealth Employee – physical injury – aggravation or new injury – psychological injury – adjustment disorder – post-traumatic stress disorder – whether a psychological injury is a disease or an injury other than a disease – soft tissue injury to neck and upper spine – Applicant trapped in a lift (elevator) in workplace – entitlement to compensation – entitlement to medical treatment and/or incapacity payments – whether Tribunal can alter description of injury or disease in s 14 determination – whether employment still a contributing factor to the Applicant’s injury – physical injury decision affirmed – psychological injury decision set aside
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth), s 25(1), s 29(2), 33(1)(c)
Compensation (Commonwealth Government Employees) Act 1971 (Cth)
Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007 (Cth)
Safety, Rehabilitation and Compensation Act 1988 (Cth), s 4, 5A(1), s 5B(1), s 5B(2), s 5B(3), s 14(1), s 16(1), s 19(1), s 19(2), s 38(4), s 60(1), s 62, s 62(4), s 62(5), s 64(1), s 65(4)
CASES
Australian Telecommunications Commission v Tzikas (1985) 5 AAR 173
Men Soon Chu Yu Chee and Comcare [2018] AATA 1241
Comcare v Reardon [2015] FCA 1166
Comcare v Power (2015) 238 FCR 187; [2015] FCA 1502
May v Military Rehabilitation and Compensation Commission (2015) 233 FCR 397
Milevska and Comcare [2017] AATA 1177
Military Rehabilitation and Compensation Commission v May (2016) 331 ALR 369
Perich and Secretary, Department of Social Services [2018] AATA 963
Pollock v Wellington (1996) 15 WAR 1
Pownall v Conlan Management Pty Ltd (1995) 12 WAR 370
Prain v Comcare [2016] AATA 459
Prain v Comcare [2017] FCAFC 143
Re von Stieglitz and Comcare [2010] AATA 263
Reardon and Comcare [2015] AATA 360
Telstra Corporation Ltd v Hannaford (2006) 151 FCR 253
SECONDARY MATERIALS
American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, (5^th ed, American Psychiatric Association DSM-5 Task Force, 2013)
Freckelton I and Selby H, Expert Evidence: Law Practice, Procedure and Advocacy (5^th ed Thomson Reuters Lawbook Co, 2013)
REASONS FOR DECISION
Senior Member Dr M Evans
6 July 2018
THE APPLICATIONS
On 21 January 2016, the Applicant, who was employed as a Compliance Officer by the Department of Human Services, suffered injuries after a lift she entered on the third (top) floor of her building dropped.
The Applicant was subsequently trapped in the lift for approximately one hour until she was released by a lift technician (Exhibit R1, T3, page 17). The lift technician determined that the lift had stopped one metre below the top floor (Exhibit R1, T3, page 24).
The dropping of the lift, and the Applicant subsequently being trapped in the lift, will be referred to in this decision as “the lift incident”. Evidence concerning the lift incident is discussed in further detail under a separate heading below.
The Applicant has worked for the Department of Human Services since 1982. At the time of the lift incident she was nearing completion of a graduated return to work program after having surgery for carpal tunnel syndrome in September 2015 on her right wrist. During the week in which the lift incident occurred, she had progressed to working a 32 hour week, and was due to progress to work a normal workload of 35 hours per week in the following week.
The carpal tunnel surgery was the result of a wrist injury which was the subject of a previous workers’ compensation claim made by the Applicant in June 2015. This claim also included injuries to her right elbow and shoulder. These were the subject of previous proceedings before the Administrative Appeals Tribunal (Tribunal) in Milevska and Comcare [2017] AATA 1177 in which the Tribunal held that the Respondent was liable to pay compensation under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act) to the Applicant for her wrist injury, but not for the injuries to her right elbow and shoulder.
There are two separate but related applications currently before this Tribunal arising from the lift incident: a physical injury (2017/0853) and a psychological injury (2017/2363).
The Applicant first sought medical treatment for her physical injuries on 22 January 2016 (Exhibit R1, T3, page 13), when her General Practitioner, Dr Ngie Sik Wong (Dr Wong), completed a Workers’ Compensation First Medical Certificate. In this First Medical Certificate he certified the Applicant unfit for work from 22 January 2016 to 29 January 2016, with the description of the injury stated as “sore neck, right shoulder & back” (Exhibit R1, T3, page 13).
The Applicant first sought treatment for psychological injuries on 12 February 2016, with the progress medical injury signed by Dr Wong stating, “sore neck, right shoulder and lower back still from injuries sustained by the lift dropping suddenly down 1 storey. She has become anxiety (sic) & depressed from the injuries” (Exhibit R1, T3, page 16).
On 11 February 2016, the Applicant made a claim for workers’ compensation for “soft tissue injuries, anxiety, stress, nausea, headaches” (Workers’ Compensation Claim form signed by the Applicant on 11 February 2016, Exhibit R1, T3, page 11). The Workers’ Compensation Claim form was completed by the Applicant’s employer on 22 February 2016, and sent to Comcare under the cover of a letter dated 25 February 2016 (Exhibit R1, T3, page 6).
On 28 April 2016, a delegate of the Respondent determined that the Respondent was liable to pay compensation to the Applicant under s 14(1) of the SRC Act for the physical injury of “aggravation of soft tissue injury to neck and upper spine” for the period commencing 21 January 2016 until 26 April 2016. This included incapacity payments under s 19(2) of the SRC Act and the cost of reasonable medical treatment in relation to the physical injury (Exhibit R1, T16, page 230).
The Applicant unsuccessfully attempted a return to work program for two weeks in June 2016.
A delegate of the Respondent made a decision to extend the Respondent’s liability to pay compensation for reasonable medical treatment for the physical injuries under s 16 of the SRC Act to 29 July 2016 (Exhibit R1, T30, page 279). This date was further extended to 10 November 2016 by virtue of a decision of a delegate of the Respondent dated 25 October 2016 (Exhibit R1, T47, page 339).
In a letter dated 4 July 2016, the Applicant’s solicitor wrote to the Department of Human Services, enclosing a copy of the Applicant’s claim for workers’ compensation and requesting a determination in relation to her entitlement to compensation for the psychological injury (Exhibit R2, T12, page 122).
The Applicant’s solicitor made a further request for the Applicant’s claim for the psychological injury to be determined in a letter to Allianz (a delegate of the Respondent) dated 8 August 2016 (Exhibit R2, T15, page 149).
In a letter to the Applicant dated 10 October 2016 with the subject heading “Intent to Cease Entitlement…”, Allianz enclosed a draft claim assessment report for the Applicant to review, which concluded that she should be issued with a notice of intent to deny present entitlements to s 16 of the SRC Act for medical treatment and s 19 of the SRC Act for incapacity payments for the physical injury (Exhibit R1, T45, page 330 and 333). In this letter the Applicant was asked to respond by 11 November 2016, which was later extended to 11 December 2016 (Exhibit R1, T57, page 369).
On 18 January 2017 a delegate of the Respondent determined that the Applicant had no present entitlement to compensation under s 16 and s 19 of the SRC Act for the physical injury (Exhibit R1, T69, page 441) on the basis that she “no longer suffers from the condition for which liability was accepted” (Exhibit R1, T69, page 445). The Applicant’s solicitors requested a reconsideration of this determination in a letter dated 24 January 2017 (Exhibit R1, T71, page 450). However, on 8 February 2017, a delegate of the Respondent affirmed the determination of 18 January 2017 under s 62(5) of the SRC Act (Exhibit R1, T75) (Reviewable Physical Injury Decision).
On 14 February 2017, a delegate of the Respondent made a determination regarding the psychological injury. This was that the Respondent was liable to pay compensation under s 14(1) of the SRC Act for “adjustment disorder with mixed anxiety and depressed mood” for reasonable medical treatment under s 16 of the SRC Act. Liability was accepted from the date of the injury, 12 February 2016, until 22 November 2016. The determination further stated that the Applicant had no entitlement to compensation for incapacity benefits under s 19 of the SRC Act from 12 February 2016 (Exhibit R2, T22, pages 224-225).
On 16 February 2017 the Applicant lodged an application with the Tribunal for a review of the Reviewable Physical Injury Decision (2017/0853; Exhibit R1, T1).
The Applicant’s solicitors requested a reconsideration of the determination regarding the psychological injury in a letter dated 10 March 2017 (Exhibit R2, T24, page 230). However, on 11 April 2017, a delegate of the Respondent affirmed the determination of 14 February 2017 under s 62(5) of the SRC Act (Exhibit R2, T30, page 253) (Reviewable Psychological Injury Decision).
On 21 April 2017 the Applicant lodged an application with the Tribunal for a review of the Reviewable Psychological Injury Decision (2017/2363; Exhibit R2, T1).
JURISDICTION
The jurisdiction of the Tribunal is established by s 25(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act), which states:
(1) An enactment may provide that applications may be made to the Tribunal:
(a) for review of decisions made in the exercise of powers conferred by that enactment; or
(b) for the review of decisions made in the exercise of powers conferred, or that may be conferred, by another enactment having effect under that enactment.
In summary, s 25(1) of the AAT Act states that the jurisdiction of the Tribunal is given to it by other “enactments”, which grant it jurisdiction to review certain decisions made under those enactments. In this case, the relevant “enactment” is s 64(1) of the SRC Act which provides that:
(1) Application to the Administrative Appeals Tribunal for review of a reviewable decision may be made by:
(a) the claimant; or
(b) if the decision affects the Commonwealth—the Commonwealth; or
(c) if the decision affects a Commonwealth authority—the Commonwealth authority; or
(d) if the decision affects a corporation that holds a licence under Part VIII—the licensed corporation.
A “reviewable decision” is defined in s 60(1) of the SRC Act as, “a decision made under subsection 38(4) or section 62”.
Section 62 of the SRC Act provides that:
62. Reconsideration of determinations
(1)A determining authority may, on its own motion:
(a)reconsider a determination made by it; or
(b)cause such a determination to be reconsidered by a person to whom its power under this section is delegated, being a person other than the person who made, or was involved in the making of, the determination;
whether or not a proceeding has been instituted or completed under this Part in respect of a reviewable decision made in relation to that determination.
(2)A request to a determining authority to reconsider a determination made by it may be made by:
(a)the claimant; or
(b)if the determination affects the Commonwealth—the Commonwealth; or
(c)if the determination affects a Commonwealth authority—that Commonwealth authority…
(4) On receipt of a request, the determining authority shall reconsider the determination or cause the determination to be reconsidered by a person to whom its power under this section is delegated, being a person other than a person who made, or was involved in the making of, the determination.
(5)Where a person reconsiders a determination, the person may make a decision affirming or revoking the determination or varying the determination in such manner as the person thinks fit.
As the Reviewable Decisions of 8 February 2017 (Reviewable Physical Injury Decision) and 11 April 2017 (Reviewable Psychological Injury Decision) were made under s 62(5) of the SRC Act, following the reconsideration of the determinations under s 62(4) of the SRC Act, the Tribunal has jurisdiction to review both Reviewable Decisions.
Section 29(2) of the AAT Act provides:
(2) Subject to subsection (3), the prescribed time for the purposes of paragraph (1)(d) is the period commencing on the day on which the decision is made and ending on the twenty‑eighth day after:
(a) if the decision sets out the findings on material questions of fact and the reasons for the decision—the day on which a document setting out the terms of the decision is given to the applicant…
Section 65(4) of the SRC Act modifies s 29(2) of the AAT Act as follows: “Subsection 29(2) of the Act has effect as if the reference to ‘the twenty‑eighth day’ (first occurring) were a reference to ‘the sixtieth day’”.
The Applicant lodged applications with the Administrative Appeals Tribunal for review of the Reviewable Physical Injury Decision on 16 February 2017; and for review of the Reviewable Psychological Injury Decision on 21 April 2017. Therefore the Applicant was within the sixty-day prescribed time for applying to the Tribunal for a review of both decisions (s 29(2) AAT Act; s 65(4) SRC Act).
ISSUES FOR DETERMINATION
The issues for determination by the Tribunal are common for both the Physical Injury Decision (2017/0853) and the Psychological Injury Decision (2017/2363).
The Applicant stated the issues as follows in its Statement of Facts, Issues and Contentions (Exhibit A2):
1. As to 2017/0853, whether the Applicant had recovered from her physical injuries as at 18 January 2017 and whether liability should continue to be accepted for the physical injuries; and
2. As to 2017/2363, whether the Applicant’s psychological condition continues to relate to the incident of 21 January 2016 and whether liability should be accepted for incapacity payments from 27 April 2017, and also whether liability should be accepted for medical treatment for those injuries from 23 November 2016 onwards.
The Respondent stated that the issues were as follows in its Statement of Facts, Issues and Contentions (Exhibit R4):
4. In respect of both 2017/0853 and 2017/2363, the respondent considers that the issues for the Tribunal to determine are common, namely:
4.1whether the applicant has continued to suffer, and is presently suffering from the effects of the accepted physical injury and accepted psychological injury.
4.2if the Tribunal was to determine that their effects had not yet ceased and continue, the consequential issues will be whether the respondent has continued, and is presently liable to pay compensation to the applicant for reasonable medical expenses and incapacity under ss 16 and 19 of the SRC Act in relation to each of those injuries.
The Respondent’s reference to “is presently suffering from” appears to refer to the present point in time, specifically the time of the hearing. However, the Reviewable Decisions before the Tribunal contain the relevant dates, and the Tribunal should not go beyond those.
Consequently, the Tribunal adopts the Applicant’s statement of the issues as the most accurate description, with a minor correction as to the date of the incapacity payments, which should be 12 February 2016 for the Psychological Injury, and not 27 April 2017 (see Reconsideration of determination dated 11 April 2017, Exhibit R2, T30, page 253, for relevant dates).
At the Tribunal hearing, counsel for the Applicant and the Respondent agreed that the Tribunal did not need to re-consider whether liability had been correctly accepted under s 14 of the SRC Act for both the physical injury and the psychological injury in the first place (Telstra Corporation Ltd v Hannaford (2006) 151 FCR 253 (Hannaford)). The Tribunal agrees that it is appropriate to proceed on that basis.
Counsel for the Applicant, Mr Bruns, also raised as an issue at the hearing whether the Tribunal could alter the description of the injuries accepted by the Respondent under s 14(1) of the SRC Act in its determination of 28 April 2016 (Exhibit R1, T16, page 230). This was primarily with respect to the use of the word “aggravation” in the physical injury, which Mr Bruns submitted, was incorrect because there was no pre-existing injury to the Applicant’s “neck and upper spine”, which the description “aggravation of soft tissue injury to neck and upper spine” suggested. Similarly, the Tribunal notes that the Applicant was initially diagnosed with “adjustment disorder with mixed anxiety and depressed mood” (which was the description in the Reviewable Psychological Injury Decision) but there was a subsequent different diagnosis of “post-traumatic stress disorder”.
It is open to the Tribunal “…to make a finding of fact which was inconsistent with an earlier s 14 determination…” (Conti J in Hannaford at [46]), which could include describing an injury differently. Consequently, the Tribunal may consider whether to amend the description of the physical injuries to remove “aggravation” (with reference to Mortimer J in Comcare v Reardon [2015] FCA 1166) and the preferable description for the psychological injury, after a consideration of the medical evidence below.
LEGISLATIVE FRAMEWORK
Comcare’s liability to pay compensation is provided for in s 14(1) of the SRC Act:
14. Compensation for injuries
(1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
With respect to the payment of medical expenses, s 16(1) of the SRC Act states:
16. Compensation in respect of medical expenses etc
(1) Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.
With respect to compensation for weekly earnings if an employee is incapacitated for work, s 19 of the SRC Act states:
19. Compensation for injuries resulting in incapacity
(1) This section applies to an employee who is incapacitated for work as a result of an injury, other than an employee to whom section 20, 21, 21A or 22 applies.
(2) Subject to this Part, Comcare is liable to pay to the employee in respect of the injury, for each week that is a maximum rate compensation week during which the employee is incapacitated, an amount of compensation worked out using the formula…
An “injury” is defined in s 5A(1) of the SRC Act as follows:
(1) In this Act:
injury means:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.

