Samy and Comcare (Compensation)

Samy and Comcare (Compensation) [2020] AATA 3850 (2 October 2020)
Division:GENERAL DIVISION
File Number: 2016/4373
2017/4897
2018/0565
2018/3189
2018/4005

Re:Frozny Samy
APPLICANT

ComcareAnd
RESPONDENT

DECISION
Tribunal:Senior Member D O'Donovan
Date:2 October 2020
Place:Canberra

In relation to Tribunal application 2016/4373, the reviewable decision dated 12 July 2016 which denied liability for compensation under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) in respect of ‘subacromial bursitis (left)’ alleged to have been sustained on 18 August 2015, is affirmed.
In relation to Tribunal application 2018/3189, the reviewable decision made on 18 July 2018 which denied liability for compensation under section 14 of the SRC Act in respect of ‘subacromial bursitis (left), impingement of left C6 nerve root and sustained on 18 August 2015 and the effects of the medication related to the related pain’, is affirmed.
In relation to Tribunal application 2017/4897, the reviewable decision dated 28 July 2017, which denied liability for compensation under section 14 of the SRC Act in respect of ‘left shoulder injury’, is set aside. In substitution, the Tribunal decides that the respondent is, pursuant to section 14 of the SRC Act, liable to pay compensation to the applicant for a temporary aggravation, sustained on 7 April 2017, of his underlying shoulder condition.
In relation to Tribunal application 2018/4005, the reviewable decision made on 18 July 2018 which denied liability for compensation under section 14 of the SRC Act in respect of ‘neck injury sustained on 7 April 2017 and the effects of the medication related to the related pain,’ is affirmed.
In relation to Tribunal application 2018/0565, the reviewable decision made on 15 December 2017, which denied liability for compensation under section 14 of the SRC Act in respect of ‘depression and post-traumatic stress disorder’, is set aside. In substitution, the Tribunal decides that the respondent is liable to pay compensation to the applicant for adjustment disorder and major depression, pursuant to section 14 of the SRC Act.
The parties have not been heard in relation to orders for costs. Written submissions in respect of costs may be made within 14 days of this decision. Should no such submissions be received during this time, the Tribunal will order the respondent to pay the applicant’s reasonable costs and disbursements of Tribunal applications 2017/4897 and 2018/0565 (or relating to the incident of 7 April 2017 and the psychological claim).
........................................................................
Senior Member D O'Donovan
Catchwords
WORKERS COMPENSATION – left sided neck and shoulder condition – whether the symptoms suffered are an injury or a disease – whether employment contributed to a significant degree – non-work related factors including the degenerative nature of the condition considered – whether the applicant suffered the injury in the course of employment – where certified fit to return to work – further shoulder injury sustained – struck by lift doors – whether separate injury to shoulder suffered in course of employment – subsequent psychological claim made – whether depression caused by restrictions placed on leave and performance management amounted to reasonable administrative action under section 5A – original injury found to be a degenerative condition not related to employment – further shoulder injury found to be a temporary aggravation of underlying degenerative condition – psychological claim made out – exclusion for reasonable administrative action does not apply
Legislation
Fair Work Act 2009 s 97
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 5A, 5B, 14
Cases
Comcare v Martin [2016] HCA 43
Commonwealth Bank of Australia v Reeve and another (2012) 199 FCR 463.
Tisdall v Webber (2011) 193 FCR 260
REASONS FOR DECISION
Senior Member D O'Donovan
2 October 2020
INTRODUCTION

Mr Samy (the applicant) is an employee of the Department of Home Affairs (Department). In the second half of 2015 he began to experience left sided shoulder and neck pain which led to medical treatment and periods off work. Initially the condition was regarded as unrelated to his work and therefore non-compensable. His condition deteriorated and the applicant submitted a claim to Comcare for worker’s compensation. In 2016 the applicant worked restricted hours working only three hours per day three days a week. In November 2016 he was referred by the Department to Dr Oppermann, an occupational physician. Dr Oppermann certified him fit for full time hours[1] and in December 2016 the applicant was directed to return to work full time.
[1] Second Set of Tribunal Documents, T4, folio 30.
The applicant’s return to work was in every sense an abject failure. He failed to perform to an appropriate standard and steps were taken to manage his performance. In April 2017 he was struck by lift doors as they were closing. On his report, the applicant suffered exacerbated symptoms from his underlying neck and shoulder conditions. Separately, after his return to work, the applicant’s mental state deteriorated to a point where the original occupational physician who found him fit for full time work in November 2016, found him unfit for any work in July 2017.[2]
[2] Third Set of Tribunal Documents, T21FF, folio 423.
The applicant now has five claims lodged with Comcare. Of those five, two relate to the shoulder and neck condition which developed in the second half of 2015, two relate to injuries claimed to have been suffered in the 2017 incident involving the lift, and one relates to the psychological condition which developed after his return to work in 2017.
In relation to the shoulder and neck condition there is no dispute that he has such a condition. The question is whether it is compensable or simply a constitutional condition which fails to meet the necessary statutory conditions to attract compensation.
