OBST and AUSTRALIAN POSTAL CORPORATION
[2010] AATA 53
•25 January 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 53
ADMINISTRATIVE APPEALS TRIBUNAL )
) Nos 2007/3910, 2007/5834
GENERAL ADMINISTRATIVE DIVISION ) & 2008/5504 Re REBECCA LOUISE OBST Applicant
And
AUSTRALIAN POSTAL CORPORATION
Respondent
DECISION
Tribunal Senior Member L Hastwell
Professor P L Reilly AO (Member)Date25 January 2010
PlaceAdelaide
Decision The Tribunal sets aside the decisions under review and in substitution decides that:
1. The decision of the 20 July 2006 in which APC ceased liability pursuant to ss 16 and 19 of the SRC Act with respect to Ms Obst’s ankle injury is set aside. The Tribunal finds that liability was ongoing.
2. The Tribunal sets aside the decision of 22 November 2007 with respect to Ms Obst’s claim that APC is liable in relation to Complex Region Pain Syndrome and finds that liability for her ankle injury should extend to liability for the subsequent development of CRPS.
3. The Tribunal sets aside the decision of 30 September 2008 that Ms Obst did not have a permanent impairment of her left ankle and substitutes the decision that Ms Obst does have a permanent impairment of her left ankle arising as a result of the original ankle injury and its sequelae and that her impairment is 11 percent under the relevant Comcare tables.
4. The Tribunal sets aside the decision of 20 July 2007 that the APC was not liable with respect to Ms Obst’s claim for psychological injury for the period 28 November 2006 and 12 March 2007 and finds that the APC is liable with respect to the psychological injury of adjustment disorder with depressed mood that she suffered during that period.
5. The Tribunal finds that it has no jurisdiction to deal with any psychological condition that Ms Obst suffered after she was certified fit to return to work by her medical practitioner as of 12 March 2007.
..............................................
L HASTWELL
(Senior Member)
CATCHWORDS
COMPENSATION – ankle injury – liability accepted then ceased – decision to cease liability set aside – permanent impairment considered – duration of impairment and likelihood of improvement – attempts at rehabilitation and treatment – ongoing limitation in movement and disability – permanent impairment established – decision set aside
COMPENSATION – Complex Regional Pain Syndrome – sequellae to accepted condition of ankle injury – criteria for diagnosis of Complex Regional Pain Syndrome considered – Comcare Guide criteria to be used for assessment of permanent impairment – pain specialists agree initial diagnosis of Complex Regional Pain Syndrome not appropriately diagnosed by use of Comcare Guide – liability established – decision set aside
COMPENSATION – psychological disorder – adjustment disorder with depressed mood – factors giving rise to psychological condition – ankle injury – pain and failure to recover within expected timeline – workplace issues upon return to work with modified duties – pre-existing vulnerability – existence of other stressors considered – work related issues materially contributed to onset of psychological disorder
JURISDICTION – psychological disorder – adjustment disorder – depression – second episode following shortly after resolution of prior period of adjustment disorder – whether there is a reviewable decision for the Tribunal to consider – consideration of reviewable decision – claim lodged prior to onset of second episode – did not review second episode – no jurisdiction – subject to fresh claim
Safety, Rehabilitation and Compensation Act 1988 ss 4, 6, 7, 9, 10, 14, 16, 19, 24, 27, 28
Lees v Comcare (1999) 56 ALD 84
Wiegand v Comcare (2002) 72 ALD 795
Comcare v Sahu-Khan [2007] FCA 15REASONS FOR DECISION
25 January 2010 Senior Member L Hastwell
Professor P L Reilly AO (Member)1. Rebecca Obst is an employee of the Australian Postal Corporation (APC). The Tribunal has been asked to review a number of decisions of the APC that have either ceased or rejected liability for claims by Ms Obst.
history of claims
2. Ms Obst’s first claim for compensation was made on 13 January 2006 (T8) and arose out of an ankle injury sustained by her in the course of her employment as a postal delivery officer with APC in 2005. That claim was accepted in January 2006 and then amended on 28 February 2006 to include “sinus tarsi syndrome, left ankle”.
3. On 5 March 2007, a decision was made to cease present liability for that injury under ss 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) (T47).
4. Ms Obst’s second claim was for a psychological injury, namely an adjustment disorder with depressed mood as a sequelae to her original ankle injury. That claim was received by Ms Obst’s employer on 15 January 2007 (T36) and rejected by the APC claims manager on 5 March 2007 (T47).
5. A reconsideration of the decision to cease present liability with respect to the ankle injury and to reject the application for compensation for a psychological injury was made by a senior claims manager of the APC on 20 July 2007. The reconsideration affirmed the original determination. It was forwarded to Ms Obst’s solicitor on the same date (T53). Ms Obst seeks review of both decisions by this Tribunal.
6. By letter dated 15 August 2007 Ms Obst, through her solicitors, sought an extension of liability in relation to her accepted claim for her ankle injury to include complex regional pain syndrome (CRPS) as a sequelae to the original ankle injury. APC denied liability for CRPS (T61) and, upon reconsideration, by a senior claims officer, that decision was affirmed on 22 November 2007 (T67). Ms Obst seeks a review of that decision to this Tribunal.
7. Ms Obst lodged a further claim on 6 June 2008 in which she sought compensation for permanent impairment pursuant to ss 24 and 27 of the SRC Act, such impairment allegedly arising from her accepted claim of left ankle injury (T71).
8. Liability for this claim was rejected by APC on 23 June 2008 (T72) on the basis that the medical evidence did not indicate that Ms Obst’s medical condition had significantly deteriorated to meet the criteria required for a whole person impairment of 10 percent under the SRC Act.
9. Upon reconsideration by a senior claims officer, that decision was affirmed on 30 September 2008. Ms Obst seeks a review of that decision by this Tribunal.
10. On 6 May 2009, Ms Obst withdrew the claim for review with respect to permanent impairment. The Tribunal then dismissed that application for review. Subsequently, and as a result of evidence given by Dr Bastian, the applicant sought to reinstate that application for review as the application had been dismissed in error. The respondent raised no opposition to this course. The Tribunal therefore, pursuant to s 42A(10) of the Administrative Appeals Tribunal Act 1975, formally orders that the application for review in Tribunal matter number 2008/5504 be reinstated.
the legislative scheme
11. Ms Obst’s entitlements stand to be assessed under the provisions of the SRC Act.
12. Section 14(1) of the SRC Act provides as follows:
“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.”
13. If the Commonwealth is found to be liable for an injury under s 14 of the SRC Act then there is a liability to compensate the employee under other provisions of the SRC Act.
14. Section 16 of the SRC Act provides for the Commonwealth to pay for the cost of medical treatment in relation to an injury. Section 16(1) provides as follows:
“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.”
15. Section 19 of the SRC Act provides for compensation for injuries resulting in incapacity. It provides a formula for weekly compensation during periods where, as a result of incapacity, an employee either cannot work at all or cannot work at the same level that they previously worked because of the compensable condition.
16. Section 24 provides for payment of compensation for injuries which result in permanent impairment. It provides as follows:
“24 Compensation for injuries resulting in permanent impairment
(1)Where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury.
(2)For the purpose of determining whether an impairment is permanent, Comcare shall have regard to:
(a) the duration of the impairment;
(b) the likelihood of improvement in the employee’s condition;
(c)whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; and
(d) any other relevant matters.
(3)Subject to this section, the amount of compensation payable to the employee is such amount, as is assessed by Comcare under subsection (4), being an amount not exceeding the maximum amount at the date of the assessment.
(4)The amount assessed by Comcare shall be an amount that is the same percentage of the maximum amount as the percentage determined by Comcare under subsection (5).
(5)Comcare shall determine the degree of permanent impairment of the employee resulting from an injury under the provisions of the approved Guide.
(6)The degree of permanent impairment shall be expressed as a percentage.
(7) Subject to section 25, if:
(a)the employee has a permanent impairment other than a hearing loss; and
(b)Comcare determines that the degree of permanent impairment is less than 10%;
an amount of compensation is not payable to the employee under this section.
…”
17. The degree of permanent impairment is assessed by reference to the Comcare Guide to the Assessment of the Degree of Permanent Impairment (the Comcare Guide). Section 28(4) of the SRC Act provides that when reviewing an assessment of permanent impairment, the Tribunal is bound by the Comcare Guide. The relevant Comcare Guide to consider in this case is the second edition of the Comcare Guide.
18. In this case there has been no finding as to any degree of permanent impairment as the review officer found that there could be no permanent impairment in relation to an injury for which liability had been refused. Alternatively, the review officer considered that the medical evidence showed that the impairment did not reach the threshold level of 10 percent.
19. Compensation under s 24 of the SRC Act is only payable for impairments which are permanent. Under s 4(1) of the SRC Act, “permanent” is defined as meaning “likely to continue indefinitely”.
20. Section 27 of the SRC Act makes provision for a payment for non-economic loss when an injury has resulted in permanent impairment and compensation is payable under s 24 of the SRC Act.
21. At the time of Ms Obst’s application for compensation for psychological injury and for her ankle injury, the definition of “injury” was as set out in s 4 of the SRC Act in the following terms:
“injury means:
(a) a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), being an aggravation that arose out of, or in the course of, that employment;
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment.”
issues
22. The issues to be determined in this case are:
·Whether Ms Obst should be entitled to continue to receive benefits both by way of payment of medical expenses and/or periodic weekly payments of compensation as a result of the ankle injury sustained in 2005.
·Whether Ms Obst suffers from the condition of CRPS and if so, whether liability should be accepted for the condition of CRPS.
·Whether Ms Obst suffers a permanent impairment, as defined by the legislation, arising out of her ankle injury. This will involve a consideration of whether she has a permanent impairment of 10 percent or more arising out of the ankle injury.
·Whether Ms Obst suffered a compensable psychological injury as a sequelae to her ankle injury, being an adjustment disorder with depressed mood.
·Whether the Tribunal has the jurisdiction to determine whether the period of depressive illness from which she suffered from mid to late March 2007 until the middle of 2007 is a compensable event and is capable of being dealt with in the context of her claim for psychological injury of January 2007.
background
23. There are a number of non contested facts in this matter which are of relevance and the Tribunal sets them out as follows.