Section 5B of the SRC Act defines a “disease” as follows:
(1) In this Act:
disease means:
(a) an ailment suffered by an employee; or
(b) an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.
(2) In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:
(a) the duration of the employment;
(b) the nature of, and particular tasks involved in, the employment;
(c) any predisposition of the employee to the ailment or aggravation;
(d) any activities of the employee not related to the employment;
(e) any other matters affecting the employee’s health.
This subsection does not limit the matters that may be taken into account.
(3) In this Act:
significant degree means a degree that is substantially more than material.
Section 4 of the SRC Act defines “ailment” as, “…any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)”.
WAS THE APPLICANT’S PHYSICAL INJURY A “DISEASE” OR AN “INJURY (OTHER THAN A DISEASE)”?
Counsel for the Applicant and Respondent both submitted that the physical injury was an “injury simpliciter” – that is, “an injury (other than a disease)” pursuant to s 5A(1) of the SRC Act.
The Tribunal notes that in Military Rehabilitation and Compensation Commission v May (2016) 331 ALR 369 (May), French CJ, Kiefel, Nettle and Gordon JJ, in a joint judgment, cited the following passage from May v Military Rehabilitation and Compensation Commission (2015) 233 FCR 397 at paragraph 57 with approval:
The Full Court concluded that the inquiry demanded by the statutory definition of “injury” was, “whether the person has experienced a physiological change or disturbance of the normal physiological state (physical or mental) that can be said to be an alteration from the functioning of a healthy body or mind.”
[Emphasis in original]
The Tribunal agrees that the physical injuries of the Applicant from the lift incident amount to an injury simpliciter. Soft tissue injuries suffered by the Applicant after the lift incident would amount to “a physiological change or disturbance of the normal physiological state”.
The physical injuries must arise out of, or in the course of, the Applicant’s employment (under both s 5A(1)(b) and (c) of the SRC Act). In May, French CJ, Kiefel, Nettle and Gordon JJ stated (at 379) that, “…the physical or mental injury has to have a causal or temporal connection with the employee’s employment”. In this case there was a causal or temporal connection with the Applicant’s employment because the Applicant suffered the physical injuries at her workplace during a work day while she was using the lift.
WAS THE APPLICANT’S PSYCHOLOGICAL INJURY A “DISEASE” OR AN “INJURY (OTHER THAN A DISEASE)”?
It was submitted by the Respondent’s counsel that the psychological injury was a “disease suffered by an employee” pursuant to s 5A(1)(a) of the SRC Act. The definition of “disease” is set out in s 5B(1)(a) of the SRC Act to include an “ailment suffered by an employee…”. As noted above an “ailment” is defined in s 4 to include “any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)”. Whether a psychiatric condition was an injury simpliciter or a disease was discussed by the Full Court of the Federal Court in Prain v Comcare [2017] FCAFC 143 (Prain). The Full Court commented (at [74]) that “…whether or not a mental illness is to be categorised as a ‘disease’ or, alternatively, an ‘injury (other than a disease)’ will depend on the nature and incidents of the psychological change.” Therefore, although psychological injuries are often categorised as a “disease” by the Tribunal and the courts (see Prain at [71]), the Tribunal should consider the facts and circumstances of each individual case to reach a decision as to which category a psychological injury falls into.
In Prain, the Full Court of the Federal Court found that it was open to the Tribunal to find that an adjustment disorder was a disease. The Tribunal had found that the Applicant’s adjustment disorder was a disease because the medical and psychological evidence “could not identify any sudden ascertainable or dramatic physiological change or disturbance” (at [52]), and rather, as the Full Court explained (at [76]):
…her psychological condition was ‘the outcome of a slow build-up of hurt and resentment rather than of a climatic episode’, being a circumstance that, in its opinion as expressed at [42], supported a finding of disease and not a finding of injury in the primary sense. This approach was, we have seen, consistent with Compensation Commission v May…
The Tribunal also notes the analysis of whether a psychological injury was suffered – in that case, an adjustment disorder – was undertaken by Senior Member Professor RM Creyke and Member Dr M Miller in Re von Stieglitz and Comcare [2010] AATA 263 (von Stieglitz) who stated in their reasons for decision (at [28]-[30]):
28. The Tribunal finds, given the elaborate definitions of ‘injury’, ‘disease’ and ‘ailment’ in the Act, and the legislature’s indication of the need to differentiate between these definitions, that a ‘mental injury’ requires some form of sudden or identifiable physiological change. It is not enough that there be an ‘external stimuli’. There must be ‘some sudden [or identifiable] change to the underlying pathophysiology’.
29. Applying these principles to the facts also requires taking into account of the description of ‘adjustment disorder’ within the Diagnostic and Statistical Manual of Mental Disorders (DSM IV). DSM IV says:
The essential feature of an Adjustment Disorder is a psychological response to an identifiable stressor or stressors that results in the development of clinically significant emotional or behavioural symptoms … The clinical significance of the reaction is indicated either by marked distress that is in excess of what would be expected given the nature of the stressor or by significant impairment in social or occupational (academic) functioning.
30. The requirement for observable pathology was not taken into account in the contention by counsel for Ms von Stieglitz that an adjustment disorder falls within the definition of a ‘mental injury’. The description of an adjustment disorder in DSM IV indicates that there is no requirement that the disorder either produces or is due to any sudden or identifiable physiological change. Nor was there evidence of any such change in the symptoms described by Ms von Stieglitz or the medical experts who provided evidence on her condition. For these reasons, the Tribunal finds that an adjustment disorder falls within the meaning of ‘disease’ not ‘mental injury’.
The current version of the Diagnostic and Statistical Manual of Mental Disorders is the DSM-5 (American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, 5^th edition DSM-5, 2013). The wording of the diagnostic features of adjustment disorder was amended subsequent to von Stieglitz. The current DSM-5 states, “The presence of emotional or behavioral symptoms in response to an identifiable stressor is the essential feature of adjustment disorders (American spelling retained)” (at page 287). Thus, there is still no reference to “any sudden or identifiable physiological change”. Similar comments can be made regarding, post-traumatic stress disorder (PTSD). The DSM-5 (page 274) provides:
The essential features of posttraumatic stress disorder (PTSD) is the development of characteristic symptoms following exposure to one or more traumatic events…The clinical presentation of PTSD varies. In some individuals, fear-based re-experiencing, emotional, and behavioral symptoms may predominate. In others, anhedonic or dysphoric mood states and negative cognitions may be most distressing. In some other individuals, arousal and reactive-externalizing symptoms are prominent, while in others, dissociative symptoms predominate…
(American spelling retained)
The Applicant’s psychological injury – and whether she continued to suffer from it - will be discussed in further detail below, including whether it is more accurately described as an adjustment disorder or PTSD. However, either diagnosis would fall within the definition of a “disease” within the meaning of s 5A(1)(a) and s 5B(1)(a) of the SRC Act because the Applicant’s reported symptoms – including stress, anxiety, fear of lifts, and associated depression and anxiety, as described in the relevant medical evidence - were of an emotional and behavioural kind, rather than as the result of any physiological change.
Thus, the Applicant’s psychological injury, being a disease, must be contributed to, to a significant degree (that is, substantially more than material – see s 5B(3) of the SRC Act), by her employment (s 5B(1) of the SRC Act). Further, with respect to the issue of whether the Applicant continued to suffer from the psychological injury, the injury must continue to be contributed to, to a significant degree, by her employment. This requires a stronger causal connection between her employment and the ailment (Australian Postal Corporation v Burch (1998) 156 ALR 483 at 486).
In Men Soon Chu Yu Chee and Comcare [2018] AATA 1241, Deputy President S Boyle and Senior Member Dr M Evans summarised the relevant legal principles regarding whether an injury is contributed to, to a significant degree by employment as follows (at [77]-[81]):
77. It was noted by Mortimer J in Comcare v Reardon (2015) 148 ALD 356; [2015] FCA 1166 at [75] that, “...the question of causation, contribution or aggravation by employment for the purposes of the definition of ‘disease’ is...a determination for the merits reviewer on the evidence and material before it”.
78. In Comcare v Power (2015) 238 FCR 187 [2015] FCA 1502 (Power), Katzmann J discussed the meaning of “to a significant degree” in s 5B(2) of the SRC Act, which is defined in s 5B(3) of the SRC Act as “a degree that is substantially more than material”. Her Honour stated at [78], “[a] contribution to a degree that is substantially more than material must necessarily be substantially greater than one which is trivial”, and further at [82] that, “...a material contribution is one which is greater than minimal or, one might say, trivial”.
79. In Power Katzmann J considered the previous Compensation (Commonwealth Government Employees) Act 1971 (Cth) which required employment to be “a contributing factor to the disease”. The current definition in s 5B of the SRC Act which requires the employment to have contributed “to a significant degree” and was inserted by the Safety, Rehabilitation and Compensation and other Legislation Amendment Act 2007 (Cth). After discussing this amendment, Her Honour stated at [93] that:
There is no room for doubt that the purpose of the 2007 amendments was to strengthen the connection necessary between the employment and the contraction or aggravation of a disease. Including a definition of “significant” as “substantially more than material” makes this abundantly clear. In other words, it is insufficient that the contribution of the employment be “more than trivial”; it had to be substantially more than trivial.
80. In Reardon and Comcare [2015] AATA 360 at [37] Member Taglieri summarised the meaning of “contribution to a significant degree” as follows:
I must be satisfied on the balance of probabilities, that contribution by employment was to a significant degree and it ought not be left in the area of possibility or conjecture. Further, whether employment contributed to a significant degree, is a question of fact to be determined by the Tribunal in each case.
81. Member Taglieri also outlined the matters which must be taken into account by the Tribunal when undertaking this evaluation, as well as determining causation when there are several contributing factors to the disease at [36]:
In Su v Comcare the requirement of contribution to a significant degree was expressed as follows, when approving of Justice Finn’s approach to interpretation in Comcare v Sahu-Kahn:
“When determining whether any contribution of the employment is of ‘a significant degree’, matters that may be taken into account are set out in section 5B(2). The assessment of causal factors that contribute to a disease is not simply relativistic. The threshold question for the purposes of the Act is whether the employment contributes to ‘a significant degree’ ‘that is substantially more than material’. This is the “evaluative threshold below which a causal connection may be disregarded”. If the contribution is to a significant degree, it is beside the point that one factor contributes to a greater extent than another. Nor does it matter that factors outside the frame of employment also contribute to a significant degree. The Act does not require employment to be the sole, proximate or dominant cause of an injury.” (Footnotes have been omitted).
Whether the Applicant continued to suffer from the psychological injury, and whether the injury continued to be contributed to, to a significant degree by her employment, will be discussed below in the discussion of Dr O’Daly’s evidence (at paras 199-202 of these reasons), and in the section titled, “Conclusions Regarding Psychological Injury”.
MATERIAL BEFORE THE TRIBUNAL
The application was heard by the Tribunal over five days from 30 April 2018 to 4 May 2018. Mr Bruns appeared as counsel for the Applicant, and was instructed by Ms Dempster and Mr McCormack of JDK Legal Services. Ms Dowsett appeared as legal counsel for the Respondent, and was instructed by Ms Ladhams from the Australian Government Solicitor.
The following witnesses were called by the Applicant, and gave evidence to the Tribunal at the hearing:
(a)the Applicant;
(b)Dr Wong, the Applicant’s General Practitioner;
(c)Mr John David Liddell, neurological surgeon;
(d)Dr Frederick Ng, the Applicant’s Psychiatrist; and
(e)Dr John Ker, Rehabilitation Physician.
The following medical witnesses were called by the Respondent, and also gave evidence to the Tribunal at the hearing:
(a)Dr Paul Psaila-Savona, Consultant Occupational Physician;
(b)Dr Eugen Mattes, Consultant Occupational Physician and Epidemiologist;
(c)Dr Mary Wyatt, Consultant Occupational Physician (by telephone);
(d)Dr Kevin O’Daly, Consultant Psychiatrist;
(e)Dr Sandra Gongora, Occupational Physician; and
(f)Dr Wasim Shaikh, Psychiatrist (by telephone).
The following documents were before the Tribunal, having been submitted to the Tribunal by the Applicant:
(a)the witness statement of the Applicant dated 20 July 2017 (Exhibit A1);
(b)the Applicant’s Statement of Facts, Issues and Contentions dated 19 January 2018 (Exhibit A2);
(c)the Applicant’s Supplementary Submissions filed with the Tribunal on 9 March 2018 (Exhibit A3);
(d)Medical Report of Dr Frederick Kit Foong Ng (Dr Ng) dated 20 November 2017 (Exhibit A4);
(e)letter from Dr Jack Edelman to Dr Wong dated 29 February 2016 (Exhibit A5);
(f)Medical Report of Dr John Ker dated 30 June 2016 (Exhibit A6);
(g)Medical Report from Dr John Ker to Dr Wong dated 18 September 2017 (Exhibit A7);
(h)five medical certificates for the Applicant from Dr George Atartis for the periods 30 June 2017 to 31 July 2017; 1 August 2017 to 31 August 2017; 1 September 2017 to 15 October 2017; 15 October 2017 to 31 December 2017; and 1 March 2018 to 1 May 2018. Additionally, there is a further medical certificate for the Applicant from Dr George Atartis dated 6 December 2017 for the period 1 January 2018 to 28 February 2018 (Exhibit A8);
(i)Medical Report of Dr John Ker dated 3 April 2018 (Exhibit A9);
(j)Curriculum Vitae of Dr Ng dated May 2018 (Exhibit A10);
(k)Medical Report from Dr Paul Psaila-Savona dated 29 July 2015 (Exhibit A11);
(l)letter to Dr John Ker (from the Applicant’s former solicitors) Dwyer Durack Lawyers dated 4 May 2016 (Exhibit A12); and
(m)briefing letter to Dr John Ker from JDK Legal dated 17 November 2016 (Exhibit A13).
The following documents were before the Tribunal, having been submitted to the Tribunal by the Respondent:
(a)section 37 documents for the physical injury claim (2017/0853) numbered T1 to T 76 (Exhibit R1);
(b)section 37 documents for the psychological injury claim (2017/2363) numbered T1 to T31 (Exhibit R2);
(c)supplementary s 37 documents for both the physical injury claim (2017/0853) and the psychological injury claim (2017/2363) in two volumes. The first volume is comprised of documents ST1 to ST6, and the second volume is comprised of ST7 only (Exhibit R3);
(d)the Respondent’s Statement of Facts, Issues and Contentions dated 22 February 2018 (Exhibit R4);
(e)briefing letters to Dr Mary Wyatt, Consultant Occupational Physician dated 7 June 2017 and 30 March 2017 (Exhibit R5);
(f)briefing letter to Dr Kevin O’Daly from Australian Government Solicitor dated 27 September 2017 (Exhibit R6);
(g)Medical Report of Dr Kevin O’Daly dated 16 October 2017 (Exhibit R7);
(h)section 57 referral to Dr Eugen Mattes from Allianz dated 15 August 2016 (Exhibit R8);
(i)letter to Dr Mary Wyatt dated 15 February 2016 and titled, “Fitness for duty assessment” with a four page “Guide for Fitness for Duty Reports” (Exhibit R9);
(j)section 57 referral to Dr Kevin O’Daly from Allianz dated 23 November 2016 (Exhibit R10);
(k)letter to Dr Sandra Gongora from Department of Human Services dated 3 November 2016 with attachments labelled A to L (Exhibit R11);
(l)letter to Dr Wasim Shaikh from Department of Human Services dated 5 May 2016 (Exhibit R12); and
(m)letter to Dr Wasim Shaikh from Department of Human Services dated 3 November 2016 with attachments labelled A to L (Exhibit R13).
The Tribunal has considered the parties oral and written submissions, the evidence of the witnesses at the hearing including the Applicant and the medical expert witnesses, and all the documentary material before it. The Tribunal is satisfied that the parties both had an adequate opportunity to be heard by the Tribunal.
THE LIFT INCIDENT
The extent of what happened in the lift warrants some discussion by the Tribunal because it is relevant to the extent and duration of the Applicant’s injuries (both physical and psychological) and the Tribunal’s assessment of the medical evidence given by the expert medical witnesses.
Evidence of the Applicant in her witness statement
The Applicant’s witness statement (Exhibit A1) is dated 20 July 2016, but in her evidence to the Tribunal, the Applicant confirmed that “2016” should be corrected to “2017”.
The Applicant gave the following evidence about the lift incident in her witness statement (Exhibit A1):
24. I got in the lift on the third floor and I needed to go to the basement because I had finished for the day and was going home.
25. I went in to the lift by myself and I pressed the basement button to exit the building as I was on my way home.
26. The lift just fell, and I don’t know how far I fell. Then it jolted to a stop.
27. I grabbed hold of the railing in the lift with my right hand (I am right hand dominant).
28. I held tight to the railing to avoid being thrown around in the lift.
29. The lift jumped up and down a bit before settling.
30. I was able to get hold of a technician in Sydney who told me to give him my mobile number.
31. He rang me back and told me that it would be about an hour before I was rescued. In fact, it was more than an hour and during that time I was in a state of panic feeling trapped and confined. I was afraid the lift might fall again.
32. I was crying and hysterical by the time they got me out, even though [the Team Leader] had been calling to me trying to keep me talking. I could also hear another voice that sounded below me, but I couldn’t hear what was being said.
33. When the lift doors opened, my usual team leader […] (she was acting assistant manager at the time), and the assistant manager […] (who was then acting manager) said that the lift people had a lot to answer for because they were supposed to be there within half an hour of a problem.
34.…[The]…, acting team leader, and […], the gentleman who handles the IT were also there.
35. No one asked me if I was okay, or offered assistance.
36. I got put into a room by myself, and the team leader […] offered me water.
37. I was not seen by anyone with first aid experience, and I could feel that I was going into shock.
38. I was upset and sore and stressed, and I could not face going into the lift to go downstairs.
39. [My Team Leader] held my handbag and we walked down the four flights to the basement on the stairs.
40. [My Team Leader] and I walked across the driveway that divided the work building and the carpark building, and up four flights of stairs to where my car was parked.
41. I don’t remember the drive home, and I don’t remember the stairs. I wasn’t conscious of any physical symptoms at first.
42. I had a poor night’s sleep and had a nightmare about the life (sic).
43. The next day, the pain in my back, neck and right shoulder was very severe and that is why I didn’t go into work. I saw Dr Wong, who certified me unfit.
42A. At the same time, I was teary and anxious, I had a phobia of lifts.