In relation to the lift incident the question is whether the applicant suffered any injury at all in the incident. The respondent contends that the incident was so trivial that nothing which could be described as an injury (in the ordinary sense of that word) could have resulted. The respondent also contends that, to the extent that the incident may have caused a flare up in symptoms without change to the underlying pathology, the increased pain does not amount to an aggravation recognised under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act).
In relation to the psychological condition which the applicant developed following his return to work, the issue is whether the exclusionary proviso in section 5A of the SRC Act, which excludes a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment, applies such that the applicant is not entitled to compensation.
In relation to the applicant’s shoulder and neck condition, I am satisfied that it does not meet the statutory requirements for compensation. The condition the applicant suffers from is the result of a degenerative disease. It is not the result of an injury arising out of, or suffered in the course of employment, nor is it an ailment significantly contributed to by his employment.
In relation to the effects of the lift incident, I am satisfied that the applicant suffered an injury (in the statutory sense of the word) during the incident. The incident aggravated his underlying shoulder condition temporarily. Consequently, the applicant is entitled to compensation in relation to it.
In relation to the applicant’s psychological deterioration, I am satisfied that it constitutes an ailment that was contributed to, to a significant degree, by the applicant’s employment. I am satisfied that it is a disease suffered as a result of administrative action. However, I am not satisfied that the administrative action was reasonable administrative action taken in a reasonable manner. Accordingly, it meets the definition of an injury provided for in section 5A of the SRC Act and the applicant is entitled to compensation in relation to it.
EVIDENCE
The matter was part heard on 2 – 4 March 2020 and resumed on 4 June 2020 concluding on 5 June 2020.
The evidence in this matter consists of the following:
·Five sets of Section 37 Tribunal Documents filed in relation to each Tribunal proceeding;
·Report of Dr Ash Takyar dated 18 November 2019;[3]
[3] Exhibit A1.
·Report of Ms Victoria Coghlan dated 31 October 2019;[4]
[4] Exhibit A2.
·Report of Dr Kevin Woods, orthopaedic surgeon, dated 8 August 2017;[5]
[5] Exhibit A3.
·Medical Certificate of Dr Abraham Thomas dated 8 September 2017;[6]
[6] Exhibit A4.
·Medical Certificate from Jamison Medical and Skin Cancer Clinic dated 5 September 2017;[7]
[7] Exhibit A5.
·Medical Certificate from Dr Stephanie Ajulo dated 28 October 2015;[8]
[8] Exhibit A6.
·Medical Certificate from Dr Stephanie Ajulo dated 25 September 2015;[9]
[9] Exhibit A7.
·A bundle of documents titled ‘Applicant’s List of Evidence Materials’ filed with the Tribunal on 8 June 2018 running to 251 pages;[10]
[10] Exhibit A8.
·Email correspondence dated 10 April 2017 from the applicant to Mira with an attached WHS Incident Report;[11]
[11] Exhibit A9.
·Statement from the applicant titled ‘Proof of Evidence’ dated 24 May 2018;[12]
[12] Exhibit A10.
·A bundle of documents relevant to the question of which doctors identified restrictions on the applicant’s ability to type which were extracted from the Tribunal documents for convenience;[13]
[13] Exhibit A11.
·Email correspondence dated 12 September 2014 from Mr Piesley to Security and IT Service Operations Branch;[14]
[14] Exhibit A12.
·A diagram relating to the lift incident as prepared by Ms Hurst during cross examination;[15]
[15] Exhibit A13.
·A second diagram relating to the lift incident as prepared by Ms Hurst during cross examination;[16]
[16] Exhibit A14.
·A diagram relating to the lift incident as prepared by Mr Gibson during cross examination;[17]
[17] Exhibit A15.
·SMS iMessage containing a photo of Endone sent to Mr Denley;[18]
[18] Exhibit A16.
·Email correspondence from the applicant to Mr Denley dated 20 January 2017;[19]
[19] Exhibit A17.
·Email correspondence from Workflow Admin to the applicant dated 25 January 2017;[20]
[20] Exhibit A18.
·Email correspondence from the applicant to Ms Walsh, Mr Denley and Ms West dated 25 January 2017;[21]
[21] Exhibit A19.
·Email correspondence from Mr Denley to the applicant, Ms Walsh and Ms West dated 30 January 2017;[22]
[22] Exhibit A20.
·Email correspondence from the applicant to Mr Denley, Ms West and Ms Walsh dated 16 February 2017 with medical certificates attached;[23]
[23] Exhibit A21.
·Email correspondence from the applicant to Mira dated 12 April 2017 attaching an email chain correspondence between the applicant and Mr Denley from the same day;[24]
[24] Exhibit A22.
·Email correspondence from the applicant to Mr Denley and Ms West dated 31 March 2017 with a medical certificate from Dr Jayasekera attached;[25]
[25] Exhibit A23.
·Email chain correspondence commencing with an email from Mr Denley to the applicant and Ms West dated 17 January 2017;[26]
[26] Exhibit A24.
·Email correspondence from the applicant to Ms West dated 4 April 2017 with a report by Dr Vrancic dated 8 February 2017 and an ergonomic review from APM attached;[27]
[27] Exhibit A25.