24. At the hearing of the matter, the T documents for each of the applications for review before the Tribunal were received into evidence as Exhibits R1 and R2. The Tribunal will refer to relevant sections of the T documents when setting out some of the non contentious background to this matter.
25. Ms Obst was born on 21 March 1984. She completed her schooling in Darwin and then moved to Adelaide in 2002.
26. Ms Obst commenced work with APC in the transport section in March 2003. In this role she drove a number of vehicles including vans and trucks. She was classified as a permanent part-time employee.
27. In 2005, Ms Obst was prescribed anti-depressant medication after an incident involving her mother who, by all accounts, was psychiatrically unstable at the time.
28. On 19 December 2005, Ms Obst sustained an injury to her left ankle in the course of her employment as a postal delivery officer with APC. She stepped out of a van, half stepped on a gutter and rolled her ankle. The incident report is at T5. She initially took two weeks off work as a result of this injury.
29. Ms Obst reported an aggravation of the injury by way of an increase in the pain in her ankle while walking down stairs on 10 January 2006.
30. X-rays confirmed an inversion injury to her left ankle with no fracture (T7).
31. A claim for compensation was lodged by Ms Obst with respect to her ankle injury on 13 January 2006 (T8) and her employer, after reviewing available medical evidence accepted liability for a “talo-fibular ligament strain, left ankle”. Liability was accepted on 20 January 2006 (T12) for the injury sustained on 19 December 2005.
32. Ms Obst reported a further aggravation of the ankle on 6 February 2006 when she rolled her left ankle once more in the course of her employment (T13). She was seen by a medical practitioner for APC, Dr Jeffrey Graham, the following day who confirmed obvious swelling on the lateral aspect of her left ankle.
33. Ms Obst’s injury was initially treated conservatively. She underwent physiotherapy treatment and she was put on modified duties in the course of her employment.
34. In February 2006 APC, relying on a report from Dr Graham of 24 February 2006 (T15), extended liability for the left ankle injury to include “sinus tarsi syndrome, left ankle” as an accepted condition from 6 February 2006.
35. Ms Flordeliza Tiomico (now known as Flordeliza Honorica), a rehabilitation co-ordinator employed by APC, became involved with Ms Obst’s rehabilitation in February 2006.
36. Dr Graham referred Ms Obst for a steroid injection to the left ankle.
37. A steroid injection was administered to Ms Obst’s left ankle in March 2006. It was incorrectly administered in that anaesthetic was not used and it was a painful procedure. Ms Obst reported that the ankle did not improve.
38. Ms Obst’s ankle condition continued to trouble her. An MRI scan performed on 6 March 2006 showed extensive bone bruising in the anterior talus and talus neck and some bone marrow oedema (T18). Continued physiotherapy was recommended and Ms Obst was referred for orthopaedic assessment.
39. Dr George Dracopoulos, an orthopaedic surgeon, saw Ms Obst in March and April 2006. He diagnosed her as suffering from post-traumatic synovitis and ligament damage to the left ankle and he observed extensive bone bruising in the talus. He related this injury directly to the incident of December 2005 and he did not consider that there were any non-work related injuries or factors involved (T23). He recommended that an arthroscopy be carried out on her ankle. He considered the prognosis, with surgery, was good and he recommended that she cease work until after her surgery.
40. In March 2006 she first consulted with a new general practitioner, Dr Susan Stark. On 11 March 2006 Dr Stark prescribed Zoloft tablets for the treatment of depression. This was the first contact between Ms Obst and Dr Stark who continued as her general practitioner at all relevant times thereafter.
41. Ms Obst underwent surgery on her left ankle on 4 May 2006. Dr Dracopoulos carried out an arthroscopy and debridement of her left ankle. The cartilage was found to be intact with some mild synovitis that had to be cleaned out. At that point Dr Dracopoulos considered the prognosis was good. He recommended intense rehabilitation (T25).
42. On 28 June 2006, Dr Dracopoulos reviewed Ms Obst eight weeks post surgery and he confirmed that she was fit to return to sedentary work duties (T27). He expressed the view that if not required to walk or stand she could work a full day. He considered that on average it takes his patients about two months to recover from this sort of surgery but “Rebecca seems like she is going to be one of those that takes longer”.
43. In late July 2006, APC referred Ms Obst to see Associate Professor Bauze, an orthopaedic surgeon, for another opinion.
44. Ms Obst returned to work for five hours per day on three days a week in early July 2006. She reported further aggravation of her ankle when walking to the train and took one day off in July because of this exacerbation. When APC wrote the letter of referral to Associate Professor Bauze on 25 July 2006 she was working at the dead letter office at the Post Office in Victoria Square in the Adelaide CBD and she was working five hours per day on four days per week doing only seated clerical duties.
45. Initially, when she returned to work at the dead letter office in July 2006, Ms Obst was given some taxi vouchers to get to and from work. Once they ran out, she requested further vouchers through her rehabilitation counsellor, Ms Honorica. This request was made on 14 July 2006. A Mr Dunbar, who was Ms Obst’s case manager at the time, declined to provide more vouchers [transcript page 343].
46. The transport section was able to authorise some further vouchers when she moved there.
47. Associate Professor Bauze saw Ms Obst for the first time on 25 July 2006. This was for the purposes of a medico-legal assessment. She was accompanied at that interview by a woman known as Cristabel Vinall, who described herself to Associate Professor Bauze as “a support person”.
48. In a report to Ms Obst’s employer dated 26 July 2006, Associate Professor Bauze states that Ms Obst had reported to him that at the time that he saw her she was swimming two to three times per week and that her ankle ached and felt insecure. She reported that she still could not drive a manual vehicle or ride a bike. She complained of symptoms of her foot going purple and tingling and sometimes exhibiting burning symptoms inside the ankle and sometimes it felt cold. She continued to experience pain and aching in the ankle. He noted swelling in the ankle and that she walked with a limp.
49. In his report he expressed concerns about Ms Vinall’s attitude at that first meeting, stating that he found her to be “a rather sullen, rather aggressive and angry person who wants to interfere in the interview process”. Nevertheless, he found Ms Obst to present genuinely and he stated that he was “not aware” of any non-work related contributory factors (T29/53-54).
50. His opinion at that time was that Ms Obst continued to suffer from a painful left ankle. He commented as follows: “… the basic cause is a severe sprain of the ankle, possibly the inferior tibiofibula syndesmosis, and the bone bruise of the talus” (T29/53).
51. He also noted that her complaint also had “some of the features of chronic regional pain syndrome”. He expressed the opinion that she was capable of working five hours a day for five days a week in sedentary duties. He considered that she should not drive a manual vehicle or ride a bike and that she should not be walking more than 50 to 100 metres at that point in time.
52. On 29 June 2006, Dr Stark’s notes report that she reviewed whether Ms Obst should still be taking Zoloft which had originally been started in December 2005 by Ms Obst’s former general practitioner after an episode when her mother locked her in her house. Dr Stark’s notes report a stabilisation in Ms Obst’s mood and that Ms Obst had indicated to her that she would like to cease taking that medication “soon”. She and Ms Obst discussed the timing of the cessation of anti-depressant medication. The notes report “best to wait til return to work post workcover injury, as could be stressful”. She prescribed a repeat of the medication (T87).
53. In late July 2006, Ms Obst took an accidental overdose of a medication. She was admitted to the Royal Adelaide Hospital and discharged the next day.
54. A further MRI scan of Ms Obst’s left ankle was carried out in late August 2006 (T30/59). This reported an improvement in the clinical signs in her ankle. Some of the clinical symptoms appeared to have improved or resolved.
55. On 10 August 2006, Dr Stark carried out a further review and considered that Ms Obst could return to her pre-injury hours. Ms Obst returned to work in the workshop area of the transport department around early August 2006. She carried out administrative work within the workshop area.
56. Dr Dracopoulos reviewed Ms Obst on 1 September 2006 and provided a report to her employer on 22 September 2006 (T32/62). In that report he found that Ms Obst had been suffering from “complex regional pain syndrome affecting her left lower limb on top of some post-traumatic synovitis of the ankle”. He recommended that a pain specialist or pain clinic become involved. He commented that the MRI of late August 2006 “showed improved condition of left ankle”.
57. On 11 September 2006, Ms Obst’s workstation was moved from the workshop area into the conference room in the transport department. Her duties remained administrative in nature.
58. Dr Stark’s notes report that on 11 September 2006, Ms Obst reported that she felt bullied by some staff at work and had been moved from the workshop to an “isolated room”. Dr Stark spent 10 minutes on the phone discussing Ms Obst’s feelings of being bullied at work with Ms Obst’s rehabilitation officer, Ms Honorica. There was an indication that Ms Honorica said that she would speak to Ms Obst on the following day. Panadeine Forte was still being prescribed by Dr Stark for Ms Obst’s pain at that time.
59. On 14 September 2006, Dr Stark referred Ms Obst to Dr Quadros, a pain management consultant (T87/344).
60. Ms Obst continued to work on a rehabilitation program. She attended on Beachside Physiotherapy for rehabilitation between June 2006 and September 2006.
61. A report of Ms Marie Thornton, her physiotherapist (T33/63-65) of 22 November 2006, states that by November 2006 Ms Obst had begun gym work and had played the drums “including pedal work”. Physio treatment had ceased on 18 September 2006.
62. Ms Thornton conducted a review in November 2006. She reported that Ms Obst reported a “dull ache anterolaterally in left ankle”, describing her pain as ranging between 4 and 7 on the pain scale. Ms Thornton commented as follows:
“Rebecca is still swimming on alternate days, attends Body Balance classes and is able to exercise on the cross-trainer for approximately 5 minutes at a time. She can walk for around 5 minutes before symptoms worsen. Rebecca has attempted to drive her manual car around the block, and reports increased pain after this.” (T33/64)
63. At that review, Ms Thornton noted objective signs of limitation of movement in the left ankle particularly upon inversion and plantar flexion. Ms Obst’s inversion range was half that of the right ankle and she lacked 30 percent plantar flexion on the damaged ankle. Ms Thornton observed that her gait appeared to have deteriorated since the previous review and she had developed a painful callus on each foot. Ms Thornton recommended referral to a podiatrist and more intense physiotherapy. An ankle brace was recommended. She also suggested referral to a pain clinic.