There are some inconsistencies in the wording of the Applicant’s witness statement. In paragraph 38, the Applicant states she was “upset and sore and stressed” after being put into a room after exiting the lift, but later in paragraph 41, she states, “I wasn’t conscious of any physical symptoms at first”. Reading the Applicant’s witness statement as a whole, it appears that the Applicant is describing some immediate soreness, followed by a period of shock, and then severe pain the next day. Specifically, in paragraph 43 of her witness statement the Applicant states, “The next day, the pain in my back, neck and right shoulder was very severe”. This is consistent with the oral evidence she gave at the hearing, which is discussed below. Paragraph 42A of the Applicant’s witness statement also appears in the incorrect chronological order (it is inserted after paragraph 43, and should be before it). However, this was likely the result of a drafting error by the Applicant’s solicitors in the course of preparing the witness statement, rather than indicating that the Applicant’s evidence was inconsistent and possibly unreliable.
Evidence from the Applicant at the hearing
At the hearing, the Applicant stated her witness statement was true and correct, and gave the following evidence about the lift incident:
SENIOR MEMBER: … so you got into the lift, and can you just described to us what happened?---
MS MILEVSKA: I got into the lift by myself. I pressed the button to go down to the basement so I could go to the next building, which was the car park; and the lift just fell. To describe the sensation, it’s like my stomach got left on the third floor and the rest of me just fell. Totally unexpected. As soon as I felt that sensation, that the lift had let go, I grabbed the railing with my right hand, and as it stopped, it violently bounced up and down. I knocked myself into the side of the lift. Nothing happened after that, so I pressed the assistance button to report that the lift had fallen.
SENIOR MEMBER: Then what happened after you pressed the lift assistance button?---
MS MILEVSKA: After a (sic) pressed the assistance button I got through to a gent over in New South Wales who said that he would put the report in to get someone to come out to let me out of the lift. He rang back after a couple of minutes, apologetic that a technician wouldn’t be available for probably over an hour until they could come and let me out. So whilst I was waiting, I got quite upset and quite anxious because I didn’t know if, as the lift had stopped, would it stay stopped until the technician came out or not.
MR BRUNS: All right. You describe at paragraph 32 that someone had been calling to you while you were waiting for the technician?---
MS MILEVSKA: Yes, that’s correct. I could hear two voices, what sounded like it came above me and what sounded like it came from the bottom, but there were definitely two voices that I could hear.
MR BRUNS: When the technician finally came, what adjustments were made to the level of the lift, and how did you get out?---
MS MILEVSKA: When the technician came out he said that he would try to bring the lift down. He tried to do so two or three times and thought he had me at a level where I could open the door and go straight out, but it didn’t happen, so he said he would try then to put the lift to go upwards, and that proved successful, and I went back to the third floor and the door released itself and I went out.
MR BRUNS: At paragraph 43 you say that next day the pain in your back, neck and right shoulder was severe?---
MS MILEVSKA: Yes.
MR BRUNS: You didn’t go to work. You saw Dr Wong. Was that on the same day, when you saw Dr Wong?---
MS MILEVSKA: No. No, it wasn’t. I wasn’t able to get in to see Dr Wong till Monday.
MR BRUNS: Can we just check our days of the week. The lift incident was on what day of the week?---
MS MILEVSKA: It was on a Thursday.
MR BRUNS: So the next day was a Friday, and you say you couldn’t get to see your doctor till the Monday?---
MS MILEVSKA: Yes.
SENIOR MEMBER: Ms Milevska, can I just take you back for a minute. You talked about the lift went back up to the third floor and the doors opened. What happened after that?---
MS MILEVSKA: Whilst I was in the lift I became quite anxious and quite upset and quite hysterical because I didn’t know, whilst I was waiting for the technician, if that would be the end of the lift failure or not. I wasn’t sure. Other people pressing the button might somehow make an impact on the lift that I was in. I came out of the lift. There were four people there: my acting team leader; my usual team leader, who was acting as assistant director; and the usual assistant director, who was acting as the director; and the IT gent for the building. My usual team leader made no comment, didn’t come over to see how I was. She just stood there, laughing at me.
Overall, the Tribunal found the Applicant to be a credible witness who answered questions honestly and to the best of her recollection. She appeared to be nervous and stressed in the Tribunal hearing. This is not unusual for an Applicant who is giving evidence to the Tribunal. The Applicant’s version of events regarding the lift incident is further supported by documentary evidence from the Applicant’s Team Leader which is discussed below.
Evidence from the Applicant’s team leader
In a document titled, “Team Leader/Manager comments in relation to the Workers (sic) Compensation Claim” (Team Leader comments form), signed by the Applicant’s Team Leader and dated 12 February 2016 also provides information about the Team Leader’s observations regarding the lift incident (Exhibit R1, T3). Under the heading, “Nature of the stated injury/condition” the following was stated, “Tranda advised that she had a sore neck as a result of the jolt and was quite distraught from the incident” (Exhibit R1, T3, page 17). This supports the Applicant’s version of events that she experienced some soreness immediately following the lift incident.
In response to question 3 of the Team Leader comments form, “Who witnessed the event? Attach the witness/es factual statement of events”, the following was stated (Exhibit R1, T3, page 17):
Team Leader …, [and] Assistance Director … witnessed that Tranda was alone in the lift when she became trapped. We are unable to confirm if the lift jolted only that she was inside the lift for the period 12:49 to 13:50 and we had to call a lift technician to release her. Tranda was very shaky and upset upon her release. [The Team Leader] for the period that Tranda was trapped continued to her (sic) a conversation with her to support her through the incident.
This supports the Applicant’s evidence that she was experiencing some psychological distress after being released from the lift. Although the Applicant suggested she was in the lift for over an hour, her Team Leader’s evidence suggests that she was in the lift for approximately one hour.
The following answer was stated under Question 4 of the Team Leader comments form, “Where/When/How did the stated injury/condition occur?”
Tranda was trapped in the lift at The Garden Office Park Building D from 12:49 to approx. 13:50 on the afternoon of the 21th (sic) January 2016. Tranda advised that the lift jolted once or twice and described it severe (sic) jolts. Tranda was alone in the lift at the time.
Attached to the Team Leader comments form was a one page report titled, “DHS Dept Report of Incident or Injury” (Exhibit R1, T3, page 19) which relevantly stated:
What Incident or Injury did you sustain (Nature of Incident or Injury):
SORE NECK AND WAS QUITE DISTRAUGHT
Part of body affected:
NECK AND HAVE BEEN SINCE ADVISED SHOULDER AND BACK
Describe how you sustained the Incident or Injury (Mechanism):
Lift jolted one or two times and described it severe jolts then stopped. Tranda was trapped into (sic) the lift by herself from 12:49 to 13:50. TL stood outside the lift for the whole period talking to her.
(Original Emphasis)
It appears from the words “Report from Manager” and the name of the Team Leader appearing at the bottom of this report that it was completed by the Team Leader, and not by the Applicant. The above comments in the Team Leader comments form and the “DHS Dept Report of Incident or Injury” support the Applicant’s evidence that the Applicant experienced soreness and psychological distress immediately after her release from the lift.
Email from Senior Work Health & Safety Advisor and Technician’s Report
There appear to have been ongoing issues with the lifts, as set out in an email from the Senior Work Health & Safety Advisor (WHS Advisor), Western Australia, Workplace Health and Safety Branch, People Services Division, Department of Human Services dated 23 February 2016 in which he stated: “There had been six callouts in the week before the incident, with staff caught in the lift until technicians arrived and could release them on 2 of those occasions” (Exhibit R1, T3, page 20). This supports the Applicant’s evidence of her continued anxiety of lifts in her workplace and her anxiety that the lift may malfunction again if she returned to work.
The email from the WHS Advisor (Exhibit R1, T3, page 20) continued on to state:
According to the e-work ticket, the technician spent just over 4 and a half hours onsite. No major faults were identified and therefore the lift was deemed safe to return to service. There have been no further callouts or issues regarding Lift #2 since that date.
There was a full safety investigation due to ongoing minor issues with both lifts in the building late last year, involving a Comcare Liaison Inspection & Worksafe and no non-compliances were identified. Further information regarding this investigation can be made available if required. As part of that investigation the lift contractor (Schindlers) has previously provided a pamphlet (attached) to given (sic) some basic background information on their type of hydraulic lifts and what it may mean if the lift feels like it has dropped or if it stops.
The email from the WHS Advisor (Exhibit R1, T3, page 21) further stated:
Unless there is an (sic) MAJOR fault as in the escape of hydraulic fluid, which is highly unlikely and has not occurred to either of the lifts at Osbourne Park, the sensation of falling is created by the lift changing speed or stopping suddenly if a safety device has been triggered. The governors, or speed sensing devices, will activate if the lift car reaches the maximum set speed in either direction. The lifts are classified as low speed low rise as they only service 5 floors (including the basement carpark). Having said all that, it is not possible to explain exactly what the jolt was that the staff member felt, only that there were no major faults and all safety devices were functioning correctly.
The contractor stated that overloading/overheating was likely a contributing factor for the issues with Lift #2 as there have also been issues with Lift #1, which was tagged out of service from 12/1/2016 to 25/2/2016 while technicians waited for replacement parts to arrive and completed necessary work. This meant that there was only the one lift servicing the two upper floors for that two week period.
Under the heading, “Technician Report”, the “e-Work Ticket” from Schindler Lifts Australia Pty Ltd states (Exhibit R1, T3, page 24):
On arrival found lift stopped 1metre below top floor Error Code RPT. Released trapped passenger and checked ECD controller relays DF & DS and UF and US reset lift and checked main flow valve on valve block and monitored lift.
Further, the “Reason for Breakdown” was stated as “Equipment related” (Exhibit R1, T3, page 24).
It appears from the information in the email from the WHS Advisor, and the e-Work Ticket that, as well as not being able to determine how far the lift dropped, the lift contractor could not determine the exact reason for the lift malfunctioning. It further appears that the lift dropped a minimum of one metre, however it could have dropped further.
Pamphlet
A page from the pamphlet, titled “Elevator safety”, referred to in the email of the WHS Advisor was before the Tribunal as Exhibit R1, T3, page 22. It contains a section headed, “Can elevators fall?” which states:
Some movements of an elevator can create the sensation of falling. Elevators have speed sensing devices known as governors which will trigger in the event of an over speed in either the up and down direction.
The pamphlet does, however, read like a marketing pamphlet, as indicated by the first paragraph (at Exhibit R1, T3, page 22) which states:
Did you know that elevators are the safest form of transport in our modern world? Modern elevator systems have some of the most sophisticated safety devices available on any form of transport used today.
In the Tribunal’s view, the pamphlet provides little assistance when considering how far the lift fell or the severity of the jolt as it appears to be more of a marketing pamphlet to satisfy customers and potential customers that lifts are a safe means of travel, rather than a report or technical manual of a scientific nature.
Tribunal’s findings about the lift incident
The Tribunal notes that the Team Leader, the WHS Advisor and the lift technician were not called as witnesses and their statements were therefore not able to be tested by cross-examination. Therefore, the Tribunal is reliant on the documentary evidence outlined above, and the evidence of the Applicant which was able to be tested through cross examination.
The following is apparent from the evidence:
(a)there had been issues with the lift the week preceding the lift incident, resulting in six call-outs, and staff having to be released by technicians on two occasions. The technical cause of these malfunctions was unclear;
(b)the lift dropped at least one metre with the Applicant inside it;
(c)the Applicant was trapped in the lift for approximately one hour until she was released by a lift technician;
(d)for the duration of time that the Applicant was trapped in the lift, her Team Leader talked to the Applicant from outside the lift to try to calm her;
(e)the Applicant immediately reported she had a sore neck upon her release; and
(f)she was visibly distressed and shaking upon her release.
Further:
(a)the Tribunal accepts the Applicant’s evidence that the lift dropped suddenly, and that there were one or two bounces. The Applicant appeared to be a credible witness who gave evidence to the best of her recollection about the lift incident. She gave similar contemporaneous evidence to her team leader following the lift incident (ie. “lift jolted one or two times and described it as severe jolts then stopped” – Exhibit R1, T3, page 19) and to her General Practitioner, Dr Wong (Exhibit R3, ST5, page 63);
(b)there is a possibility that the lift dropped more than one metre due to the Applicant hearing voices above and below her, and due to the unsuccessful attempts by the technician to raise the lift. However, in the Tribunal’s opinion, the evidence of a drop of more than one metre is inconclusive;
(c)the Applicant gave evidence that she did not fall over in the lift, which the Tribunal accepts as true. It is reasonable to conclude that in such a situation a person would strongly grip the handrail to prevent falling over, and, in the circumstances, it is reasonable to accept the Applicant’s evidence that she did so; and
(d)the Tribunal accepts the Applicant’s evidence that she experienced pain immediately following the lift incident, and as she contemporaneously reported to her Team Leader, that she was extremely frightened that the lift would drop further while she was inside it, and that she experienced severe pain in her back, neck and shoulder the following day.
MEDICAL EVIDENCE REGARDING THE PHYSICAL INJURY FROM THE LIFT INCIDENT
Dr Edelman
Dr Jack Edelman AM, has a Bachelor of Medicine Bachelor of Surgery (MB BS) and is a Fellow of the Royal Australasian College of Physicians (FRACP). He specialises in Adult Rheumatology, Connective Tissue Disease and Osteoporosis (Exhibit R3, ST7, page 99).
Dr Edelman did not appear as a witness before the Tribunal. However a letter from Dr Edelman to Dr Wong dated 29 February 2016 was tendered by the Applicant and admitted into evidence as Exhibit A5. Dr Edelman’s letter was referred to by the Applicant’s counsel in his cross examination of Dr Psaila-Savona and Dr Mattes (both discussed below).
The letter is approximately two pages in length, and its brevity is understandable given that it was intended for the Applicant’s general practitioner, Dr Wong (whose evidence is also discussed below). The letter discusses both the previous injury to the Applicant’s right hand and elbow, together with the physical injury arising from the lift incident. It is difficult to separate the discussions of each injury from reading through the letter. Relevantly, the letter states (Exhibit A5):
She did go off work between May and August last year and then tried to return back to work on a graduated programme and then had surgery for her carpal tunnel.
She gradually once again returned back to work but unfortunately on the 21^st January this year whilst in the elevator it dropped down a floor and seems to have made her shoulder worse produced neck and lower back discomfort as well as agitation and almost depression.
She is trying to attend physiotherapy which may be helping a little.
She still had quite a lot of pain around the right lateral epicondyler area. The muscles in her shoulder were quite tight. The same on the trapezius muscle. Neck movements produced some discomfort but she could move her shoulder reasonably well with some discomfort.
I note that originally the MRI of her shoulder showed some AC joint arthropathy and mild tendinopathy. There was also some bursitis there. The MRI of her right elbow showed consistency with a right lateral epicondylitis.
She obviously still has symptoms. As far as I am concerned they are due to her workplace. They originated more than 3 years ago and have continued on to this present day being aggravated by the fall in the lift.
She needs to have active physiotherapy and ongoing rehabilitation to try and strengthen the muscle area up. Whether she gets back to work or not is going to be trial and error. However if she was to return to work it would have to be in limited keyboard work.
The MRI findings of her shoulder are unlikely to be contributing to these symptoms as it seems to be quite muscular.
The lateral epicondylitis is no doubt due to her workplace and so is and was the carpal tunnel.
This letter appears to predominately focus on the injury that was previously before the Tribunal, and not the current injury – as indicated, for example, by the reference to the shoulder and elbow, the symptoms originating more than three years ago, and the reference to lateral epicondylitis (also known as “tennis elbow”), and carpal tunnel.
Dr Edelman also wrote a letter to Dr Wong dated 26 April 2017 (Exhibit R3, ST7, page 99) confirming that he examined the Applicant on the same day. Again, the letter appears to relate more to the previous injury, and not the current physical injury before the Tribunal. In this letter, Dr Edelman stated:
My opinion really does not change at all.
I have retaken her history as best I can and had another good look at her. The discomfort she has by examination is widespread in both upper limbs with quite a lot of tenderness.
I agree that the various investigations show changes around her shoulder, around her elbow and around her wrist.
However, as I tried to point out in Court this may have very little to do with all of her symptomatology. To me, looking back at it and looking at it in overview it is very probable that this is an occupational pain syndrome that we are seeing brought on by the workplace. It mainly expresses itself as significant muscle and tendon pain.
Obviously the whole system has been severely aggravated by the fall that occurred in the lift.
These symptoms are still present to this day and interfering with most activities that she does.
It is highly unlikely that she will return back to the workplace again except for attempting to strengthen up her upper limbs there is very little in the way of treatment…