·Email correspondence from the applicant to Mira dated 15 March 2016 with an attachment headed ‘Employer to Complete’;[28]
[28] Exhibit A26.
·Supplementary medical report of Dr Ian Stokes dated 15 June 2018 and briefing letter dated 7 February 2018;[29]
[29] Exhibit R1.
·X-Ray of Left Shoulder prepared by Dr Jan Laguna to Dr Hossain dated 10 September 2013 as extracted from the summonsed records produced by Dr Pik;[30]
[30] Exhibit R2.
·Extracts of summonsed records produced by PHC Ginninderra Medical and Dental Centre;[31]
[31] Exhibit R3.
·Email chain correspondence commencing with an email dated 17 January 2017 from the applicant to ‘Reception’ with subject line: Formal report on my (Frozny Samy) condition’ with a medical certificate from Dr Vrancic dated 8 February 2017, a Report by Dr Vrancic dated 25 January 2017 and a further report by Dr Vrancic dated 16 January 2017 attached;[32]
[32] Exhibit R4.
·Medical Certificate from Jamison Medical and Skin Cancer Clinic dated 7 April 2017 extracted from the summonsed records produced by Shoulder2Hand;[33]
[33] Exhibit R5.
·Ultrasound report from Ginninderra Diagnostic Imaging dated 11 April 2017 extracted from the summonsed records produced by Shoulder2Hand;[34]
[34] Exhibit R6.
·Email correspondence from the applicant to Dr Vrancic’s Reception dated 3 July 2017 extracted from the summonsed records produced by Shoulder2Hand;[35]
[35] Exhibit R7.
·Email correspondence from Dr Vrancic to Jennifer Butt undated with an email from Jennifer Butt to Dr Vrancic attached extracted from the summonsed records produced by Shoulder2Hand;[36]
·Email correspondence from the applicant to Dr Vrancic’s Reception dated 27 June 2017 extracted from the summonsed records produced by Shoulder2Hand;[37]
·Letter from Dr Vrancic to the applicant dated 30 June 2017 extracted from the summonsed records produced by Shoulder2Hand;[38]
·Report of Dr Vrancic to Dr Jayasekera dated 26 June 2017 extracted from the summonsed records produced by Shoulder2Hand;[39]
·Statement of Phyllis Hurst dated 19 December 2017;[40]
·Statement of Anthony Gibson dated 19 December 2017;[41]
·Statement of Susan West with attachment dated 29 June 2018;[42]
·Statement of Jason Denley dated 29 June 2017 with attachments;[43]
·Statement of Jason Denley dated 22 December 2017 with attachments;[44] and
·Department of Immigration Leave Records in respect of the applicant extracted from the section 71 documents produced by the employer in 2018/0565.[45]
[36] Exhibit R8.
[37] Exhibit R9.
[38] Exhibit R10.
[39] Exhibit R11.
[40] Exhibit R12.
[41] Exhibit R13.
[42] Exhibit R14.
[43] Exhibit R15.
[44] Exhibit R16.
[45] Exhibit R17.
The witnesses who gave evidence were:
·The applicant himself;
·Ms Phyllis Hurst and Mr Anthony Gibson who gave evidence about the circumstances of the lift incident in 2017;
·Mr Jason Denley and Ms Susan West who gave evidence about the circumstances in which the applicant was directed to return to work;
·Dr Shiva Gunapu, a consultant psychiatrist, who assessed the applicant on one occasion, took a history of his psychological suffering and prepared a subsequent report at the request of the respondent.
·Dr Brett Oppermann, the occupational physician who originally certified the applicant as fit to return to full time duties who has prepared five reports in relation to the applicant.
Dr Ash Takyar, another psychiatrist who had seen the applicant, was not called to give evidence.
None of the physical doctors who had a close understanding of the origins and development of the applicant’s physical conditions were called. The conclusions reached reflect a close analysis of the written reports and clinical notes which were tendered.
Comments on Evidence
The applicant was self-represented. He produced a witness statement along with corroborating documentation and was cross-examined. I am satisfied that, for the most part, his evidence represents his best efforts to remember what occurred. However, as is often the case where a person is required to repeat matters of detail over an extended period of time, I am satisfied his recollections in relation to how his physical conditions developed and the consequences of them are, less reliable than the contemporaneous notes taken by the various medical practitioners who took histories at the time.
I am also satisfied that the applicant is prone to exaggerating the impact on him of various events. The lift incident is a good example. The Tribunal had the benefit of two eye-witnesses - Mr Anthony Gibson and Ms Phyllis Hurst. The applicant attacked these witnesses’ credit on the ground that they could not have had a proper view of the incident or could not remember it correctly as there was a time lapse between the incident and the giving of a witness statement of many months. I reject those submissions. The witnesses indicated that they had a clear view of the incident and gave every indication of remembering it clearly. I am satisfied that they described the incident accurately. The two witnesses’ descriptions of the incident were consistent. Both accounts of the event indicated a relatively light contact between the applicant and the closing elevator doors before they retracted automatically in response to the contact. The applicant however has given more florid accounts of the event. For example, his description of the event to Dr Takyar, a consultant psychiatrist, was in the following terms: ‘Then I walked into the lift and the lift shattered my shoulder.’[46]
[46] Exhibit A1, at 4.