64. In November 2006, APC decided to reintroduce Ms Obst to driving duties. A Return to Work Plan Stage 10 was prepared by APC (R8/FT9) and established on 27 November 2006. The new plan included that she could perform a “gold mail run” driving an automatic van. She was not required to load or unload the vehicle. Lifting above 1 kg in weight was prohibited. Her substantive hours were to revert back to her pre-injury hours being from 3.30 pm to 8.30 pm five days per week.
65. Ms Obst carried out the gold mail run for the first time on 27 November 2006. On completion of that run she complained of pain and swelling of the left ankle. Her general practitioner, Dr Stark, certified her as being totally unfit for work from 28 November 2006 and thereafter continuing until 12 March 2007.
66. Ms Obst attended upon Dr Stark on 28 November 2006. Dr Stark’s notes report that Ms Obst was not happy with the shift or the hours and that there was a lot of sitting around to do. She reports that Ms Obst reported feeling frustrated and bored and that she was not coping as well emotionally. She felt that she was being watched and scrutinised. She was teary. Dr Stark observed swelling around the lateral malleolus and general soreness across the whole ankle joint. She noted that there was no redness, but that she had a limp. She left a message for the rehabilitation officer, Ms Honorica, to contact her.
67. Thereafter, Ms Honorica stopped making regular contact with Dr Stark and did not return all of her calls.
68. On 21 November 2006, Dr Stark sent a referral to Professor Cherry at the Flinders Medical Centre Pain Unit, having established that Dr Quadros was not taking new referrals (T87/343). There was a considerable delay in the Flinders Medical Centre making an initial appointment for Ms Obst to attend upon that clinic. This was not due to any fault of Ms Obst, but was caused by delays in the public health system.
69. On 4 December 2006, Ms Obst attended upon Dr Stark once more. On that occasion, Dr Stark recorded that Ms Obst was teary and upset easily, that she was not going to the gym as often and she recorded other symptoms that she diagnosed as depression. In her notes she recorded that Ms Obst was having difficulty walking around shops, doing Christmas shopping, riding her bike and playing the drums because her foot could not find a comfortable position. She recorded that Ms Obst was in pain on a daily basis and could not get a comfortable position to sleep and that she felt that she needed time away from work to get herself together again.
70. She noted that Ms Obst’s father was coming over from Canberra for Christmas and that she would like to return with him for a visit. She had Ms Obst fill out the DASS questionnaire and she recorded an extremely severe level of stress on the DASS scale (T87/342).
71. Ms Obst did not return to work with APC after 28 November 2006. Dr Stark certified her unfit to return to work between 28 November and 30 December 2006 on the basis of “left ankle injury, flare up of swelling and pain” (T76/194). On 4 December 2006, Dr Stark assessed Ms Obst as being unfit from 4 to 21 December 2006 on the basis of “psychological stress from chronic pain and restrictions caused by left ankle injury”. She diagnosed her as suffering from an adjustment disorder with depressed mood (T76/195). She continued to certify her as being unfit to return to work on that basis until 12 March 2007.
72. In mid to late 2006, Ms Obst joined a band known as “A Take on Franklin” as their drummer. In approximately September 2006, Ms Obst commenced driving an automatic vehicle again. She swapped her manual Mitsubishi Lancer with the vehicle owned by her friend Cristabel’s father. She commenced driving his yellow Toyota Corona which was automatic.
73. APC commenced covert video surveillance of Ms Obst in late October 2006 and that surveillance continued intermittently over a period of almost two years.
74. At 6.23 pm on 18 December 2006, Ms Obst was observed by video surveillance to be unloading drum cases from the boot of the Toyota vehicle and carrying them into a practice studio. The drum cases were empty at the time. Ms Obst was attending upon a rehearsal of her band.
75. On 23 December 2006, Ms Obst caught the tram to Glenelg in company with Ms Vinall and her father and attended at a hotel. Her father was visiting Adelaide at the time as by then he was residing in Canberra.
76. Ms Obst attended upon Associate Professor Bauze for the purposes of a medical review of her orthopaedic condition on 22 January 2007. Associate Professor Bauze provided APC with a report relating to that consultation (Exhibit R21). Ms Obst was accompanied to the review appointment by Mrs Frances Vinall, the mother of her friend Cristabel. She was unaware that she was under surveillance as she entered and left Associate Professor Bauze’s rooms.
77. In mid January 2007, Ms Cristabel Vinall purchased a blue Toyota Hiace manual van from a mechanic by the name of David Burlison. Mr Burlison had made some improvements to that vehicle during the period that he owned it such that it was easy to change gears without using the clutch. The clutch only had to be used when shifting from neutral into first gear and then when reversing (Exhibit A8).
78. Ms Obst was given a lesson in how to drive that van by Mr Burlison at the time that Ms Vinall purchased the vehicle. This was to show her how to drive the van without using the clutch.
79. In mid January 2007, Dr Stark made contact with Ms Obst’s rehabilitation officer and spent some time on the phone trying to obtain approval for funding for Ms Obst to have some psychological treatment. No approval was forthcoming.
80. In the course of her interview with Associate Professor Bauze on 22 January 2007, Ms Obst did not mention to him that she was about to leave on an interstate holiday. She left on that holiday immediately after leaving his consulting rooms on 22 January 2007. On that date, Ms Obst was wearing an ankle brace.
81. There is further video surveillance of Ms Obst on 22 and 23 January 2007. She left Adelaide and travelled to the Elizabeth Shopping Centre and from there she drove to Mildura as the passenger in the vehicle. She travelled at all times in the vehicle that Ms Cristabel Vinall had purchased from Mr Burlison.
82. On Tuesday, 23 January 2007, she was observed to attend various locations in Mildura, including a service station and shopping centres. She was observed not to wear an ankle brace at the time. She departed Mildura and again was the passenger as the vehicle drove from Mildura to Hay, where she swapped into the driver’s seat. Ms Obst then drove the vehicle from Hay to Wagga, being a distance of approximately 268 kilometres, for a drive time of approximately two hours. In Wagga she replaced the ankle brace on her left ankle. While in Wagga she contacted the local police to say that she believed that her vehicle was being followed.
83. Ms Vinall and Ms Obst then drove from Wagga to Canberra, stopping in Gundagai, where they again observed that their vehicle was being followed by the surveillance vehicle. Ms Obst telephoned the police again to report that they were being followed.
84. Ms Obst stayed with her family in Canberra for two to three days, while Ms Vinall attended a course in Sydney. Ms Vinall then collected her upon the return trip and they travelled back to Adelaide.
85. While in Canberra, Ms Obst telephoned Dr Stark in a distressed state reporting that she had been followed to Canberra. Dr Stark recommended she see a general practitioner in Canberra “for support”.
86. At some time after his consultation with Ms Obst in January 2007, Associate Professor Bauze was shown surveillance reports and surveillance footage by APC and he also had a verbal discussion with a solicitor acting on behalf of APC. He then provided a further report of 1 March 2007 to APC (T46) in which he opined that Ms Obst’s self report of her level of pain and disability and incapacity was inaccurate. He expressed the opinion in this report that that her claimed level of inactivity and incapacity for home duties and at work were unrealistic and he expressed the opinion that she was fit for full-time alternative duties provided to her by APC as described in his earlier report.
87. Ms Obst sought the assistance of a psychologist, Fiona Huppatz, in January 2007. She was then subsequently referred by Dr Stark to a second psychologist, Christopher Wigg. She commenced consultations with him in early February 2007. She was not provided with any funding from APC with respect to her psychological treatment.
88. On 1 March 2007, Dr Stark provided a certificate that Ms Obst could start a graduated return to work on 12 March 2007.
89. On 5 March 2007, Ms Obst’s claim for a psychological injury was rejected and APC notified her that they were ceasing present liability with respect to her ankle injury, pursuant to ss 16 and 19 of the SRC Act. The notification was sent by post. Ms Obst did not take that letter from her letter box and open it until 8 March 2007.
90. On 8 March 2007 Ms Obst was given notice of a proposed Disciplinary Inquiry into “serious breaches on your part of the Australia Post Code of Ethics”. She was suspended from duties pending the outcome of that inquiry. The Notice of Inquiry was served upon her personally when Mr Gigney and Mr Edwards attended at her home premises at Glenelg to give her the Notice of Inquiry. They did not give her prior notice of their intended visit to her home.
91. Ms Denise Isola was appointed by APC to conduct the proposed Disciplinary Inquiry.
92. A Disciplinary Inquiry was convened on 16 March 2007. Ms Obst attended the inquiry with a union representative, Nick Townsend. Ms Obst was not provided with the surveillance footage for her own consideration prior to her attendance at the hearing or at the hearing. She wrote to Ms Isola on the 14 March 2007 requesting some further information about the inquiry (R15/DI2) and in particular wanting a referral to the rule or act or code that limited or determined who she could have accompany her to the enquiry. Ms Isola did not respond in writing but spoke to the union representative, Mr Townsend.
93. Ms Obst requested that she be provided with the surveillance material prior to the Disciplinary Inquiry, but her request was refused.
94. The Disciplinary Inquiry was conducted by Ms Isola. Ms Obst became distressed in the course of the inquiry and walked out. The Disciplinary Inquiry did not continue.
95. Ms Obst then declined to resume the inquiry other than by letter or with a solicitor present. She remains on suspension at the date of the hearing before the AAT and had not, at the time of the hearing, returned to her employment as the terms of resumption of the inquiry cannot be agreed between the parties.
96. On 21 March 2007, Ms Obst was taken to the Flinders Medical Centre and was detained overnight as a result of an alleged attempted suicide. She was discharged from detention and released from the hospital on the morning of 22 March 2007.
97. She was referred by Dr Stark to a psychiatrist, Dr David Coyte, on 22 March 2007 and he saw her for the first time on 3 April 2007. She continues to be his patient.
98. Dr Coyte commenced Ms Obst on anti-depressant medication in mid 2007 and she continues to take that medication. She still sees Dr Coyte.
99. In July 2007, Ms Obst made application to the SA Housing Trust seeking an urgent consideration of accommodation. A report prepared by Dr David Coyte and sent to the SA Housing Trust dated 3 July 2007 reported that she was experiencing severe anxiety, panic attacks, depressed mood and insomnia because of the loud, abusive and assaultative behaviour of her neighbours. His letter did not mention any work related issues (T92/656).