Apart from stating that he had “retaken her history” and “had another good look at her”, it is unclear how Dr Edelman reached his findings – that is, how he formed his opinion. Additionally, as he referred to the shoulder, elbow and wrist, as well as the Court proceedings – he appears to be referring to the previous injuries that are not currently before the Tribunal. As Dr Edelman did not give evidence in person, the Tribunal was not able to clarify this information. As such, the Tribunal can give little weight to this evidence.
Dr Wong
Dr Wong is the Applicant’s General Practitioner. His qualifications are a Bachelor of Medicine Bachelor of Surgery (MB BS(WA) – see Exhibit R3, ST5, page 63) from the University of Western Australia.
Dr Wong gave evidence at the hearing that he has been the Applicant’s General Practitioner since 23 July 1989. Dr Wong has seen the Applicant for numerous medical appointments both before and after the lift incident.
Dr Wong provided the Applicant with her first medical certificate with the date of injury specified as 21 January 2016, and certifying her unfit for work from 22 January 2016 to 29 January 2016 (Exhibit R1, T3, page 13). In this first medical certificate, Dr Wong described the “Worker’s description of injury” as “Sore neck, right shoulder & back”.
Under the “Medical Assessment” section under the heading, “clinical findings/diagnosis…” Dr Wong wrote, “soft tissue injuries right shoulder, cervical thoracic and lumbar spine” (Exhibit R1, T3, page 13).
Further details about Dr Wong’s assessment of the Applicant’s injuries are found in a letter he wrote to the Team Leader, Senior Rehabilitation Consultant dated 2 September 2016 (Exhibit R3, ST5, page 63) in which he stated (after discussing the carpal tunnel injury which was the subject of the previous AAT decision):
In the 2^nd incident that happened on the 21^st January 2016, after stepping into a lift that had malfunction (sic), it dropped suddenly one floor down without warning and then came to a sudden stop bouncing up and down. The incident had jolted her neck and back and resulted in increased pain in her right shoulder, leading to muscular-ligamentous injuries to her cervical and lumbar spine, aggravation of her pre-existing cervical spinal osteoarthritis at the C5/6 level, and also aggravation of her right shoulder injury from the first incident at work.
Some 31 medical certificates were before the Tribunal, which were written by Dr Wong for the Applicant. These certificates were dated between 22 January 2016 and 28 February 2018, and were sometimes for overlapping periods of time. These medical certificates primarily relate to the Applicant’s physical injuries, which are at times described differently in some of the medical certificates, but some also refer to psychological injuries.
The Tribunal has undertaken the following non-exhaustive summary of the medical certificates from Dr Wong and the periods to which they relate, to assess whether they indicate, in Dr Wong’s opinion, that the Applicant had recovered from her physical injuries as at 18 January 2017:
(a)unfit for work between 22 January 2016 (Exhibit R1, T3, page 13) to 16 June 2016 (Exhibit R1, T24, page 261);
(b)fit for restricted return to work from 8 June 2016 to 7 July 2016 (Exhibit R1, T22, page 253 and 262);
(c)unfit for work between 20 June 2016 (Exhibit R1, T25, page 263) to 24 August 2016 (Exhibit R1, T34, page 295);
(d)unfit for work between 18 August 2016 and 17 September 2016 “unless suitable duties available not involving using ‘dragon’” (being a reference to Dragon Dictate which would involve the Applicant wearing a headset and dictating to a computer which would convert the information dictated into text);
(e)fit for restricted return to work from 5 September 2016 to 4 October 2016 (Exhibit R1, T39, page 306) and to 7 July 2017 (Exhibit R3, ST7, page 111);
(f)unfit for work for “anxiety depressive disorder due [handwriting in copy unclear] to her injuries…” from 17 May 2017 to 16 June 2017 (Exhibit R3, ST6, page 90);
(g)totally unfit for work for 3 months from 5 May 2017 to 7 August 2017 for physical injuries (Exhibit R3, ST7, page 112);
(h)unfit for work for 3 months from 8 August 2017 to 7 November 2017 (Exhibit R3, ST7, page 113) for physical injuries;
(i)unfit for work from 3 September 2017 to 2 November 2017 for physical injuries (Exhibit R3, ST7, page 114);
(j)unfit for work from 3 November 2017 to 2 January 2018 for “continuing sore neck and back PTSD has flared up…” and notes that he has referred the Applicant to Dr George Atartis for treatment (Exhibit R3, ST7, page 115);
(k)unfit for work for 2 months from 8 November 2017 to 7 January 2018 (Exhibit R3, ST7, page 116) for physical injuries;
(l)unfit for work for 2 months from 3 January 2018 to 2 March 2018 (Exhibit R3, ST7, page 117). This certificate refers to physical injuries, and treatment by Dr Atartis, the Applicant’s treating psychiatrist; and
(m)unfit for work for 2 months from 4 March 2018 to 3 May 2018. This certificate refers to physical injuries, but also “still with depression” and to Dr Atartis, the Applicant’s treating psychiatrist (Exhibit R3, ST7, page 118).
In summary, the medical certificates provided by Dr Wong indicate his opinion that the Applicant was unfit for work for most of the period from the time of the lift incident to 3 May 2018.
A treating practitioner will build up a relationship of trust with a patient, and there is a corresponding risk that a treating practitioner will accept the symptoms described by the patient without questioning the patient’s veracity to the same extent as an independent medical examiner would. However, in his evidence to the Tribunal, Dr Wong said that, in certifying the Applicant unfit for work, or only fit for restricted duties, he based his opinion not only on the basis of the symptoms that the Applicant described to him, but on the basis of his examination of the patient (for example, tenderness in her cervical spine), medical scans and the advice of the medical specialists he referred the Applicant to including Dr Edelman and Dr John Ker. Consequently, the evidence of Dr Wong, which indicates that the Applicant had not recovered from her physical injuries from the lift incident as at 18 January 2017, and that she has continued to suffer from those injuries, should be given some weight. Dr Wong’s evidence should, however be viewed in light of the above discussion and requires corroboration from other medical expert witnesses.
Mr Liddell
Mr Liddell has been practising independently as a neurosurgeon for over 30 years (Transcript of 1 May 2018, page 6).
Mr Liddell first saw the Applicant on 8 November 2016 (Transcript of 1 May 2018, page 6). In his oral evidence to the Tribunal, Mr Liddell confirmed that the Applicant had some pre-existing degenerative changes (Transcript of 1 May 2018, page 7). More specifically, in his report of 8 November 2016 (Exhibit R1, T52, page 356) Mr Liddell stated:
I examined her briefly, and noted that she appeared generally well. Indeed, she appeared surprisingly cheerful – given the apparent severity of her ongoing symptoms. She was able to walk on her toes and her heels, but was not able to touch her toes. Her cervical spine movements were moderately and diffusely restricted. However, she had no specific spinal tenderness.
The examination of her cranial nerves was unremarkable – as was the remainder of her neurological examination.
I reviewed (non-functional) x-rays of her cervical spine – performed on 5 February 2016, and noted evidence of moderately severe degenerative changes/ disc space narrowing at C5/6.
A cervical MRI scan – performed on 4 September 2016, revealed evidence of similar changes, associated with a mild to moderate degree of foraminal stenosis bilaterally (right>left) at that level.
I’m not convinced that these changes are “necessarily” severe enough to consider surgical intervention at this stage.
In the circumstances, I’ve arranged to investigate her further with a bone scan…
In his evidence at the hearing Mr Liddell stated that at the time of this report (8 November 2016), “I don’t think I had made a clear diagnosis at that point” (Transcript of 1 May 2018, page 7).
In a letter dated 14 November 2016 to Dr Wong, Mr Liddell noted the results of the Applicant’s bone scan, and reported (Exhibit R1, T56, page 366):
1. Low-grade increased tracer uptake associated with C5/6 and C6/7 disc degeneration.
2. Subtle increased tracer uptake involving the right C3/4 facet joint.
3. Low-grade increased uptake involving the acromioclavicular joints consistent with degenerative change.
I understand that Homan Zandi [pain specialist] has referred her to Bryan Suter (psychologist).
In the circumstances, I’ve suggested reviewing her in the New Year – prior to making any further recommendations.
The final letter from Mr Liddell to Dr Wong dated 9 January 2017 (Exhibit R3, ST3, page 34), states that, “I saw Mrs Milevska again today, and noted that the situation was not a lot different from what it was when I saw her last, although I understand that she is now walking on a regular basis.” He continued on to state, “Because of the number of people involved, I’ve not – at this stage, made a further appointment to see her again, although I would of course be pleased to do so if requested” (Exhibit R3, ST3, page 34).
In his evidence to the Tribunal, Mr Liddell had the following exchange with the Senior Member (Transcript of 1 May 2018, pages 8-10):
SENIOR MEMBER: … in that type of scenario where someone is in a lift and it suddenly falls, what sort of injuries might they sustain?---
MR LIDDELL: It depends - it would depend entirely on how fast the lift fell and how suddenly it came to a stop.
SENIOR MEMBER: Yes?---
MR LIDDELL: Now, the information that I was given is that the lift dropped approximately one metre, and Mrs Milevska told me that she gripped the rail for dear life with her right hand. That would suggest that it was a fairly significant event.
SENIOR MEMBER: Yes?---