The applicant’s own medical evidence is that ‘clinically his examination is exactly the same as it was prior to [the lift] injury’.[47] Whatever may have been the consequences of the injury, a ‘shattered’ shoulder was not one of them.
[47] Second Set of Tribunal Documents, T21A, folio 85.
There are similarly exaggerated accounts given to other doctors.[48]
[48] Second Set of Tribunal Documents, T17A, folio 76 (Reported to Dr Jayasekera that the lift “jammed” his shoulder); Second Set of Tribunal Documents, T23, folio 201 (Reported to Dr Vrancic that he was “crushed by an elevator lift door”); Second Set of Tribunal Documents, T24, folio 204 (Reported to Dr Stokes that he was “crushed” by a closing door and described a very strong violent hit).
Accordingly, I am satisfied that where it is in his interests, the applicant is prone to exaggerate. For that reason, I have treated much of the applicant’s oral evidence with caution and sought to identify corroborating material before accepting the applicant’s account.
Having made these general remarks, it then falls to consider the statutory framework and each of the applicant’s claimed injuries.
STATUTORY FRAMEWORK
Each of the reviewable decisions the subject of Tribunal review are determinations, pursuant to section 14 of the SRC Act, that Comcare is not liable to pay compensation in accordance with the SRC Act.
Section 14 relevantly provides:
(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.
The term injury is defined in section 5A as follows:
(1)In this Act:
Injury means:
(a)A disease suffered by an employee; or
(b)An injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c)An aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.
(2)For the purposes of subsection (1) and without limiting that subsection, reasonable administrative action is taken to include the following:
(a)A reasonable appraisal of the employee’s performance;
(b)A reasonable counselling action (whether formal or informal) taken in respect of the employee’s employment;
(c)A reasonable suspension action in respect of the employee’s employment;
(d)A reasonable disciplinary action (whether formal or informal) taken in respect of the employee’s employment;
(e)Anything reasonable done in connection with an action mentioned in paragraph (a), (b), (c) or (d);
(f)Anything reasonable done in connection with the employee’s failure to obtain a promotion, reclassification, transfer or benefit, or to retain a benefit in connection with his or her employment.

The term disease is defined in section 5B as follows:
5B Definition of disease
(1) In this Act:
disease means:
(a) an ailment suffered by an employee; or
(b) an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.
(2) In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:
(a) the duration of the employment;
(b) the nature of, and particular tasks involved in, the employment;
(c) any predisposition of the employee to the ailment or aggravation;
(d) any activities of the employee not related to the employment;
(e) any other matters affecting the employee’s health.
This subsection does not limit the matters that may be taken into account.
(3) In this Act:
significant degree means a degree that is substantially more than material.
IS THE INJURY OF 18 AUGUST 2015 COMPENSABLE?
Set out below are my findings in relation to the onset of the applicant’s neck and shoulder injuries.
For the reasons explained above, I have disregarded the applicant’s evidence to the Tribunal about the pain he experienced in August 2015. He is prone to exaggeration and what he described to the Tribunal is quite different to the picture which emerges from the contemporaneous medical notes. I base my factual findings in relation to the applicant’s shoulder and neck injury on the notes identified below.
The applicant has had a history of shoulder pain prior to August 2015. In April 2009, he reported to his GP, Dr Ajulo, posterior neck pain and left arm pain which had been going on for three weeks.[49] He was sent for neck X-rays. His GP recorded that the X-rays revealed loss of normal cervical lordosis and loss of disc space height at C5/6.[50] He was sent for CT scan evaluation but it appears that this was not pursued.[51]
[49] Exhibit R3, at 15.
[50] Ibid.
[51] Ibid.
In August 2013 the applicant again complained to his GP about left shoulder pain which had persisted for two weeks. He was referred for a shoulder X-ray.[52]
[52] Ibid at 12.
Pain re-emerged in the middle of 2015. The history which the applicant initially gave to his GP on 18 August 2015 was of left shoulder pain radiating into the forearm, which he had suffered from for two weeks including intermittent numbness and paraesthesia.[53] I am satisfied that this accurately records what occurred.
[53] Ibid at 9 -10.
Some pain developed in the applicant’s shoulder in late July 2015, which gradually worsened to the point where on 18 August 2015 the pain became acute, at which point the applicant sought medical treatment. The GP’s notes record that on examination, there were no structural abnormalities identified, no obvious swelling, a full range of movement with difficulty and the applicant was not aware of any trauma which caused the pain.[54] He was prescribed Panadeine Forte and Voltaren Rapid, and was referred for an X-ray and ultrasound.[55]
[54] Ibid.
[55] Ibid at 10.
Reading the GPs notes, there is no suggestion that a dramatic deterioration had occurred on the day of the visit or that there was any significant event in the applicant’s workplace.
By 27 August 2015 the pain had not resolved and the applicant was prescribed Endone. The injury was not otherwise documented by any injury report or compensation claim at that time.