100. Ms Obst attended her first appointment with the Flinders Medical Centre Pain Clinic in October 2007. She was under the care of Professor Cherry who, after having various tests conducted including a psychological assessment of Ms Obst, diagnosed her as suffering from CRPS of the left lower limb with an orthopaedic complaint with respect to her left ankle.
101. Ms Obst was seen by Dr John Bastian for medico-legal purposes in November 2007. He supported the diagnosis of CRPS (Exhibit A10).
102. Associate Professor Bauze does not consider that Ms Obst suffers from CRPS.
103. On 28 November 2007, Ms Obst was seen by Dr Alan Cotton, a psychiatrist who conducted a medico-legal assessment at the request of solicitors acting for APC. Covert surveillance was carried out as she arrived at and then left Dr Cotton’s rooms on that occasion and then at other times during that day. She was seen to use the walking stick as she left Dr Cotton’s rooms but then not on two other occasions when she was observed that day.
104. Covert surveillance showed Ms Obst arriving at the Flinders Medical Centre on 29 November 2007 and she was observed to use a walking stick as she walked to and from the Hydrotherapy Centre. Later in the day she was seen to attend a local bank and a shopping centre and she did not use the walking stick.
105. In August and September 2008, Ms Obst was observed on a number of occasions assisting her friend Cristabel Vinall with a magazine delivery round. She was observed on at least one occasion attending at premises at Mile End on her own to collect the boxes of magazines.
the hearing
106. The hearing was conducted over a number of days. Ms Obst gave evidence and called a number of witnesses including medical witnesses, Cristabel Vinall and her mother, Frances Vinall. APC called a number of lay and medical witnesses. The Tribunal was also shown surveillance footage of Ms Obst which was received into evidence (Exhibits R3, R5, R6 and R7). A number of other exhibits were tendered that included a large volume of medical notes relating to Ms Obst (Exhibit R10). Ms Obst had prepared two statements that were received into evidence as Exhibits A2 and A3.
107. Her statements described the pain and disability that she claims to have experienced since her ankle injury and elaborated on issues including the events surrounding her return to driving duties in November 2006, her involvement with the band and the trip to Canberra in early 2007.
108. Ms Obst was 25 years of age at the time of the hearing.
109. Ms Obst, in giving her evidence, corrected an aspect of her statement. She said that she had been first prescribed anti-depressant medication in 2005 by a general practitioner that she saw prior to seeing Dr Stark. She saw this practitioner on only one occasion. She commenced taking this medication because of “issues with my mum”. She thought that she took the medication for three months but subsequently in her evidence she indicated that she may have taken it through to the middle of 2006 and it became apparent from Dr Stark’s evidence that was correct. She resumed taking anti-depressant medication after it was prescribed for her by Dr Coyte in mid 2007 and she continues to take that medication.
110. She explained to the Tribunal the circumstances surrounding the overdose of medication in July 2006. She said that she was in extreme pain because of her ankle and at the time she did not have any pain medication. She was having trouble sleeping so she took a number of sleeping tablets. Her friend, Cristabel Vinall, took her to the Royal Adelaide Hospital. She was kept in hospital overnight.
ms obst’s return to work in the transport branch
111. After her brief period working in the dead letter office in July 2006, Ms Obst returned to work in the transport branch in August 2006. She was initially based in the workshop with the mechanics. She told the Tribunal that she enjoyed working there. She was then approached by the receptionist who said that the manager of transport, Mr Dean Edwards, had said that she must move to the conference room and work alone so that her work could be monitored.
112. She said that this made her feel terrible as she was working as hard as she could in the workshop. The receptionist had also told her that Mr Edwards believed that she was not doing enough work.
113. When cross-examined about the shift to the conference room and the fact that in her claim for psychological injury she used 11 September 2006 as the date when she first became depressed and anxious (T36/69), her response was “that was the day I was isolated in the conference room” [transcript page 157].
114. She told the Tribunal that in September 2006, she was still unable to do many of the activities that she had previously enjoyed doing. She could swim and do some light work at the gym and she was doing some work with the physio, but there were things that she had previously enjoyed doing that she could no longer do. She said:
“… I used to run a lot. I used to ride my bike a lot. Even things like yoga, I couldn’t balance on my ankle …” [transcript page157]
115. She continued to suffer ankle pain and other symptoms in her ankle throughout this time.
116. While sitting in the workshop in transport she had her own desk which was situated near the chief mechanic’s desk and she carried out clerical work for the chief mechanic.
117. She was then moved to the conference room where her desk was, in her estimation, around 50 metres from where she had been situated previously. Management took the view that her work remained the same. However, Ms Obst made it clear in her evidence that her duties did change in that she was now directed to carry out work by the receptionist and no longer did work for the mechanics. She felt she had been accused of not working. Her evidence was that, from that point in time, she felt she was being watched by her superiors.
118. She said that the receptionist, when telling her that she had been directed to work in the conference room, said to her:
“Dean told me to come and tell you that you’re to be moved into the conference room by yourself so that he can watch the amount of work that you do” [transcript page 168]
119. She was distressed by this move and spoke to Dr Stark that same day to whom she reported that she felt “bullied by some staff. Has been moved from workshop to isolated room” (T87/344).
120. Dr Stark telephoned Ms Honorica on 11 September 2006 with respect to this issue. Ms Obst recalls a meeting with Ms Honorica and Mr Edwards the following day, 12 September 2006. She claims that Mr Edwards in that meeting confirmed that she had been put in that room so that her work could be monitored [transcript page 167].
121. Ms Honorica’s notes and her own subsequent evidence to the Tribunal confirmed that a meeting did take place on 12 September 2006 after Ms Honorica had a telephone discussion with Dr Stark and that Ms Honorica was aware that Ms Obst felt bullied and that she felt as though she had been wrongly accused of “not doing any work” by a co-worker [transcript page 346 and T83/293]. Ms Honorica's notes do not record that Mr Edwards was present.
122. Ms Obst remained working in the conference room for two weeks doing work for or under the direction of the receptionist, Ms Masters. She was then moved to do some work with Mr Stockley. She worked for him until she carried out the gold mail run in November 2006. Her hours were not changed until she was asked to commence the gold mail run.
123. Her evidence was that from 11 September 2006 onwards, she felt she was being watched constantly by her superiors and she felt she had been accused of “not working” [transcript page 167]. She said this was because of what the receptionist, Ms Masters, had told her at the time that she had moved to the conference room. She agreed that none of her bosses actually told her she was not working properly, but she described herself as being “already emotionally distressed at that time” [transcript page 167].
124. She believed that while she was using the conference room other staff did not use the room and her understanding was that Mr Edwards directed staff to not use the room as a thoroughfare while she was there although he would go through the room. The receptionist’s office was close to the conference room. Ms Obst’s perception was that the receptionist worked with her door closed.
125. Ms Obst’s perception was also that she could have been located in other offices to do her work and that other computer stations were available. She did not accept the contention put to her in cross-examination that the only reason she was put in the conference room was because that was the only room where a computer was available for her to do her work. She believed she was there so that her work could be monitored. She was never directly told why she had to sit in that particular room [transcript page 32].
126. She was moved to work with Mr Stockley after around 2 weeks when she was given the task of helping him with his overload. She felt much happier working with him and had a good relationship with him. She worked with him until she did the gold mail run on 28 November 2006.
127. She recalls September 2006 as being the time when she began to experience “emotional type feelings or psychological symptoms … I was upset about the pain in my ankle and the restrictions it caused … I was also stressed and frustrated because I was not getting better …”
other evidence about the move to the conference room
128. Ms Honorica gave evidence to the Tribunal about her involvement with Ms Obst. She was Ms Obst’s rehabilitation counsellor throughout the relevant period. A statement prepared by her was tendered as Exhibit R8. Her case notes and the various Return to Work Plans that she had prepared for Ms Obst were also available to the Tribunal (T82).
129. In her statement that had been prepared for her and signed by her some months prior to the commencement of the hearing she stated: “In September 2006, the Applicant’s workstation was relocated; her work duties remained the same”.
130. Her written statement contained no other reference to what occurred when Ms Obst moved to the conference room in September 2006 or the reasons for her move.
131. Ms Honorica acknowledged in her evidence that she had omitted to include in her statement details of her contact with Ms Obst and with Dr Stark on 11 and 12 September 2006. She was referred to her notes of the phone conversation with both Dr Stark and to her notes of her meeting with Ms Obst on 12 September 2006. She confirmed the accuracy of the notes. She acknowledged that she was made aware that Ms Obst felt bullied and isolated.
132. She explained that her statement had been prepared by a lawyer and it was the legal team who determined what was put in that document.
133. She explained that when she said that Ms Obst’s duties did not change when she was moved to the conference room, she merely meant that they remained in the category of clerical rather than driving duties.
134. Mr Damien Gigney gave evidence for the respondent. He is the manager of operations at the transport branch at APC in Adelaide. He held that position in 2006 when Ms Obst returned to work in the transport branch.
135. His statement, prepared prior to the hearing, was Exhibit R12. He was involved in the relocation of Ms Obst to the conference room in September 2006. His written statement dealt briefly with that issue in the following terms:
“…
23. Around September 2006 , Ms Merrilyn Masters … advised the Applicant of the relocation back to the administration area. The Applicant was assisting Ms Masters with PT35 data entry (vehicle maintenance record).
24.The location of the Applicant’s workstation was varied in response to computer and office availability.
25.The Applicant’s work location could involve sitting in an office with another occupant or in the conference room at Transport when no other office was available.
26.The conference room is used by staff from time to time; it is not an isolated room.
27. The duties in the workshop and administrative areas were virtually identical.
…”
136. In giving evidence to the Tribunal he acknowledged that Ms Obst was moved to the conference room because of a “work performance issue” and that she was moved to the conference room so that she could be “managed closer” [transcript page 399]. He said that the issue of her work performance was raised by Ms Masters who felt that Ms Obst’s work was not being done to her satisfaction.
137. Mr Gigney was then referred to an email that he had sent to the claims manager who was investigating the claim for psychological injury made by Ms Obst in January 2007.
138. That email was in response to a very specific query from the claims manager as to the reason for Ms Obst being moved to the conference room in September 2006.
139. In his responding email headed ‘”Rebecca Obst Stress Claim”, Mr Gigney stated that “the move in location was for operational reasons”. His email gave no other indications as to the reason for the move. He did not mention the need to monitor her performance or of her alleged unsatisfactory performance.