MR LIDDELL: Perhaps not unlike a motor vehicle hitting a stationary object at some speed. For example, people can sustain life-threatening head injuries by falling from a standing position backwards onto a firm surface. So a fall of one metre, if that is correct, and if the lift stopped suddenly, could cause significant soft tissue injuries.
SENIOR MEMBER: Yes, and which parts of the body would you expect to see those injuries?---
MR LIDDELL: Very hard to be specific, but spinal injury is certainly a possibility.
SENIOR MEMBER: Yes, yes. Thank you. My other question was about that there seemed to be some pre-existing degenerative changes?---
MR LIDDELL: Right.
SENIOR MEMBER: I was just wondering if you are able to tell me about those, and perhaps the impact that a falling lift might have had on those changes?---
MR LIDDELL: So the X-rays that were performed in February of 2016 revealed moderately severe degenerative changes, disc space narrowing at C5-6. So they are not mild. They are moderately severe. A cervical MRI scan performed in September revealed evidence of similar changes associated with a mild to moderate degree of foraminal stenosis bilaterally. Now, foraminal stenosis is narrowing of the nerve root canals where the nerve roots come out on either side. If the disc space is narrowed because of degeneration, then those nerve root canals can become narrowed, and any insult to that area, for example in a motor vehicle accident or whatever, can make those changes become symptomatic. I guess it causes some inflammation or whatever that can irritate the nerve roots, cause pain.
SENIOR MEMBER: Yes, okay. The recovery as well, one of the things that I also need to determine is whether Ms Milevska continues to suffer from these particular injuries. So if someone did experience these type of injuries in January 2016, what is the sort of prognosis that the recovery - - -?---
MR LIDDELL: It’s a tough call, but in general terms, if you are going to sustain an injury you are probably better off having a bone injury, because bones heal up fairly quickly, within a few months. Ligaments and tendons and muscles can take a lot longer.
SENIOR MEMBER: Is it sort of it depends?---
MR LIDDELL: It depends, yes. Is the answer.
SENIOR MEMBER: What would your views be about this particular case?---
MR LIDDELL: The big problem with when we talk about soft tissue injuries is we really do not have an investigative tool that is good at making a specific diagnosis. It is more or less a diagnosis of exclusion, by excluding bone injury. Then you’re reliant on a patient’s symptoms, as to what they’re telling you, which unfortunately doesn’t help you. Unfortunately life’s not always easy.
SENIOR MEMBER: … Could it take, depending on the person, you know, person A may recover within months but person B may take years to recover, or - - -?---
MR LIDDELL: Yes, I think the best example I could give would be of a sprained ankle, which I’m sure you’d be aware can take many months, sometimes a year or so, to - - -
SENIOR MEMBER: Yes?---
MR LIDDELL: Someone can end up with always having a bit of a weak ankle. Then there are all the other associated injuries of, you know, some sudden, unexpected event. You know, a ceiling crashes in on us or something completely unexpected is a potentially traumatic incident, and that can magnify any physical injuries that might or might not have been sustained.
SENIOR MEMBER: Yes. With the medical treatment, what sort of treatment are people given when they suffer from this type of injury? Is it a matter of taking certain medication, doing certain exercises or just rest and it goes away, or - - -?---
MR LIDDELL: Well, there are a surfeit of treatments out there, which would suggest that none of them are super terrific. Generally in my view it’s a matter of time, being expectant and waiting for nature to do its job.… And sometimes a bit of jollying people along and being supportive and encouraging. But you know, I don’t think there is any really specific treatment for most soft tissue injuries.
SENIOR MEMBER: Yes. Would most soft tissue injuries resolve at some point, or would they - - -?---
MR LIDDELL: Yes, but as I said, the example of the ankle is sometimes if someone has a really nasty ankle strain they can have a weak ankle for a long time.
SENIOR MEMBER: Yes, yes. Okay, thank you very much. I do have one more question as well about what would the impact be of these types of injuries on a person’s capacity to work? So I am thinking about the nature of Ms Milevska’s injuries. What would the impact be on what was her duties?---
MR LIDDELL: Well, I keep harking back to the fact that we - I was unable to make a specific diagnosis. So you are really very dependent on what a patient is telling you. If their symptoms are consistent with the mechanism of injury, which I think they were, but it is very hard to make predictions in the absence of a specific diagnosis.
In summary, it is difficult for the Tribunal to draw any definite conclusions from Mr Liddell’s evidence. On the one hand, it would appear that the Applicant was still suffering from the symptoms of the physical injury when he re-examined her on 9 January 2017. However, Mr Liddell, as he himself stated, was somewhat reliant on the self-reporting of symptoms by the Applicant. She also appeared to make some improvement by 9 January 2017 when Mr Liddell noted that she was walking on a regular basis.
Dr John Ker
The Applicant was referred to Dr Ker by her General Practitioner, Dr Wong on 27 February 2016 (Exhibit R3, ST4, page 35-38). He gave evidence at the hearing that he first saw the Applicant on 3 June 2016 (Transcript of 4 May 2018, page 20).
Dr Ker has a Bachelor of Medicine, Surgery and Obstetrics from Queens University, Belfast (1974), is a surgical fellow of the Royal College of Physicians and Surgeons of Glasgow, and a fellow of the Australian College of Rehabilitation and Medicine (now incorporated with the Royal Australian College of Physicians). He is also a Fellow of the Faculty of Rehabilitation Medicine within the Royal Australian College of Physicians.
In a report dated 30 June 2016 addressed to the Applicant’s former solicitors (Exhibit A6), Dr Ker commented on both the physical injury currently before the Tribunal, and the injuries to her right elbow and shoulder that were previously before the Tribunal, and not the subject of these proceedings. Consequently, the analysis below only relates to the physical injury currently before the Tribunal.
In his report of 30 June 2016, Dr Ker discussed the lift incident, and the results of scans ordered by Dr Wong when discussing the Applicant’s medical history:
… your client’s return to work was disrupted by a separate incident on 21^st January 2016. On that occasion, whilst at the workplace and utilising an elevator, it would appear that the elevator fell suddenly - she thought over a distance of one floor.
My understanding is that subsequent to this incident, Ms Milevska developed back and neck pain. She again presented to Dr Wong, who initially investigated her with radiographs of the spine - cervical, thoracic and lumbar.
This radiological study (5^th February 2016) provided evidence of some minor degenerative change in the cervical spine - with intervertebral disc space narrowing at the CS/6 level, and largely age-related changes in the thoracic spine. The radiographs of the lumbar spine demonstrated that your client had a developmental abnormality - with a transitional L6 vertebra, but no other associated significant pathology.
Dr Wong extended the scope of your client’s cervical radiographs with the undertaking of a CT scan, which confirmed the spondylotic change at the C5/6 level and some associated facet joint arthropathy, but excluded any significant intervertebral foraminal stenosis or possible neural compromise.
Dr Ker further stated (in Exhibit A6, page 3) that:
At the time of my consultation, she presented with evidence of local tenderness posteriorly in the mid-cervical spine, and a curtailed range of cervical spine movement with moderate restriction of flexion and extension, and a modest curtailment of rotational movements to right and left.
His diagnosis, with respect to the physical injury, was (in Exhibit A6, page 5):
I believe that she has sustained an indirect strain injury primarily to the cervical spine – the site of pre-existing cervical spondylotic change at the C5/6 level.
Ms Milevska has had a more general strain to the lumbar spine, where investigation has demonstrated a pre-existing developmental abnormality.
Dr Ker concluded that the Applicant was not fit for work, and further explained at the hearing (Transcript of 4 May 2018, page 18, [40]-[45]):
MR BRUNS: When you expressed your opinion right at the end about the client not being fit for work, is that as a result of the spinal symptoms from 21 January 2016, leaving aside such matters as the shoulder, that you just mentioned?‑‑‑
DR KER: Well, I did mention about shoulder because I must say I thought the two were very much a part of the same problem. That’s been the difficulty with this lady, differentiating one from the other. But if you’re asking me whether the cervical spine symptoms and pathology that this lady had were sufficient at that time to render her unfit, I would say yes.
Dr Ker again saw the Applicant on 15 September 2017, and subsequently produced a report addressed to Dr Wong on 18 September 2017 (Exhibit A7) in which he stated that “At the time of this consultation I learned that there had been little change in her treatments since my last consultation with her in or around four months ago”, and further that there was “…little discernible reported improvement since I last saw her”.
He again saw the Applicant on 20 March 2018, and produced a further report addressed to Dr Wong dated 3 April 2018 (Exhibit A9). This report contains descriptions of symptoms described to Dr Ker by the Applicant, including:
I reviewed with Mrs Milevska her ongoing symptoms. She continues to report a degree of cervical discomfort, where clinically at the extremes of extension and rotation to left and right, she has discomfort. However cervical flexion is well preserved.