A number of ultrasounds were performed which for reasons of reliability are unhelpful in resolving the issues in the case, but they were suggestive of a tear in the anterior supraspinatus tendon.[56]
[56] First Set of Tribunal Documents, T21C, folio 76.
However, a CT scan and an MRI were more revealing. An MRI was performed on 13 October 2015. The MRI revealed narrowing of the left neural foramen (the small openings in the spine where the nerve roots exit the spinal canal) at the level of C5/6 causing impingement of the left C6 nerve root.[57]
[57] First Set of Tribunal Documents, T8, folio 26.
On 19 October 2015, the applicant had a workstation assessment. The applicant’s desk was reported as being 3cm too high for him.[58]
[58] First Set of Tribunal Documents, T32, folio 136.
On 3 November 2015, the applicant was seen by Dr Pik, a neurosurgeon, for assessment. He recorded that the applicant:[59]
had an episode of severe left-sided neck and arm pain which started in July this year. The patient’s severe pain has since subsided but Mr Samy continues to experience sensory alteration in a left C6 and C7 distribution.
Dr Pik also noted that:
MRI of cervical spine performed recently showed evidence of left-sided C5/6 and C6/7 disc herniation and osteophyte formation causing left C6 and C7 nerve root compromise. There was no evidence of spinal cord compression on this MRI.
[59] First Set of Tribunal Documents, T10, folio 31.
This suggests that the source of the applicant’s pain is nerve impingement in the cervical spine.[60]
[60] Although I note that an MRI of September 2015 showed fluid in the subacromial bursa and tendinosis of the rotator cuff – see Exhibit A3.
Dr Pik diagnosed an episode of radiculopathy due to C5/6 and C6/7 herniation. At that point in time the applicant’s pain was resolving so he did not recommend surgery.
On 30 November 2015, the applicant’s GP certified him unfit for work but with the statement ‘he wants to continue to work 4 days a week, 3 hours each day and take Wednesday off. I will continue to review and monitor his progress’.[61] The applicant resumed work for those hours on that basis.
[61] First Set of Tribunal Documents, T11, folio 32.
In an initial assessment report, a rehabilitation provider engaged by the Department of Immigration and Border Protection, APM, recorded the following history: [62]
Date of Injury 18 August 2015. Mr Samy reported experiencing a niggling pain in his left shoulder on 15 July 2015, not significant enough to see a doctor…he reported a sharp pain and instability in his left shoulder while at work on 18 August 2015…The employer advised APM that no incident report has been lodged, as Mr Samy could not identify a specific incident of injury.
[62] First Set of Tribunal Documents, T12, folio 39-40.
The applicant’s supervisor, Mr Denley, spoke to APM as part of the rehabilitation assessment. He advised that he had performance concerns about the applicant and that he would prefer for the applicant to remain away from the workplace during the period for which he has been certified unfit as his present symptoms were negatively impacting on his work performance.[63]
[63] First Set of Tribunal Documents, T12, folio 43.
On 21 January 2016, the applicant attended his GP. Her notes record that the applicant ‘wonders if RSI as wks in computer prog Says job involves typing’.[64]
[64] Exhibit R3, at 6.
On 10 March 2016, the applicant submitted a worker’s compensation claim.[65] The section completed by the employer noted that the applicant first notified his employer of the injury on 18 August 2015.
[65] First Set of Tribunal Documents, T15, folio 49-54.
From 18 March 2016, the applicant was off work completely.
On 30 March 2016, the respondent gave the Department an opportunity to make a statement in relation to the claim. There is no evidence that any statement was made in response.
On 18 April 2016, Dr Fitzgerald, an occupational physician, assessed the applicant at the respondent’s request. In his report he found that the applicant was suffering from left supraspinatus tendinopathy in his left shoulder and probable left cervical C6 radiculopathy. His assessment was that the condition ‘could be classified as an aggravation of a pre-existing or underlying condition’.[66] The main factors which Dr Fitzgerald found to have contributed to the condition were ‘likely constitutional and degenerative changes.’[67] Dr Fitzgerald was ‘not convinced there have been any employment factors causing his condition or potentiating it, albeit some of his work activities in particular typing are associated with increased pain.’[68] He assessed the applicant as having reasonable work capacity and it was reasonable for him to return to work three hours per day four days per week if suitable work was available.
[66] First Set of Tribunal Documents, T24, folio 93.
[67] Ibid.
[68] Ibid, folio 94.
On 19 April 2016, Dr Low, an occupational physician, saw the applicant at the request of SRC Solutions. He gave a history of experiencing shoulder pain, with a sudden increase on 18 August 2015. He denied any acute trauma or acute precipitating event. The applicant described ongoing left-sided shoulder pain which he was able to manage with analgesia but without it the pain increased to 8/10. He also reported constant paraesthesia. He estimated he took Endone 3 times per week. He stated he had a several year history of cervical neck pain. He noted that pain was exacerbated by gripping activities as well as typing for more than 30 minutes. Dr Low diagnosed the applicant as having left shoulder impingement secondary to narrowing of AC joint space, cervical spondylosis with compression of C6 neuroforamen resulting in radicular symptoms.[69] Dr Low advised that in assisting the applicant to return to work he would require modifications to allow him to avoid frequent use of his left upper limb. ‘Further consideration should be given to voice activation software as he would be unable to sustain work that would require him to engage in frequent computer use.’ Dr Low advised that the applicant’s pathology was primarily degenerative in nature related to increasing age.[70]
[69] First Set of Tribunal Documents, T26, folio 105.