140. It was put to Mr Gigney in cross-examination that he must have understood that it was important that he was accurate in his email response to the claims manager as an investigation was taking place with respect to her claim for a psychological injury in which 11 September 2006 had been pinpointed as the date of the onset of the injury. He acknowledged that and responded by saying that in his mind he considered an operational issue to include a performance issue.
141. Mr Gigney said that he did not instruct staff to avoid going through the conference room while Ms Obst was working there and furthermore he personally thought the conference room was a preferable environment. He commented in his evidence as follows:
“I sensed she was happier to be in the workshop, out in the – well, the admin area in the workshop, but I didn’t think she was totally upset by being in the conference room because it was, as I said, it’s nearly always occupied by someone. And it’s got the amenities close by; it’s got a female toilet close by, it’s got the photocopier, it’s got the fax machine, closer than it has out in the workshop so all the administrative options are greater as well as your amenities. You’ve got tea and coffee and a fridge right next door, basically, so …” [transcript page 428]
142. Mr Ronald Edwards, who was the manager of the transport branch, provided a statement to the Tribunal (Exhibit R23) and also gave evidence. He could not recall the reason for Ms Obst being relocated to the conference room in September 2006. He could recall having seen Ms Obst sitting in the conference room and he could recall making comments to her when he walked through the conference room. He could remember telling her to “elevate” her foot.
the gold mail run – the evidence
143. The next key event upon which the examination of Ms Obst’s concentrated was her last day at work, being the day that she drove the gold mail run in late November 2006.
144. Paragraphs 1 to 10 of her statement (Exhibit A3) elaborate on her experience of the first gold mail run.
145. A case conference was held between Ms Obst, Dr Stark and Ms Honorica on 13 November 2006. Notes of that meeting are contained in Ms Honorica’s case notes (T83).
146. Ms Honorica’s notes record that Ms Obst was cleared to do the “gold pick up and delivery without lifting”. The notes of that meeting also record that Ms Honorica was to go with Ms Obst on the first day. The notes were contained in her Return to Work Plan Stage 9.
147. The run was to start on 27 November 2006. There is no evidence that Ms Honorica attended with Ms Obst on the first day of the run.
148. As part of the plan to get Ms Obst back into driving duties, a risk assessment was carried out by Mr T Drew, an exercise physiologist, on 24 November 2006 with him giving Ms Obst some training on how to get in and out of a vehicle. His assessment is at Exhibit R8/FT8. It involved strategies for avoiding pressure on her left foot when getting in and out of the van and how to position her foot while driving the van.
149. A further Return to Work Plan Stage 10 was completed by Ms Honorica on 27 November in which it was recorded that between 28 November 2006 and 9 January 2007 Ms Obst had been cleared to perform restricted duties and a work site assessment had been carried out to provide Ms Obst with assistance in driving vans (Exhibit R8/FT9).
150. In Ms Honorica’s statement (Exhibit R8) she records that Ms Obst was displeased about her change in work hours. Prior to this she had been working 11.30 am until 4.30 pm. The hours were to change to 3.30 pm until 8.30 pm under the new return to work plan that commenced on 27 November 2006.
151. In her statement (Exhibit A2) Ms Obst (at paragraph 52) comments as follows:
“In about late November 2006 I was doing a particular driving run where I had to drive from Mile End to Salisbury, then from Salisbury to town and then back to Mile End. I was not involved in the loading or unloading of the vehicle, which I would have done if it weren’t for my injury. I found the job very frustrating because I could not participate in the loading or unloading. I only did the job for a day or so even though I was supposed to continue doing it until Christmas. I felt continually under observation.”
152. In her evidence to the Tribunal Ms Obst described the gold mail run in the following terms:
“… it was helping the other drivers get the express mail into the mail exchange in time, as it was Christmas time – around Christmas time, we have a lot of mail and a lot of overloads, so I – my duty was to drive a van to Salisbury and collect the gold mail from my peers – drivers, and truck drivers, and take it into town so it would get into the mail exchange in time to be sent to its destination.” [transcript page 31]
153. She explained to the Tribunal that the reason she ceased doing the gold mail run after only one day of doing that run was because of her frustration at not being able to participate in the loading or unloading, but also because her ankle was painful and swollen. Having her foot in the foot well of the vehicle aggravated her ankle condition.
154. She explained her reactions to the gold mail run in the in the following terms:
“… It was extremely depressing, I guess I could say, because I was watching my peers do my job, the job that I loved to do. I couldn’t help, I felt useless, pretty much. I couldn’t help my peers.
Was your job, at that time, to assist with the loading and unloading of parcels or simply to drive the truck?‑‑‑Simply to drive the automatic van.
I see. And when you’ve given evidence just then that you were unable to help, you’re referring to the unloading and loading of the van, are you?‑‑‑Yes.
I see. Is that a job you normally would have done if you weren’t injured?‑‑‑Yes, it is.
Is that the job you had done in the past?‑‑‑Yes, it is.
I see. You say in your statement that you woke up the next morning and found that your ankle was sore and swollen, and you also say that it had been a very hot day the day before. Did you go and see your general practitioner, Dr Starke, the next day?‑‑‑I think so, yes.
Do you remember why you went to see her?‑‑‑I needed her to document my pain in my ankle, the swelling, and I needed to discuss with someone how I was feeling.
Emotional?‑‑‑Yes.
Do you remember what you told her?‑‑‑I don’t know, I’m sorry.
Do you think it was something similar to what you’ve just told us as to how you were feeling, watching others do your work for you?‑‑‑Yes.” [transcript page 33)
155. In her supplementary statement, Ms Obst elaborated on why she had been so distressed by doing the single gold mail run (Exhibit A3). When she arrived back at the depot it was 6.15 pm. There was then nothing further for her to do until her shift finished at 8.30 pm and so she sat idle in the workshop for some hours until her shift finished.
156. After one day she felt that she could not “emotionally and physically” do the job [transcript page 164]. When questioned about her emotions at the time her response was as follows: “I was in pain. I was frustrated. I was watching everyone – everybody else do the duties that I loved doing. My hands were tied, I could not do it.”
157. Ms Obst also repeatedly spoke of a feeling that she was being watched and scrutinised by her superiors from September 2006 onwards. In her mind they had accused her of not working [transcript page 170].
158. She recalls ringing Damien Gigney, her supervisor, on 28 November 2006 and then going straight to see Dr Stark. She said her left ankle was swollen after the day of doing the gold mail run. She admitted telling Dr Stark on that same day that she would prefer to start the run earlier so that she could go home after the gold mail run. She explained to the Tribunal this was because she felt she could be more productive working in the office.
159. In her statement (Exhibit A2) at paragraph 52 she comments:
“I was not involved in the loading or unloading of the vehicle, which I would have done if it weren’t for my injury. I found the job very frustrating because I could not participate in the loading or unloading. I only did the job for a day or so even though I was supposed to continue doing it until Christmas. I felt continually under observation.”
160. She said that she was also in constant pain when doing the gold mail run and in a fairly emotionally unstable state.
161. When asked why she felt she was being watched she claimed that Mr Edwards would make “smartaleck comments” every time he walked past her. When the Tribunal asked about what these comments were she said they were comments such as “So how are you doing today? Are you going to work today?”. She interpreted these comments negatively.
162. Ms Obst was questioned at length with respect to her reasons for ceasing work the day after she did the gold mail run for the first time. She consistently stated that it was a combination of her psychological condition and her ankle problem that culminated in her ceasing work at that time. At the time, the pain in her ankle fluctuated from bad to worse to severe and she found it distressing to watch other people doing her work when she could not do it.
163. When asked why she could not return to work two to three days after her first attempt at this run, she said that she was still in constant pain with her ankle and in an emotionally unstable state.
164. Ms Obst commented that she was still in pain on and off when giving evidence. The pain varies depending on what she does. She denied that there was any other reason why she ceased doing the gold mail run at the time. She acknowledged that she was in a band at the time, but said that there was no connection between that and her ceasing to do the gold mail run.
165. Ms Obst attended Dr Stark again on 30 November 2006 and then on 4 December 2006. On 4 December 2006 she spent some time talking to Dr Stark about her emotional state. Her evidence was that she had been feeling teary and easily upset for two and a half months and that everything that she related to Dr Stark on 4 December 2006 was accurate. She was experiencing nightmares and she could not understand why her ankle was not improving.
december 2006 until january 2007 – associate professor bauze and the trip to canberra
166. Covert surveillance evidence was taken of Ms Obst on 18 December 2006 where she is observed unloading drum cases from a vehicle and carrying them into premises.
167. When confronted with this surveillance evidence of her carrying drums into premises, Ms Obst acknowledged that the person in the DVD was her and that on the occasion she was attending a band rehearsal at the Fish Shop Studios in Port Adelaide. Her evidence, which was not disputed, was that the drum cases that she was carrying were empty because a fellow band member had arranged to have her drums fixed and she was bringing the cases to rehearsal so that the drums could be put in them.
168. On 21 December 2006, Ms Obst reported to Dr Stark that she was still anxious and not sleeping and that she felt someone was watching her “A person sitting in a dark car” (T87/342).
ms obst’s involvement in a band
169. In her supplementary statement (Exhibit A3, paragraphs 29-43) Ms Obst provided some information about the band which had not been provided in her initial statement.
170. She joined the band called “A Take on Franklin” in mid to late 2006 a few months after her arthroscopy in 2006 at the request of one of the band members. She has played drums since was 15 years of age and she also enjoys playing the guitar. She agreed that the band prepared and recorded a CD in late 2006 into early 2007.
171. When asked how often she would do band practice, she commented:
“The guys in the band would practice without me. I couldn’t make it a lot of the times. It was a lot less than they liked. I just didn’t show up or when I did, I’d leave significantly early. There was a point in time where they wanted to kick me out of the band because they said I was unstable and couldn’t fulfil my obligations as their drummer.” [transcript page 45]
172. When asked how it made her feel playing in the band, she said it made her feel a bit better “… but then I couldn’t control my thoughts and they’d get sidetracked and I just couldn’t be there any more” [transcript page 45].
173. She said that sometimes she missed band rehearsals and only made it to band practice once a month. She said sometimes the whole band missed rehearsals, for example they had a very long gap when a band member was overseas.