Dr Shaikh undertook an examination of the Applicant on 10 May 2016, after which he produced a “Fitness for Duty” report dated 18 May 2016 (Exhibit R2, T12, page 123). This report was requested by the Department of Human Services, and was commissioned through MLRSA. It is solely authored by Dr Shaikh. Dr Shaikh’s qualifications are set out above in the section regarding Dr Gongora’s evidence.
In this report, Dr Shaikh stated that his diagnosis of the Applicant is “Adjustment Disorder with Mixed Anxiety and Depressed Mood”, in accordance with the DSMIV/5 (Exhibit R2, T12, page 129). Dr Shaikh went on to state that he did not believe that the Applicant was “receiving appropriate treatment for her condition” and recommended approximately six sessions of cognitive behavioural therapy with a psychologist and a “serotonergic antidepressant to manage her anxiety symptoms” (Exhibit R2, T12, page 129). He stated that the Applicant should be able to return to work within eight weeks, provided that she received “appropriate treatment” (Exhibit R2, T12, page 132).
As the report is a fitness for duty report, its focus is on the Applicant’s capacity to work, rather than providing a detailed forensic medical diagnosis of the Applicant’s psychological injury. In this report, Dr Shaikh states the diagnosis of “Adjustment Disorder with Mixed Anxiety and Depressed Mood”. However, apart from stating a brief medical history of the Applicant and a paragraph regarding his clinical examination of her, how Dr Shaikh reached this diagnosis is not explained in detail. The Tribunal does, however, give some weight to the report which indicates that the Applicant suffered a psychological injury related to work, which would make her unfit for work until approximately 18 July 2016 (eight weeks from the date of the report), and possibly longer if the Applicant did not receive the “appropriate treatment”.
As discussed in the above section regarding Dr Gongora’s evidence, Dr Shaikh was involved in the writing of two further reports regarding the Applicant. These were the joint reports written by Dr Shaikh and Dr Gongora dated 23 December 2016 and 9 January 2017. The Tribunal refers to the above discussion with respect to Dr Gongora regarding the significant defects in the two joint reports and its reasons as to why the Tribunal cannot give weight to those jointly written reports.
Dr Kevin O’Daly
Dr Kevin O’Daly gave evidence to the Tribunal in person on 3 May 2018. He is a Consultant Psychiatrist who sees patients in private practice. He also provides independent medico-legal opinions through MLCOA. His qualifications are a Bachelor of Science (BSc), a Bachelor of Medicine Bachelor of Surgery (MB BS), and he is a Fellow of the Royal Australian and New Zealand College of Psychiatrists (FRANZCP).
Dr O’Daly examined the Applicant on 23 November 2016, and consequently produced a report dated 16 December 2016 (Exhibit R2, T19). In this report, Dr O’Daly noted the following with respect to the lift incident (Exhibit R2, T19, page 169):
In January 2016, Ms Milevska was involved in a workplace incident, whereby she was present during the accidental fall of a lift and was then trapped within the lift. Since that time Ms Milevska has had problems returning to work and her mood state has deteriorated and she has been treated for symptoms of low mood and anxiety with antidepressant medication. She recently commenced clinical psychology work.
The following diagnosis was made by Dr O’Daly (Exhibit R2, T19, page 170):
In my opinion, pursuant to DSM-IV and DSM-5, Ms Milevska meets those criteria for the diagnosis of Adjustment Disorder with mixed anxiety and depressed mood (309.28 (F43.23). Ms Milevska has manifest (sic) the development of emotional and behavioural symptoms in response to an identifiable stressor and her symptoms have been clinically significant, with marked distress that is out of proportion to the severity and intensity of the stressor and she has manifest significant impairment in social, occupational and other important areas of functioning.
Regarding the extent of the contribution of the Applicant’s work to her psychological injuries, Dr O’Daly stated (Exhibit R2, T19, page 170):
In my opinion, work has been a predominantly contributing factor to Ms Milevska’s psychological injury, ie. The diagnosis of an Adjustment Disorder. As described above, the development of emotional and behavioural symptoms has been related to identifiable stressors and these have included:
(a) Physical injuries that Ms Milevska describes as occurring secondary to her workplace experiences;
(b) Problematic legal complications (worker’s compensation claims and physical assessments); and
(c) Ms Milevska’s self concept and change of ‘sense of self’, secondary to the loss of her work role; and
(d) The events of the lift incident in 2016.
In response to the question, “Please detail any pre-existing conditions or non-work related factors which may be an attribution to Ms Milevska’s current psychological injury”, Dr O’Daly stated in his report (Exhibit R2, T19, page 170):
In my opinion, there were no pre-existing conditions nor non-work related factor(s), other than Ms Milevska’s personality construct, which describes a somewhat anxious predisposition, but no overt Axis II personality deficits apply.
In response to the question, “Is Ms Milevska’s employment a cause of her current diagnosis/es? If yes, please detail how Ms Milevska’s employment has contributed to, to a significant degree, to her current clinical presentation”, Dr O’Daly stated (Exhibit R2, T19, page 170):
In my opinion yes, in the context as described above, the combination of Ms Milevska’s adjustment reaction to the stress of her altered sense of self and loss of role secondary to physical injuries, physical pain, inability to work and the lift incident in 2016.
Dr O’Daly concluded that the injury had partly resolved (Exhibit R2, T19, page 171), that she should continue her medication regime and ongoing support from a clinical psychologist (Exhibit R2, T19, page 171), and that she could currently undertake a return to work program of two half days a week for a month, to be subsequently gradually increased back to full time hours (Exhibit R2, T19, page 171-172). Dr O’Daly did note, however, that “The prognosis is poor if Ms Milevska is (in her words) ‘forced’ to continue to fulfil her previous role, which she perceives further worsens and exacerbates her physical injuries” (Exhibit R2, T19, page 172).
Dr O’Daly re-examined the Applicant on 4 October 2017 and produced a report dated 16 October 2017 (Exhibit R7). In this report Dr O’Daly diagnosed the Applicant with “Posttraumatic stress disorder and major depression”, and “Cluster C personality traits anxious avoidant dependent” (Exhibit R7, page 6).
Dr O’Daly noted that the Applicant said that she had a “psychological breakdown” in May 2017, following a workplace case management meeting in April or May 2017 (Exhibit R7, page 3). He further stated (Exhibit R7, page 4):
Although Ms Milevska denied any specific symptoms of PTSD at my assessment in December 2016, she has however, since described to Dr Atartis in May 2017, that since her workplace meeting in April (sic) 2017, she has encountered symptoms of: nightmares; scanning the environment; fearfulness with panic attacks; depression; flashbacks and avoidance behaviours.
Ms Milevska had, at my assessment in December 2016, denied however any overt nightmares then, but said that she has had some flashbacks and avoidance behaviours regarding lift apparatus. Ms Milevska said today that the symptoms she described recently to Dr Atartis had emerged and worsened since her workplace meeting in May 2017.
And further, Dr O’Daly noted (Exhibit R7, page 5), “Ms Milevska said that she has deteriorated in her mental state as a result of information that she gained from a friend regarding the continued problematic lift apparatus at her previous workplace and following a workplace meeting in May 2017”.
The following exchange from Mr Bruns’ examination of Dr O’Daly is relevant to the effect of this workplace meeting (Transcript of 3 May 2018, page 99):
MR BRUNS: You talk about a meeting in May 2017 in that second report. Can that in fact be characterised as an extreme example of the kind of reactivation process we spoke about a minute ago? There was a discussion about lifts and about whether or not they were safe?---
DR O’DALY: It is what I was alluding to, but in the context of it being, I guess, subjective as well in the degree. It’s not really - it’s described as being an aspect of distress for Ms Milevska, so the answer is whether that is a reintroduction of the theme of the original stressor, then the potential for that is yes.
Dr O’Daly stated the opinion that the Applicant was “currently unable to work and the prognosis for a return to work would be poor in the short-term”, and that “In my opinion, Ms Milevska is currently unable to work for at least the next three months” (Exhibit R7, page 7). Later in his report, Dr O’Daly stated his prognosis as follows: “In my opinion, the short-term prognosis is poor for the next three months … the long-term prognosis should improve with compliance with attendance at psychiatry and psychology/therapy appointments and with case management input and guidance regarding an alternate employment environment” (Exhibit R7, page 11).
In response to the question, “Which employment and non-employment related factors do you consider contributed to the condition? If you consider that there is more than one contributing factor, please discuss the estimated contribution of each such factor (in percentage terms, if possible)”, Dr O’Daly stated (Exhibit R7, page 10):
In my opinion, the contributing factors are related to Ms Milevska’s: personality construct of a Cluster C anxious avoidant predisposition; her perception of physical injury and the then perceived lack of support from her company; combined with those features was the incident of the lift fall and Ms Milevska’s adjustment reaction to that particular incident and then an exacerbation of her symptoms in May 2017 following her workplace meeting.
In my opinion, all of the above factors continue to contribute to the symptoms currently experienced by Ms Milevska and the estimated contribution of each such factor in percentage terms would be:
o40% personality construct
o20% her physical injuries/workplace relationship
o20% her complaints regarding the feeling of lack of support from her company
o20% from the incident with the lift and the exacerbation of her symptoms at following the workplace meeting
In his evidence at the hearing, the following exchange is relevant as to the factors which contributed to the Applicant’s psychological injury (Transcript of 3 May 2018, pages 101-102):
MS DOWSETT: Coming back to your first report, you had indicated that there were a number of contributing factors. Are you able to comment upon whether those factors continue to play a role in the presentation from the last occasion you saw Ms Milevska?---
DR O’DALY: I think I would say that they would. I think - and the question I answered a few minutes ago was implying that this is a multi-factorial - most psychiatric cases and diagnoses are multi-factorial, so the combined effects of her relationship with work; her physical injuries in the first instance; her relationship with - as she alludes to - legal complications; her stage of life; and then the experience; the combination - I do feel as though there are a combination of factors, yes.
At this point, it is relevant for the Tribunal to pause and consider Dr O’Daly’s evidence as to the “combination of factors” which contributed to continuation of the Applicant’s psychological injury. As noted above in the discussion of Dr Ng’s evidence, the Respondent argued - in accordance with Australian Telecommunications Commission v Tzikas (1985) 5 AAR 173 - that these factors indicated that the Applicant’s psychological injury could no longer be said to be contributed to, to a significant degree, by her employment. The Respondent further cited Prain v Comcare [2016] AATA 459 in this regard.
The Tribunal observes that Dr O’Daly expressed the factors differently in each of his reports, for example, his first report refers to “problematic legal complications”, which are not referred to in the second report. This may be because Dr O’Daly reassessed the factors after the patient described additional symptoms to him which led him to change his diagnosis of the Applicant to include PTSD. However, the Tribunal further observes that Dr O’Daly was asked to perform the difficult task of assigning percentages to factors that are inherently not capable of being categorised in such a way. That is, how can the factors contributing to a psychological injury accurately be broken down into percentages? Is such an assessment scientifically quantifiable? Additionally, it is unclear as to how each of the percentages and factors relate to one another, and whether they overlap. For example, “workplace relationship”, “feeling of lack of support from her company” and “the exacerbation of symptoms…following the workplace meeting” (in April or May 2017 at which the safety of the lifts was discussed according to the evidence of the Applicant) appear to be interrelated, and indeed could all relate to the lift incident, and yet are expressed as separate factors. When one does, however, view these factors as a whole, it can be said that the Applicant’s employment, and specifically the lift incident, continued to contribute to the Applicant’s psychological injury to a significant degree. That is, in a manner that is substantially more than material – or to use Dr O’Daly’s words from his first report, work continued to be a “predominantly contributing factor”.
The Tribunal also notes the following exchange from the hearing, which is relevant to the issue of “denial” (and the differing diagnoses between the two reports). It is also relevant to assess the Respondent’s suggestion that the Applicant may have recovered from the injury, and then suffered a new injury around the time of the workplace meeting in April or May 2017 (Transcript of 3 May 2018, page 99-100):
DR O’DALY: … But the reportage of the symptoms of flashbacks and nightmares only came out later. And again I will allude to the report by Dr Ng, who comments that the motivation for the denial of the original symptoms are vague and really unknown, as to whether that was stoicism or whether that was a lack of symptomatology.
SENIOR MEMBER: Does that happen with patients, do they sometimes omit things or deny things that later come out?---
DR O’DALY: The answer is yes; and sometimes it’s the other way around. Sometimes people initiate the description of symptoms when they don’t exist.
SENIOR MEMBER: What might be the reasons? I suppose there are a range of reasons why a patient might deny or omit something?---
DR O’DALY: Denial by definition is that reason, they’re in denial of a process. And I’ve alluded to the aspect of her self-concept and change, and there’s a denial aspect as a fairly mature psychological defence for all of us in that regard: "this isn’t really happening to me", for want of a better phrase. And then in this case in particular, because I’ve listed those physical injuries, but also the problematic legal qualifications, which seem to not go away, then one might talk about the evolution of stress and depression, which I think that’s what Dr Atartis has really described, that depression has manifest from a protracted period of an adjustment problem.
SENIOR MEMBER: Yes?---
DR O’DALY: But whether that answers the question about PTSD, one can only say that she has always met the criterion A descriptor, but didn’t describe the symptoms in the first instance.
SENIOR MEMBER: Yes, okay. So would it be your opinion that Ms Milevska currently suffers from PTSD?---
DR O’DALY: From the time that I saw her she was overtly describing symptoms that met the criteria. I haven’t seen her since, so given today’s - you know, the time frame between then, things could have changed. Dr Atartis’ reports have described a sort of remitting and relapsing response to medications and a relapse in the context of some stress that he described with the loss of a family member. So whether there’s a sort of a kindling and a precarious depressive state that’s now vulnerable to, you know, a more sensitive reaction, and that alludes back to a diagnostic criteria for adjustment disorder, which is about a stressor, and sometimes the response is - I think the actual words are "out of proportion to the severity and intensity of the stressor".
The Tribunal makes the following further observations from Dr O’Daly’s evidence. At the time of his report of 16 December 2016, he was of the opinion that the Applicant had suffered from a psychological injury (adjustment disorder with mixed anxiety and depressed mood) and that the predominant contributing factor was her work. At that time, his opinion was that the condition was partially treated and that she could undertake a gradual return to work, commencing with two half days per week.
However, when Dr O’Daly re-examined the Applicant on 4 October 2017, the Applicant described additional symptoms which resulted in a diagnosis which included PTSD and major depression. He noted that the Applicant had a “psychological breakdown” which coincided with a work conference in April or May 2017, and which was contributed to by several factors relating to the lift incident, workplace and physical injuries, as well as her “personality construct”. As well as the reservations expressed by the Tribunal above about quantifying the factors contributing to the psychological injury in terms of percentages, it is plausible that the discussion about the lifts in the workplace at this meeting may have refreshed the Applicant’s continued symptoms of psychological injury at that time. This was particularly as she believed her employer was giving her misleading information about the safety of the lifts, when she had heard from several work colleagues that there continued to be issues with the operation of the lifts (as described by the Applicant in her evidence at the hearing). However, predominantly, these factors relate to the lift incident.
A conclusion as to whether the different descriptions of symptoms given by the Applicant to Dr O’Daly on the two occasions he examined her indicated a recovery, and then a new injury, cannot be logically drawn from the medical evidence as a whole. Indeed, Dr O’Daly stated that he agreed with Dr Ng that, “the motivation for the denial of the original symptoms are vague and really unknown”. As such, the Tribunal is of the opinion that it would not be logical to draw the conclusion that the Applicant recovered from an adjustment disorder, but then suffered a fresh injury of PTSD. There would also appear to be no criterion A event which would be sufficient to justify the onset of a new injury of PTSD. With respect to the workplace meeting in April or May 2017, the more likely conclusion is that, as discussed above, it refreshed (or continued) the Applicant’s symptoms, rather than amounting to a new psychological injury.
Additionally, Dr O’Daly was always of the opinion that the Applicant “has always met the criterion A descriptor” for PTSD. This suggests that the Applicant did not recover and that throughout the period in between the reports by Dr O’Daly, she continued to suffer from a psychological injury, regardless of the diagnostic descriptor. Although Dr O’Daly was not able to state whether the Applicant continued to suffer from the psychological injury at the time of the hearing (Transcript of 3 May 2018, page 100), he stated that, “I think any psychiatric diagnosis, there’s an inverse relationship with regards to prognosis with duration of unwellness. I think that would be fair to say; so the longer that this case goes, the poorer the prognosis” (Transcript of 3 May 2018, page 101). Dr O’Daly’s report of 16 October 2017 indicates that the Applicant was suffering from a Psychological Injury at that date, and in his opinion, would be unable to work for approximately 3 months.
Dr George Atartis