[70] Ibid.
On 18 May 2016, the respondent rejected the claim on the basis that the delegate was unable to establish a relationship between the applicant’s conditions and his employment.[71]
[71] First Set of Tribunal Documents, T28, folio 115.
On 31 May 2016, the applicant attended his GP, Dr Ajulo. Her notes record as follows:[72]
difficult consultation
wants me to write saying his shoulder tear could be caused by work.
adv I am unable to do this as there is no clear causality.
I gave details of a gp who has interest in msk [musculo-skeletal] sys and may hoefully [sic] help.
[72] Exhibit R3, at 7.
I am considering handing over care to a colleague as his consultations are stressful for me.
Soon after, the applicant moved to a new GP, Dr Jayasekera. On 6 June 2016, Dr Jayasekera prepared a report which was supportive of a theory that the applicant’s computer work aggravated and possibly contributed to his condition having regard to the nature and conditions of his work.[73]
[73] First Set of Tribunal Documents, T29A, folio 118.
On 2 June 2016, Dr Colin Andrews, a consultant neurologist, prepared a report in relation to the applicant’s condition. The history given was:[74]
The story goes back to August last year when at work whilst typing he started to get left shoulder pain and pain down the left arm. The pain does radiate into the scapular region and the left hand has become weak. He has numbness in the middle, ring and little fingers.
[74] First Set of Tribunal Documents, T29B, folio 119.
Peripheral nerve conduction studies were satisfactory. Weakness and absence of reflexes were identified in the left arm. Nerve blocks at C5/6 and C6/7 were ordered. Dr Andrews noted that the applicant was using Endone for pain which is ‘a fairly heavy treatment and after he takes an Endone for some hours he feels somewhat sedated but at least it treats the pain’.[75]
[75] Ibid, folio 120.
On 3 June 2016, the applicant’s physiotherapist, David Kennard, prepared a letter to Dr Ajulo. He provided the following history:[76]
Mr Samy presented to this clinic on 25 January 2016, reporting a constant dull ache down his left arm with intermittent pins and needles into his hands. He also reported intermittent soreness down his right arm. Mr Samy stated that on 15 July 2015, he gradually developed worsening shoulder and neck pain. By August 15, the pain was unbearable. A series of multiple x-rays, ultra-sounds and MRIs revealed a tear to his left supraspinatus tendon, right shoulder sub-acromial bursitis and C5-6 neural compromise…
Mr Samy has reported improvements with physiotherapy treatment to his neck and shoulder complaints. Mr Samy reports reducing shoulder pain and discomfort…Given Mr Samy’s improvements with physiotherapy and due to him not being at work, I was wondering whether you felt that work may be a contributing factor to his complaint.
[76] First Set of Tribunal Documents, T29C, folio 121.
The applicant was then referred to an orthopaedic surgeon, Dr Vrancic. On 22 June 2016 she prepared a report.[77]
[77] First Set of Tribunal Documents, T33, folio 140.
She advised that she was delighted to see the outcome of the applicant’s review by Dr Pik. Surgical intervention was ruled out for the applicant’s cervical spine issue. The applicant’s arm restriction was noted as being characteristic of inflammatory bursitis. An arthroscopic decompression procedure was offered in relation to the left shoulder. Dr Vrancic concluded that: [78]
On the balance of probabilities there is a significant contribution to [the applicant’s] current symptoms from the poor ergonomics in his workplace as documented by his workplace assessment last year. The recommendations including a touch screen for use with right hand would be of great benefit to him both in the short and the long term.
[78] Ibid.
On 12 July 2016, the respondent affirmed the original determination. It did so on the basis that the weight of the evidence established that the applicant’s injury was not contributed to by his employment. Following this reviewable decision, the applicant was examined by a number of different doctors who offered opinions on his condition. Before discussing those reports two things should be noted. First, the applicant submitted a further claim in relation to his left arm pain on 11 April 2018 which formally expanded the claim to include pain originating in the cervical spine. Prior to this, the claims had been focussed only on the applicant’s shoulder. This claim resulted in a reviewable decision made on 18 July 2018 which is the subject of application 2018/3189 in the Tribunal. Because the reviewable decisions of 12 July 2016 and 18 July 2018 cover related and overlapping conditions, those reviewable decisions are considered together. Second, the applicant returned to full time work in January 2017. The circumstances of that return to work are discussed in more detail in the context of the applicant’s psychological claim. For present purposes it is sufficient to note that in April 2017 the applicant was struck by a closing elevator door which prompted a further period off work and further claims for compensation. The claims arising from this incident are dealt with separately.