174. The band has recently produced a second CD.
175. She was questioned at length as to what she did with her feet when playing the drums. She remained consistent in explaining that she did not have to use her left ankle in any significant way when playing the drums. She rests her left foot on the high hat pedal and on the drum kit.
176. She described herself as an alternate rock drummer and certainly not “heavy metal in style”. She said that the left leg is used to raise the high hat to make the cymbals tap and if she does have to raise the high hat she does it by lifting her whole leg and hip rather than using her ankle. She demonstrated this to the Tribunal. She is then able to maintain her ankle in a more or less static position. She was adamant that her style of drumming is such that she does not use the high hat in a heavy way, nor does she use it very frequently.
177. When playing with the band she rests her left foot on the high hat cymbal stand as it is comfortable and sometimes she takes it off the pedal and puts it on top of the bass drum. She often does this during practice because her ankle swells.
178. In a 45 minute performance, which is the maximum length of any performance, she said that she may need to move her left leg up to 10 times to create a cymbal effect.
179. She has no facility to play drums at home and enjoys playing the guitar at home alone.
180. She acknowledged that the band has performed publicly on a number of occasions. Their first public performance was in early 2008. She was surprised that it was alleged that she had not mentioned the band activities to Associate Professor Bauze. She said that when she saw Associate Professor Bauze on 22 January 2007, she was confident that she had told him about her involvement with the band. Her evidence on that point was as follows:
“And you’re quite sure you told him on that occasion about your involvement in the band?‑‑‑Yes, I am.
Why are you so sure?‑‑‑Because I explained to him that I played the drums, and he would ask me questions about how I play them.
Are you sure you’re not mixing that up with another doctor?‑‑‑No, I’m positive it was him.” [transcript page 68]
181. She agreed that the band has performed publicly at a number of venues. She named a number of venues, the Squatters Arms, the Exeter, the Joiners Arms, the Rex and the Grace Emily Hotel. She estimated the band had played publicly once or twice every two to three months in the last three years, but that there were periods when they had long breaks between practices and performances.
182. Her evidence was that she has received no payment at all for her involvement with the band. The other members of the band receive payments for performances, but she considered that it was “illegal” for her to do so in her current circumstances.
183. Ms Obst acknowledged that on 23 December 2006 she also went to the Grand Hotel with her father and two friends. When asked whether she considered this to be a social occasion, her answer was that it was a “family gathering”.
consultation with associate professor bauze and the trip to canberra
184. Ms Obst had an appointment to see Associate Professor Bauze for a second time on 22 January 2007.
185. It is common ground that she did not mention to Associate Professor Bauze that immediately after seeing him, she and Ms Vinall were leaving on a trip to Canberra and Sydney.
186. She said that she was in the habit of taking a Panadeine and a Panadol to assist with pain prior to band practices and that on that particular occasion that she was seeing Associate Professor Bauze in January 2007 she can recall that she only took Panadol because she expected him to carry out some movement tests on her ankle.
187. She recalled it as being a hot day when she saw Associate Professor Bauze. She claims to have found the meeting with Associate Professor Bauze distressing and she said that his history of what she told him and as set out in his report at T44/82 was not entirely correct. She took Frances Vinall, Cristabel’s mother, with her to this meeting.
188. She claimed that Associate Professor Bauze “made her feel horrible, he didn’t let me speak, he was too busy telling me I was going to end up in a wheelchair and that I was an invalid”. She commented:
“He did interrupt me on a lot of occasions. He did try and put words into my mouth but I would not let him, and he seemed to become agitated with me and that’s when he started to say the things he did.” [transcript page 70]
189. When asked why she did not put this information about Associate Professor’s Bauze’s attitude towards her in any of her statements provided to the Tribunal, she said it was because it was too upsetting to think about.
190. She told the Tribunal that Associate Professor Bauze misrepresented what she had said to him. She gave an example where he had said she had commented that she would not do the washing and she said that she said she would “rarely do the washing”.
191. She claimed she was tearful immediately after leaving Associate Professor Bauze’s rooms, but acknowledged that the DVD shows her looking quite cheerful when she came out to the street from his rooms. She said that Mrs Frances Vinall had cheered her up as she left the rooms and that she had been very supportive to her.
192. Her explanation for not disclosing details of the impending trip to Associate Professor Bauze was “he didn’t really give me a chance to speak … he had made me feel upset – very upset.”
193. She pointed out that Dr Stark was aware of the intended trip and had encouraged her to go because she had family in Canberra.
194. Ms Obst subsequently made some notes on a copy of Associate Professor Bauze’s report of 23 January 2007 commenting on what she considered to be inaccuracies and mis-reporting (Exhibit A14). She had produced this annotated report at the Disciplinary Inquiry that took place in March of 2007.
mrs frances vinall’s evidence about the consultation with associate professor bauze
195. Mrs Frances Vinall gave evidence to the Tribunal. She confirmed that she attended the appointment with Ms Obst on 23 January 2007 and took notes, but she did not produce those notes to the Tribunal. She claimed that Associate Professor Bauze in the course of the statement had made words to the effect of Ms Obst wanting to be an invalid and wanting to be in a wheelchair. She said he made it as a statement. She claimed that he made the following comments:
“The things I remember distinctly, that I would never forget are, “So you’ve been a lazy person” –one or two words might be not exact but they’re almost exact – “so you’ve been a lazy person who has stayed in bed all day and let other people make excuses” – there’s another word and I’ve forgotten it – “for you.” Just let me think, there was else major. It’s gone out of my head. “You’ve stayed in bed all day, been a lazy person, other people – and let other people make excuses for you.” There’s something I’m forgetting there.” [transcript page 498]
196. She accused him of using “loaded language”. She claimed that Ms Obst cried in front of Associate Professor Bauze. She claimed that Ms Obst was “despairing and distressed” after the appointment. She said that she wanted to stop the meeting between Ms Obst and Associate Professor Bauze, but was told by Associate Professor Bauze not to interject.
197. She said that when they left the meeting she tried to make Ms Obst feel better and calm her down.
198. She claimed to have never seen the report of 23 January 2007 that reported on the interview, nor had she ever watched the relevant surveillance DVDs.
199. She could not recall whether she told Associate Professor Bauze that she intended to make notes.
200. There were other aspects of the interview that she could not recall. She could not recall whether there was any discussion between Associate Professor Bauze and Ms Obst, for instance about what Ms Obst did on a day-to-day basis, whether she cleaned the house etc. The words that she particularly recalled was his statement that Ms Obst wanted to be or was an invalid and wanted to be in a wheelchair. She claimed to have never discussed any of her evidence with Ms Obst or her daughter.
201. She claimed to have sent letters to APC and to the Medical Board complaining about Professor Bauze’s behaviour in the course of this consultation, but she was not sure whether she had ever received a reply. She had not kept copies of the supposed complaints.
202. Several attempts were made to recall Mrs Vinall to give evidence in relation to her own prior experience when she attended upon Associate Professor Bauze for a medico-legal assessment arising out a claim that she had made for compensation. She did not return to give evidence for medical reasons.
the trip to canberra
203. Immediately following the consultation with Associate Professor Bauze on 22 January 2007, Ms Obst and Ms Vinall travelled to Canberra in Cristabel’s van.
204. Ms Obst was questioned at length about many aspects of this particular journey and the surveillance evidence available to the Tribunal with respect to portions of this journey.
205. After going first to a service station and then the Elizabeth Shopping Centre, Ms Obst and Ms Vinall travelled to Mildura where they spent the night. When questioned about why she appeared to be in such good spirits when she was at the Elizabeth Shopping Centre, Ms Obst explained that she was looking forward to seeing her father in Canberra. She acknowledged being seen in the surveillance DVD carrying shopping bags and at one stage carrying what appeared to be a heavy container of water.
206. She admitted driving for a section of the journey from Balranald to Wagga. She told the Tribunal that she did so because Ms Vinall needed a break.
207. She agreed that the surveillance evidence showed that she was wearing her blue tubular ankle support when she saw Associate Professor Bauze and that she was not wearing it on the following day. She attempted to explain this by saying that she specifically recalled that it was a hot day when she saw Associate Professor Bauze as she could recall that she was unable to wear long pants on the day and that the next day was a cooler day.
208. Meteorological evidence provided to the Tribunal subsequently established that this was not the case and that it was cooler in Adelaide on 22 January 2007 than in Wagga the following day.
209. She denied that she put the ankle support back on in Wagga because she had realised that she was under surveillance. She claimed that she put it back on because it was a hot day and her ankle had become swollen as she had been driving for a stretch.
210. In her evidence she acknowledged, when shown some comments in Dr Stark’s notes, that she and Cristabel had first suspected that they had seen someone following them in Mildura but at that point they were not “100 percent sure”.
211. She said that it was distressing to realise that she was under surveillance as she thought that “they were in support of me and my injury” [transcript page 98].
212. She told the Tribunal that she was intimidated and frightened by the fact that they were being followed by an unknown person and once she reached Canberra she essentially stayed indoors for the time that she was there as she was too fearful to go out. She telephoned Dr Stark from Canberra and told her of being followed.
213. Her evidence was that driving from Balranald to Wagga was painful for her ankle, but that she wanted to give Cristabel a break as Cristabel was fatigued and Ms Obst wanted to get to Canberra to see her father.
214. She was questioned about the surveillance evidence that showed her getting in and out of the van on a number of occasions. She explained her method of getting into and out of the van by using arm strength to pull herself in to avoid pressure on her left foot [transcript page 106].
other evidence about the trip to canberra
215. Cristabel Vinall also gave evidence to the Tribunal. Her statement was received as Exhibit A11.
216. She is a remedial massage therapist by occupation.
217. She went on the trip interstate with Ms Obst and did the bulk of the driving between Adelaide to Canberra. The trip was in the vehicle purchased form Mr Burlison.
218. She said that after leaving Associate Professor Bauze’s rooms on 22 January she observed that Ms Obst appeared to have been crying and was withdrawn, and did not want to talk about her meeting with Associate Professor Bauze. They went shopping briefly at the Elizabeth Shopping Centre and then commenced their journey towards Canberra.
219. Ms Vinall was questioned about an incident in the DVD when Ms Obst is seen to come out of a shopping centre in Mildura carrying what appears to be a heavy water container.