Dr George Atartis, is a Consultant Psychiatrist, and is the Applicant’s treating psychiatrist. His qualifications are a Bachelor of Science (BSc), a Bachelor of Medicine Bachelor of Surgery (MB.ChB), FF. Psych, and is a Fellow of the Royal Australian and New Zealand College of Psychiatrists (FRANZCP).
Dr Atartis did not give evidence at the Tribunal hearing. However, as the Applicant’s treating psychiatrist, his opinion is relevant to the issues before the Tribunal. The Tribunal notes that the documentary evidence from Dr Atartis has not been tested by cross-examination. The Tribunal also notes that Dr O’Daly, in his report of 16 October 2017 (Exhibit R7, page 11), stated that “I do not disagree with any aspects of Dr Atartis’ report dated 31 May 2017”, so a consideration of documentary evidence pertaining to Dr Atartis also assists the Tribunal in its consideration of Dr O’Daly’s evidence. As discussed above, Dr Ng also gave consideration to the opinion of Dr Atartis in giving his evidence to the Tribunal.
In a letter dated 31 May 2017 to Dr Wong (Exhibit R3, ST1, page 1) of approximately one and a half pages in length, Dr Atartis states his “diagnostic impression” to include “major depressive disorder, severe”, and “Post traumatic stress disorder, chronic with Panic Attacks, severe”. He also noted “Blood and needle phobias”. His “clinical findings” were stated as:
I reviewed Tranda today and she certainly presents as being quite emotionally distressed. It appears that she was injured entering a lift in January 2016 where the lift suddenly plummeted and she was trapped for an hour. She came out of the lift in a distressed state and unfortunately, from what she has told me, she did not get significant staff support and was left in a room to ‘get herself together’. She’s had a previous Worker’s Comp Injury for Carpal Tunnel Syndrome and had been on a Return to Work Program. She describes nightmares, scanning the environment, fearfulness with panic attacks, depression, flashbacks and avoidance behaviours. Surprisingly, she has been cleared to return back to work which I cannot agree with. She presents as extremely tearful with a pulse rate of 120 and scored in the extreme range for both depression and anxiety.
Dr Atartis stated his “Management Recommendations” as follows (Exhibit R3, ST1, page 2):
…I believe she is currently psychiatrically unfit for work. She is still quite traumatised at present and requires active management under specialist care. I have indicated to her that it is likely to be a three to six month treatment course in order to try and see if we can improve both her depression and her anxiety. It is likely if she doesn’t respond to treatment that she may also require EMDR Therapy.
Dr Atartis recommended a follow up in two weeks’ time. Accordingly, Dr Atartis reviewed the Applicant again on 5 July 2017 (Exhibit R3, ST1, page 8), and stated that “…she’s starting to respond to treatment. She is no longer emotional and her mood is slowly starting to improve. Anxiety a lot better as well. Pain issues persist.” In the second and final paragraph of this letter, Dr Atartis continues on to discuss the medications that the Applicant is taking, and states that he will review the Applicant again in six weeks’ time.
Dr Atartis wrote further letters to Dr Wong after his appointments with the Applicant on 9 October 2017 (Exhibit R3, ST7, page 103), 6 November 2017 (Exhibit R3, ST7, page 104), 6 December 2017 (Exhibit R3, ST7, page 105) and 16 January 2018 (Exhibit R3, ST7, page 106). These letters indicate the ongoing treatment of the Applicant by Dr Atartis, and detail the various medications that he is prescribing to the Applicant, including changes of dosages. Notably, in his letter to Dr Wong of 6 December 2017, Dr Atartis stated, “I have indicated to Tranda that she is medically unfit to return back to work on psychiatric grounds and given her a two month certificate to cover her until the end of February”. Dr Atartis issued five medical certificates (Exhibit A8), certifying the Applicant as “booked off work” (which the Tribunal infers means “unfit for work”) from 31 May 2017 to 1 May 2018.
The Tribunal reiterates that Dr Atartis was not cross examined, and nor does he explain the basis for his opinions in any detail. This is understandable, given that they were intended for the Applicant’s general practitioner, Dr Wong, and not intended as medico-legal reports. However, they do provide a longitudinal analysis (as described by Dr Ng) and add further weight to the opinions of Dr Ng and Dr O’Daly, who were able to state the basis for their diagnoses in detail, and stated their agreement with Dr Atartis’s diagnosis.
CONCLUSIONS REGARDING PSYCHOLOGICAL INJURY
The relevant medical evidence – that is the evidence of Dr Ng, Dr O’Daly and Dr Atartis – consistently suggests that the correct diagnosis for the Applicant is PTSD. This evidence, together with the evidence of Dr Wong, also suggests that the Applicant had not recovered from PTSD as at 12 February 2016 and 23 November 2016 respectively, and that she required ongoing medical treatment and was incapacitated for work.
With respect to whether the Applicant continued to suffer from the psychological injury, the Applicant’s general practitioner, Dr Wong, was of the opinion that the Applicant continued to suffer from the psychological injury beyond the dates in the determination, and indeed up to the time of the Tribunal hearing. However, as discussed above, his evidence required corroboration from the other expert medical witnesses.
A psychologist, Lesley McGregor, initially found symptoms of PTSD on 26 April 2016 (however again, her findings were not tested by cross-examination). The evidence from Dr Ng indicates that, as at 20 November 2017, he was of the opinion that the Applicant suffered from PTSD and major depression, and was unfit for work with the lift incident being “the most significant contributing factor”.
After examining the Applicant on 23 November 2016, Dr O’Daly diagnosed the Applicant with adjustment disorder with mixed anxiety and depressed mood with work being the “predominantly contributing factor” and with “no pre-existing or non-work related factors”. However, after he re-examined the Applicant on 4 October 2017, he reached the diagnosis that the Applicant was suffering from PTSD after she described additional symptoms, and stated that she would be unable to work for “at least three months” (until approximately 4 January 2018). Although he later reformulated the contributing factors slightly with assigned percentages, they could still be seen to relate to the Applicant’s work, and specifically the lift incident, to a significant degree.
Dr Atartis, who commenced treating the Applicant in May 2017, after a referral from Dr Wong, also certified the Applicant as unfit for work on psychiatric grounds until 1 May 2018.
In addition to the above discussion, with respect to whether the psychological injury continued to be contributed to, to a significant degree, by her employment, the Tribunal has also considered the following factors in s 5B(2) of the SRC Act:
(a)Duration of employment: The Applicant has worked at the Department of Human Services (Centrelink since 1982). However, unlike, for example, a physical injury caused by repetitive work, the length of employment is not entirely helpful to guide the Tribunal with respect to the issue of whether the Applicant continues to suffer from the psychological injury which arose from the lift incident;
(b)Nature of, and particular tasks involved in, the employment: the psychological injury occurred after the Applicant was trapped in a lift at her workplace during working hours when she was travelling from the third floor to the basement at the end of a working day. This shows a strong causal connection to the workplace with respect to the initial injury, but again, is not entirely helpful with respect to the issue of whether the Applicant continues to suffer from the psychological injury;
(c)Any pre-disposition of the employee to the ailment or aggravation: Dr Wong gave evidence that the Applicant had pre-existing anxiety, but experienced increased anxiety and depression as a result of the lift incident, and Dr O’Daly stated in his report of 16 October 2017 (Exhibit R7) that the Applicant’s personality construct may be one of the factors contributing to the continuation of her psychological symptoms. However, the medical evidence generally shows that the psychological injury was not caused by pre-existing factors unrelated to the workplace. In the Tribunal’s opinion, it shows that the psychological injury was the result of the Applicant’s employment – and continued to relate to the workplace, and specifically the lift incident;
(d)Any activities of the employee not related to employment: The evidence of Dr Ng, and Dr Atartis, supported by that of Dr Wong, indicates a connection that is most certainly “greater than minimal” and “substantially more than trivial” (Comcare v Power (2015) 238 FCR 187) with the Applicant’s employment. The Applicant does not appear to have engaged in activities outside of her employment which would have interrupted the causal connection between the Applicant’s psychological injury and her workplace. The Tribunal refers to its above discussion of Dr O’Daly’s reports (at paragraphs [199]-[202]) regarding his attempt to assign percentages to the factors which contributed to the continuation of the Applicant’s psychological injury. Despite the Tribunal’s reservations about assigning percentages as causative factors to a psychological injury, when the percentages are viewed as a whole, they predominantly relate to the Applicant’s employment, and specifically the lift incident. There is also little to no evidence before the Tribunal to conclude that the Applicant recovered from her psychological injury, and then suffered a new one as a result of the workplace meeting in April or May 2017, or as a result of factors outside of the workplace. Even if it could be said that the Applicant suffered stress from her legal claims, as suggested by Dr O’Daly in his first report, overall, the factors identified in both reports show a greater than minimal, and indeed substantial, continued connection to the workplace, and specifically the lift incident; and
(e)Any other matters affecting the employee’s health: As discussed above, the Applicant has a previous compensation claim before the Tribunal for wrist/ elbow/ shoulder injuries. She was undertaking a graduated return to work program, which she was due to complete the week of the lift incident. The Applicant also suffered a separate physical injury as a result of the lift incident, which (as discussed above) the evidence suggests she has recovered from. These injury claims are separate physical injuries, and in the Tribunal’s opinion, do not relate to the psychological injury, which was a separate injury.
Based on the above discussion and a detailed consideration of the evidence before it, it is the Tribunal’s conclusion that the totality of the medical evidence indicates that the Applicant continued to suffer from the Psychological Injury, which further continued to be contributed to, to a significant degree, by the Lift Incident. Accordingly, the Respondent is liable to pay compensation for reasonable medical expenses and incapacity payments.
DECISION
The Reviewable Physical Injury Decision dated 8 February 2017 (2017/0853) is affirmed.
The Tribunal sets aside the Reviewable Psychological Injury Decision (2017/2363) dated 11 April 2017, and in substitution finds that the Applicant continued to suffer from the Psychological Injury, and that liability should be accepted for:
(a)reasonable medical expenses under s 16 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) from 23 November 2016; and
(b)incapacity payments under s 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) from 12 February 2016.

I certify that the preceding 223 (two hundred and twenty-three) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr M Evans

......[sgd]..................................................................
Associate
Dated: 6 July 2018

Dates of hearing: 30 April - 4 May 2018

Counsel for the Applicant: Mr D Bruns

Solicitors for the Applicant: JDK Legal Services

Counsel for the Respondent: Ms C Dowsett

Solicitors for the Respondent: Australian Government Solicitor

[2018] AATA 2141

6 July 2018

Key Legal Topics

Areas of Law

Administrative Law

Employment Law

Legal Concepts

Jurisdiction

Statutory Construction

Appeal

Causation

Remedies

Dates of hearing:	30 April - 4 May 2018
Counsel for the Applicant:	Mr D Bruns
Solicitors for the Applicant:	JDK Legal Services
Counsel for the Respondent:	Ms C Dowsett
Solicitors for the Respondent:	Australian Government Solicitor