ANALYSIS OF MEDICAL EVIDENCE CONCERNING SPINE AND SHOULDER CONDITIONS
Dr Garth Eaton
Following the reviewable decision on 12 July 2016, the applicant was seen by an occupational physician, Dr Eaton. His opinion, included in a report dated 28 September 2016, is as follows:[79]
Pain and dysfunction due to the underlying degenerative conditions mentioned above is likely to have been significantly aggravated by various factors in the workplace including prolonged poor/antalgic posture, an antalgic adoption of an abnormal position of the neck, left shoulder and left upper limb while working at the desk due to significant ergonomic deficiencies identified in the work station assessment.
[79] Second Set of Tribunal Documents, T21B at folio 267 - 268.
He referred to the AMA Guides to the Evaluation of Disease and Injury Causation - Second Edition - page 320, where it states that there is strong evidence that awkward postures with sustained shoulder postures with more than 60 degrees of flexion or abduction is a risk factor for increased shoulder pain which may be due to tendinopathy impingement and rotator cuff tears.
Dr Eaton concluded that ‘in view of the ergonomic deficiencies including the abnormal desk height it is quite possible that his shoulder was held in flexion or abduction more than 60 degrees for extended periods.’[80]
[80] Ibid, at folio 268.
On 23 August 2017, Dr Eaton provided a second report. He confirmed that C5/6 nerve compression was the source of the pain experienced by the applicant on 18 August 2015. However, he concluded that ‘apart from the natural progression of degenerative change in the spine there is no clear reason or explanation why such pain occurs at a particular time’.[81]
[81] Fourth Set of Tribunal Documents, T9D, folio 54.
Dr Eaton gave a third report on 9 January 2018. He was given an updated CT MRI report by Dr Jain in relation to the MRI performed on 1 September 2015.
He concluded that:[82]
with the additional radiological diagnostic information provided by Dr Jain suggesting a [humeral avulsion of the inferior glenohumeral ligament] there is now an alternative strong possibility for the reported episode of excruciating left shoulder pain which occurred on 18 August 2015. At the time it is quite possible that an acute injury occurred with the ligament ripped off the bone...
Dr Eaton recommended that the diagnosis be confirmed by a shoulder surgeon.
[82] Fourth Set of Tribunal Documents, T9E, folio 56.
Dr Eaton’s reports in combination suggest three possible theories as the cause of the applicant’s pain that emerged on 18 August 2015 – aggravation of issues with shoulder tendons resulting from poor posture arising from incorrectly set desk height; the natural progression and degenerative change in the cervical spine; and the tearing of a ligament while the applicant was at work on 18 August 2015.
Dr Eaton was not called to give evidence and consequently was not subjected to cross-examination. None of his theories arise above competing possibilities.[83] I am not satisfied that any of them are correct on the balance of probabilities. Dr Eaton’s uncertainty about the causes of the applicant’s problems is emblematic of how difficult it is to attribute a specific cause to the symptoms from which he suffers.
[83] Tisdall v Webber (2011) 193 FCR 260 at [128].
Dr Brett Oppermann
The applicant was also examined by Dr Oppermann. Dr Oppermann’s reports were directed at the applicant’s fitness for duty rather than whether the applicant’s shoulder/neck condition, which became acute on 18 August 2015, was compensable. While his reports are of assistance in relation to the development of the applicant’s other conditions, they are of little assistance in assessing whether the applicant is entitled to compensation for his original condition. It is, however, worth noting that he diagnosed cervical root impingement as the primary diagnosis and considered that there may be adhesive capsulitis (known colloquially as frozen shoulder).[84]
[84] Third Set of Tribunal Documents, T6.1, folio 79.
Dr Sindy Vrancic
Dr Vrancic is the applicant’s treating orthopaedic surgeon. As noted above, she prepared a report on 22 June 2016.
She noted surgical intervention was ruled out for the applicant’s cervical spine issue. She considered the applicant’s arm restriction to be characteristic of inflammatory bursitis. An arthroscopic decompression procedure was offered in relation to the left shoulder. Dr Vrancic concluded that: [85]
On the balance of probabilities there is a significant contribution to [the applicant’s] current symptoms from the poor ergonomics in his workplace as documented by his workplace assessment last year. The recommendations including a touch screen for use with right hand would be of great benefit to him both in the short and the long term.
[85] First Set of Tribunal Documents, T33 folio 140.
Dr Vrancic prepared another report on 16 January 2017 in the context of the direction that the applicant was to return to full time work. She excluded ‘intrinsic capsulitis’ as the cause of the applicant’s ongoing pain thus disagreeing with Dr Oppermann.[86]
[86] Third Set of Tribunal Documents, T6.4, folio 86.

She prepared a further report dated 25 January 2017 counselling against returning the applicant to work full time, indicating it would be likely to exacerbate the ‘pain syndrome’ in his shoulder and advising that the applicant was taking Lyrica and Endone which were likely to impact on his performance but which were necessary to control his pain. No mechanism to explain the onset of his condition was proffered.[87]
[87] Second Set of Tribunal Documents, T36C, folio 295.