220. Ms Vinall acknowledged that it was a big “heavy container of water” that Ms Obst carried out of a shop in Mildura, but she said that Ms Obst insisted on carrying it because Ms Vinall was changing her shorts as she had discovered she had them on inside out. She said Ms Obst had appeared angry at the time and had insisted on going to get the water, saying to her “I’m not a fucking invalid” even though Ms Vinall had said that she would get the water as soon as she had changed her clothes.
221. She said that initially after leaving Adelaide Ms Obst appeared angry and “sharp”, but that she began to “lighten up” as they got further along the road. She said that she observed her to be shaky after leaving the medical rooms, but that she did not discuss her meeting with Associate Professor Obst with Ms Vinall until after they left Mildura when she claimed that Ms Obst broke down and told her about how distressing the meeting with Associate Professor Bauze had been [transcript page 681].
222. Ms Vinall said that it was at Wagga that they first realised they were being followed when they were told by a third party in an underground shopping centre that she and Ms Obst were being followed.
223. She described feeling a sense of panic when they realised they were being followed. Ms Obst had mentioned to her previously that she thought she may be under scrutiny, but Ms Vinall did not think they would ever be followed interstate nor was she aware that she had been filmed previously. She described it as being a frightening experience to discover that they were being followed and they were concerned for their own safety.
224. They reported the incident to the police in Wagga and again telephoned the police in Gundagai when they again sighted the vehicle. They saw the vehicle and tried to get the number plate, but he “sped off”.
225. She agreed that Ms Obst drove from Balranald to Wagga because it was a hot day and Ms Vinall said that she wanted a rest and she had a headache. She confirmed that her observation was that Ms Obst’s ankle was swollen when they arrived in Wagga and that she needed it elevated. She said that the reason she is observed in the surveillance evidence hanging a curtain across the back window of the van in Wagga was because she wanted Ms Obst to lie down because of the ankle swelling.
226. She claims to have put the curtains up before they saw the gentleman who was following them. Her recall was that 22 January 2007 was similar in temperature to 23 January 2007, but not quite as hot as 23 January 2007.
227. Her evidence was that Ms Obst said that she would have to stop driving before reaching Wagga because of her ankle and she pulled over as soon as she reached Wagga.
228. She confirmed Ms Obst and Mr Burlison’s evidence about how the gears on the Hiace van were used and that Mr Burlison took Ms Obst for a drive when she first purchased the vehicle to teach her how to use the gears.
229. Ms Vinall was emphatic that she did not suspect they were being followed at Mildura.
230. She acknowledged that she had seen Associate Professor Bauze’s first report because he had said things about her in that report and she claimed that there were discrepancies in his report of 26 July 2006 as to what actually occurred at the meeting. She no longer had the notes that she took at the July 2006 meeting. She claimed to have never seen his 2007 reports. She also said that she had only seen the surveillance DVD of 22 and 23 January 2007 and that she did not know of any other surveillance evidence.
events leading up to the disciplinary inquiry and the disciplinary inquiry
231. Ms Obst was certified fit to return to her employment as of 12 March 2007.
232. On 8 March 2007, she was visited at home at Glenelg by Mr Edwards and Mr Gigney. She told the Tribunal that she thought they had come to see how she was. Her response when she opened the door when they asked her how she was going was that she was all right and that she would see them on Monday as that was when she was due to return to work.
233. She claims that Mr Edwards responded by saying “Don’t bother to come in because you have been suspended” and he handed her a letter and told her she should also check her letter box occasionally. She claimed that he said with a smirk on his face “How are you going anyway?” She asked them to leave. They had arrived unannounced. The letter that she was given was Notice of the Disciplinary Inquiry (Exhibit A1). She claims that she burst into tears as they left and collapsed and telephoned her friend Cristabel and asked that she come after work to visit her. Cristabel worked nearby.
234. When Cristabel came she checked the letterbox and they found the letter with Associate Professor Bauze’s report in it, being his supplementary report of 1 March 2007, and the letter from Mr Pattison of APC which rejected liability for her psychological injury claim and which ceased present liability with respect to her ankle injury.
526. Ms Obst was also unhappy that after the gold mail run she had to sit idle in the office until 8.30 pm when she felt that if she could start her shift earlier she could be more productive in her working hours.
527. Ms Obst suffered an adjustment disorder with depression from late November 2006 until early March 2007.
528. In December 2006, Ms Obst became aware that she may be under surveillance and that someone may be following her on occasions. This caused her further distress.
529. Ms Obst was encouraged by her general practitioner to go to Canberra to spend time with her father in January 2007. The opportunity arose for her to accompany Ms Vinall on a driving trip to Canberra as Ms Vinall was then going on to Sydney. Her father had left Adelaide in early 2006 to go and live in Canberra. He represented her close family. Dr Stark thought it would be good for her mental state to take this opportunity.
530. When Ms Obst filled out the DASS questionnaire and discussed her case with Dr Stark on 4 December 2006, she genuinely reported the symptoms that she felt she was experiencing at the time to the doctor.
531. When Ms Obst attended on Associate Professor Bauze in January 2007, her failure to tell him that she was about to travel to Canberra was likely to be because of her concern that he may view her claim adversely if he knew that she was about to go on “a holiday”.
532. The DVD surveillance evidence of Ms Obst on 22 and 23 January 2007 is not at all inconsistent with her continuing to have problems with her lower left limb and ankle at the time.
533. Ms Obst became aware that a vehicle was following her and Ms Vinall in either Mildura or Wagga. This was a very frightening experience for her and she genuinely terrified by the realisation that she and Ms Vinall were being followed by an unknown person. This caused her fear, sleeplessness and paranoia.
534. Ms Obst’s psychological situation had fully resolved by 1 March 2007 such that her doctor certified her fit to return to work on modified duties, although she was still anxious about returning to work.
535. Mr Edwards and Mr Gigney coming to her home on 8 March 2007, to deliver a notice of suspension and to advise her of a pending inquiry, caused her distress because of the way in which they arrived without prior warning and because of the allegation that was being made that she was “a fake”.
536. Ms Obst was extremely anxious about the Disciplinary Inquiry thereafter. She asked to take her general practitioner, Dr Stark, with her to the Disciplinary Inquiry, but that was refused. She requested to see the surveillance evidence that APC were relying on prior to the Disciplinary Inquiry, but that was refused.
537. The letter of 8 March 2007, which outlined the reasons for the Disciplinary Inquiry, did not provide sufficient details for her to anticipate what was going to be asked of her at that hearing.
538. Ms Obst attempted suicide in late March 2007. At the time she was not taking any anti-depressant medication. Dr Coyte did not commence her on any anti- depressant medication until June 2007.
539. Ms Obst first exhibited symptoms of CRPS in July 2006 at a time when she had not recovered as well as was anticipated from her surgery. She reported symptoms to Dr Dracopoulos consistent with the possibility of that condition.
540. Ms Obst consistently suffered symptoms that were a sequelae to her original accepted ankle injury throughout 2007, 2008 and continuing. Those symptoms have improved, but she still has a level of disability in her lower left limb and ankle.
541. Ms Obst has suffered other stressors in her life from the first half of 2007 onward, including significant problems with neighbours in mid 2007 that resulted in her ultimately deciding to move from her townhouse in September 2007, some volatility in her relationship with Ms Vinall and personal financial difficulties.
542. Ms Obst has been in a sound psychological state and recovered from the second bout of depression from, at the latest, September 2007 and she has, on her own account, been fit from a physical perspective to return to her driving duties, with appropriate modifications for her ankle problems, since March 2007. She has not returned because of her suspension pending a Disciplinary Inquiry being completed.
543. Ms Obst’s symptoms fluctuate. She continues to take pain killing medication on a regular basis because of aching that returns in her left ankle. She takes considerably less medication then she took in the first 12-18 months after the injury.
544. Ms Obst has pursued rehabilitation in an attempt to improve her left leg/ankle condition. She has had physiotherapy when she has been able to afford it or when it has been covered by APC. She has used swimming, light gym work and massage in an attempt to ease the symptoms from which she suffers.
545. Because of financial constraints, she has not been able to continue with gym membership and with swimming in private pools as she has been reliant on Centrelink income since the middle of 2007.
546. Ms Obst found the Disciplinary Inquiry of March 2007 distressing as she did not have a good understanding of what was going to be asked of her and became confused, angry and distressed during the hearing, such that she left the hearing.
547. There is sufficient medical evidence based on pain clinic testing, medical observation and on the history of the matter, to find on the balance of probabilities that Ms Obst did continue to suffer a condition diagnosed by the pain experts that gave evidence as being CRPS as a result of, and as a sequelae to, the original ankle injury.
548. Ms Obst continues to suffer from intermittent aching and pain in her left lower limb. She still has some minor difficulties with stairs and with going up and down hills.
consideration and application of the law
549. There is no dispute with respect to liability in relation to the original ankle injury.
the determination to cease liability
550. The determination of 5 March 2007 ceased liability in relation to the ankle injury, being liability with respect to payment of medical expenses and in relation to periods of incapacity arising out of that injury. The reason that was given was that her ongoing presentation as being incapacitated by the original injury was feigned and the injury had run its course and resolved. This is implicit in the original decision and in the reconsideration which supports the original decision.
551. The objective medical evidence establishes that as of 5 March 2007 Ms Obst continued to suffer the effects of the original ankle injury sustained in December 2005 and the aggravation in February 2006. She continues to have some ongoing disability arising from the injury.
552. The Tribunal is satisfied that the decision to cease present liability under ss 16 and 19 of the SRC Act with respect to ankle injury is incorrect and should be set aside. The Tribunal is satisfied that Ms Obst continued to suffer ongoing pain discomfort and disability directly related to the original ankle injury post 5 March 2007. This required ongoing medical treatment by way of medication, referral to the Pain Clinic, physiotherapy, rehabilitation programs etc.
553. Despite her failure to tell Associate Professor Bauze that she was about to travel interstate and despite her apparent good cheer on occasions, she had ongoing difficulties with her ankle that required ongoing medical treatment and rehabilitation. The Tribunal therefore sets aside that aspect of the reconsideration that ceased present liability with respect to her ankle injury under ss 16 and 19 of the SRC Act on 5 March 2007. The Tribunal notes that there are no periods of incapacity relating to the ankle injury alleged beyond that date.
554. Ms Obst has stated most specifically that she had the capacity to go back to alternate duties as of 1 March 2007 and that any incapacity to work thereafter related to her psychological condition.
claim for complex regional pain syndrome
555. There was some argument as to whether Professor Cherry’s diagnosis was correct, given that Ms Obst did not fit within the diagnostic criteria set out in the Comcare Guide at page 105. The Comcare Guide requires that eight of the findings set out in figure 9E on page 106 be present for “a diagnosis of CRPS”.
556. The Comcare Guide is referred to in s 24 of the SRC Act which relates to applications for permanent impairment. Section 24(5) sets out that “the degree of permanent impairment of the employee” shall be determined “under the provisions of the approved Guide”.
557. Professor Cherry was quite scathing about the Comcare Guide and the criteria set out. He said they should not be used for diagnosis. He said they referred to cases of long-standing and severe CRPS and that a person could develop CRPS well before reaching the level of dysfunction applied by the Comcare Guide.
558. The Tribunal has considered the arguments put forward by both parties and is satisfied that the Comcare Guide does relate only to assessments for permanent impairment when a fairly advanced level of disability and significant objective signs are considered to be necessary to establish that a syndrome such as CRPS is sufficiently chronic that it becomes compensable under s 24 of the SRC Act. It is an easy condition to feign where subjective history is important in diagnosis. The Comcare Guide, in using the criteria that is does, is looking at a lot of objective indications before a permanent impairment assessment can be made.
559. There is disagreement in the profession about the criteria for diagnosis, but the Tribunal notes that the proposed criteria in the article of Norman Harden were considered appropriate by Dr Bastian and Professor Cherry for a diagnosis and that Ms Obst fits those criteria.
560. The Tribunal therefore finds that it is not bound to use the Comcare Guide for the purposes of diagnosis. However, if Ms Obst were to endeavour to make a claim for permanent impairment under s 24 of the SRC Act with respect to the condition of CRPS, she would find herself subject to the diagnostic criteria in the Comcare Guide.
561. The Tribunal is satisfied for the reasons already set out that as a direct result of the ankle injury Ms Obst went on to develop the condition of CRPS as currently understood by the pain specialist profession. That condition has resolved to a large degree, but she continues to exhibit some symptoms of ongoing ankle pain.
562. The Tribunal sets aside the reconsideration by the senior claims officer of 22 November 2007 with respect to CRPS and finds that liability in relation to her accepted claim for her ankle injury should include liability for CRPS.
claim for permanent impairment with respect to her ankle injury
563. Ms Obst’s claim for permanent impairment arising out of her ankle injury is to be considered under s 24 of the SRC Act.
564. The senior claims officer who rejected her claim did not accept that she had a compensable injury, but found that if she did, she did not have a disability such that her impairment reached the requirement of a minimum 10 percent required by the legislation.
565. The Tribunal has already set out the findings with respect to the symptoms from which she continues to suffer. Even Associate Professor Bauze acknowledges that she is likely to continue to have ongoing residual disability arising out of what he considers to have been a severe sprain of her ankle, which occurred in the course of her employment.
566. The Tribunal is satisfied that in accordance with s 24(2) of the SRC Act, the ongoing impairment in Ms Obst’s ankle is permanent. At the date of the hearing it was more than three years since the original injury. There has been considerable improvement in her condition, but the general medical consensus is that there remains ongoing residual disability arising from the original injury. She has undertaken various forms of rehabilitative treatment for the impairment and will probably need to continue to do so. It is unlikely that the problems with her ankle will ever fully resolve.
567. Dr Bastian considered the issue of percentage impairment under the relevant table. The Tribunal refers to his calculations set out in his report of 23 March 2009 (Exhibit A10). The Tribunal is satisfied that he has correctly used the combined charts under the Comcare Guide and agrees that based on all the evidence available, his calculation of her impairment as being 11 percent is correct.
568. It was open to the decision-maker to determine the percentage of her ankle impairment had he accepted that Ms Obst had a genuine compensable injury. The Tribunal is satisfied that it has jurisdiction to make the finding with respect to percentage impairment as that finding was available to the decision-maker at the time. The Tribunal finds that Ms Obst has an 11 percent impairment of her left ankle arising out of the injury sustained in the course of her employment in 2005.
569. The Tribunal sets aside the decision of 30 September 2008 and substitutes the decision that Ms Obst does have a permanent impairment of her left ankle arising as a result of the ankle injury and its sequellae and finds that under the combined impairment table, she has an impairment of 11 percent.
the psychological injury
570. The test for the Tribunal to apply when determining whether her adjustment disorder with depressed mood is compensable is to consider whether it was contributed to in a material degree by her employment with the Commonwealth (s 14 of the SRC Act – the definition of “disease”).
571. The respondent has pointed to both the fact that Ms Obst suffered a depressive episode in late 2005 and the fact that she was already taking medication around the time that she sustained the original injury as indicators that any depressive illness may well have pre-dated the injury or that other factors contributed substantially to any condition that she suffered from. Alternatively, they argue that she is not genuine just as they assert that she feigned injury. They assert that she also feigned the psychological injury that she suffered between December 2006 and March 2007.
572. The Tribunal has already found that Ms Obst suffered an adjustment disorder between late November 2006 and early March 2007. Did her employment at APC materially contribute to this episode?
573. In Wiegand v Comcare (2002) 72 ALD 795 in the context of considering whether an event could amount to a material contribution to an injury, von Doussa J commented as follows:
“There is no requirement at law that the interpretation plays on the incident or state of affairs by the employee or the employee’s perception of it, it is one which passes some qualitative test based on an objective measure of reasonableness. If an incident or state of affairs actually occurred and created a perception in the mind of the employee (whether reasonable or unreasonable in the thinking of others) and the perception contributed in a material degree to an aggravation of the employee’s ailment, the requirements to the definition of disease are fulfilled.”
574. The Tribunal is satisfied that the events at work and arising out of her ankle condition between September and November 2006 did contribute to her ankle condition, even if those that she worked with did not appreciate that by moving her to the conference room or by telling her that her work was not satisfactory, they may be putting her under psychological stress. Both the psychiatrists who gave evidence in this matter explained that she had an underlying vulnerability that made her more re-active than some to psychological stressors.
575. The Tribunal must be satisfied that the injury is contributed to or aggravated in a material degree by her employment. In the case of Comcare v Sahu-Khan [2007] FCA 15 the Federal Court considered the meaning of “contributed to in a material degree by the employee’s employment”.
576. In Sahu-Khan the Full Court commented as follows (at [16]):
“16. Bearing in mind that the course of statutory construction is often not aided by substituting for the word used in an enactment, another word which is not so used, probably the best that can ultimately be said is that the s 4 definition:
(i)requires a stronger causal relationship between the employment and the ailment, etc suffered than that exacted by the 1971 Act;
(ii)“in a material degree” requires an evaluation of all relevant contributing factors for the purpose of asking whether the employee’s employment did or did not contribute materially to the suffering of the ailment, etc, in question (“the threshold evaluation”);
(iii)whether this will be so in a given case will be a matter of fact and degree.”
577. Despite her injury, Ms Obst appeared to manage well until things began to go wrong for her and her ankle did not make the recovery that she anticipated after the surgery. The evidence of Dr Stark is that her mood was stable by mid 2006 and thereafter it would appear that Ms Obst was pursuing attempts at rehabilitation and on the whole trying quite positively to get back to work.
578. The move to the conference room created a perception in her mind that she was being scrutinised by her employer and that she was not fulfilling her duties appropriately.
579. The Tribunal is satisfied, based on all the evidence, that although it may not have been an entirely reasonable interpretation of the move to the conference room, Ms Obst was genuinely distressed at the suggestion that she was not doing her work properly and that she needed to be scrutinised. She was in an increasingly emotionally distressed state at the time because her ankle injury was not resolving and it was continuing to cause her problems such that she could not return to her pre-accident work.
580. Although the respondent had pointed to possible other stressors in Ms Obst’s life, such as difficult neighbours and possible differences in her relationship with Ms Vinall, there is no evidence that anything outside her employment was happening in 2006 that was a contributor to the eventual adjustment disorder with depression that she suffered between December 2006 and March 2007.
581. Dr Coyte identified all the stressors that he considers were operating on her at the time as follows:
·her ankle was not improving;
·she was frustrated at it not improving;
·she was in quite significant pain at times;
·the move to the conference room made her feel she was being scrutinised; and
·she developed the perception that she was not trusted by her employer.
582. Because of her underlying personality this made her feel increasingly emotional and vulnerable.
583. She had hoped that she could return to driving duties and had even attempted to drive a manual vehicle herself in October 2006 in the hope that she could get back to normal driving duties, but discovered that she could not comfortably drive a manual vehicle.
584. It would appear that her first day back at work doing the gold mail run was frustrating for her.
585. She had a swollen and painful ankle at the end of the day.
586. Her new hours were such that she was forced to sit in the office doing nothing for some hours after completing the run.
587. She felt disturbed at not being able to carry out the loading and lifting duties and she had to watch other employees do the work that she had been accustomed to doing. She was let down and distressed at her situation.
588. As Dr Cotton also formed the view that she has a somewhat vulnerable personality. Dr Coyte explored at some length why factors in her childhood have contributed to that vulnerability.
589. The Tribunal is satisfied that, in accordance with the requirement of the legislation, she suffered an adjustment disorder with depressed mood between the date of the gold mail run and the date that she was certified fit to return to work in 2007 that was contributed to in a material degree by her employment with APC.
590. For the reasons already set out the Tribunal will not deal with the period of depression that she then suffered subsequent to the Disciplinary Inquiry in 2007.
591. In the circumstances, the Tribunal sets aside that part of the reconsideration of 20 July 2007 that rejected Ms’s Obst’s claim for psychological injury and finds that APC has liability with respect to the psychological injury of adjustment disorder with depressed mood that she suffered between late November 2006 and early march 2007.
I certify that the 591 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member L Hastwell and Professor P L Reilly AO (Member)
Signed: .....................................................................................
AssociateDates of Hearing 4-8 May 2009 (inclusive), 13-16 July 2009 (inclusive), 18 November 2009 and 11 December 2009
Date of Decision 25 January 2010
Counsel for the Applicant Mr Mark Roberts
Solicitor for the Applicant Tindall Gask Bentley
Counsel for the Respondent Mr Michael Bell
Solicitor for the Respondent Gilchrist Connell
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