On 8 February 2017, the applicant returned to Dr Vrancic and she confirmed that his medications would mean he would be unable to perform at the level required of his duties and as such, performance management reviews could not be undertaken while he was on medication. She noted that, ‘He also showed me the ergonomic review of his workstation indicating the set-up of his workstation was unsafe and most likely has been one contributing factor to his shoulder pain.’[88] She recommended restricted hours.
[88] Third Set of Tribunal Documents, T6.6, folio 88.
On 17 May 2017, Dr Vrancic reported to the respondent in the context of the applicant being hit by a closing elevator door on 7 April 2017 with a reported aggravation of symptoms. Dr Vrancic noted that:[89]
Mr Samy did describe an acute exacerbation of his shoulder pain following an injury in the workplace 7 April 2017. Clinically, his findings are no different from that prior to this injury, however pain is not something that can be examined. He reports that his pain has significantly increased following the injury in the workplace. Clinically his examination is exactly the same as it was prior to the injury. It is likely that he has had a temporary exacerbation of bursitis/impingement syndrome from the traumatic injury of the lift door. It is unusual for current lift doors to impact with enough force to trigger an inflammatory response, however his shoulder was not normal prior to this injury and less trauma is required to aggravate a pre-existing pain syndrome shoulder…On the balance of probabilities the incident with the lift door would have temporarily exacerbated his pre-existing pain syndrome with a bursitis type picture and it should settle with immediate non-surgical means such as anti-inflammatory medication…
[89] Second Set of Tribunal Documents, T21A, folio 85.
Dr Vrancic’s last report was dated 26 June 2017. The applicant had undergone a cortisone injection in his shoulder and reported that ‘…the injection returned him to his level of pain that he felt in January 2017’.[90] Dr Vrancic states ‘Mr Samy had an acute inflammatory reaction to a lift door injury, which has now settled back to his pre-lift injury level of pain.’[91]
[90] Exhibit R11.
[91] Ibid.
Dr Vrancic concluded that ‘it is unlikely that there is any peripheral structural problem blocking his range of motion rather it is more likely a central pain syndrome.’[92] Surgery was not recommended.
[92] Ibid.
Dr Ian Stokes
Dr Stokes saw the applicant for assessment on 6 June 2017 at the respondent’s request. Dr Stokes is an orthopaedic surgeon.
The applicant gave a history which was largely consistent with histories he had given previously. He did however advise that his ‘shoulder pain was worsening day by day’ and he is concerned by the feelings of weakness in his whole left arm. Symptoms reported were consistent with nerve root irritation at C6 and C8 level with sparing of the C7. He indicated he was using Endone up to 5mg three times a day.
Dr Stokes concluded that:[93]
…Mr Samy’s neck left shoulder and left arm problems are continuing from 2015 until today and the pathology remains the same. In my opinion, Mr Samy is suffering from cervical spondylosis of a degenerative nature with some nerve root entrapment most likely in the region of C6 and C7 this being an extremely common site for the development of age related cervical spondylosis. Mr Samy is also suffering from rotator cuff impingement and fluctuating levels of rotator cuff tendinosis and this diagnosis is confirmed on his latest MRI scan…I have difficulty establishing a causal relationship between Mr Samy’s mostly sedentary workplace and the pathology present in his cervical spine and left shoulder…In my opinion the workplace incident as outlined by Mr Samy when he was struck on the left shoulder by a closing lift door on 7 April 2017 would have caused a minor temporary exacerbation of symptoms without any real change in the underlying pathology that has been present both in his neck and shoulder for the last few years…Mr Samy is not fit to return to his pre-injury hours.
[93] Third Set of Tribunal Documents, T21CC, folio 378 - 380.
Dr Stokes prepared a supplementary report on 15 June 2018. He concluded that bursting calcific tendonitis was responsible for the applicant’s reported symptoms on 18 August 2015.[94]
[94] Exhibit R1, at 4.
Dr Stokes was satisfied that the applicant suffered from cervical spondylosis and nerve root entrapment and the MRI provides direct evidence explaining the radicular pain.
He disagreed with Dr Oppermann concerning the effects of the lift incident on the applicant and other aspects of his diagnosis concerning the shoulder symptoms.[95]
[95] Ibid, at 7.
He agreed with Dr Vrancic’s diagnosis and suggested treatment for the applicant’s subacromial bursitis causing rotator cuff impingement.[96]
[96] Ibid.
He agreed with the report of Dr Fitzgerald.[97]
[97] Ibid.
Submissions
The applicant contends that in relation to his neck and shoulder conditions he is entitled to compensation on the following basis.
He suffers from pre-existing degeneration in the neck and left shoulder. On 18 August 2015 he suffered:
(a)a discrete new injury in the nature of a sudden change of the spinal architecture of the neck, resulting in nerve root entrapment that caused the sudden acute onset of pain; and
(b)an aggravation of the two existing conditions.
As a consequence, the applicant suffered an injury within the meaning of section 5A of the SRC Act which occurred at work. Accordingly, the conditions are compensable irrespective of the extent to which the applicant’s employment caused the sudden onset of nerve entrapment.[98]
[98] Applicant’s Statement of Facts, Issues and Contentions filed by Slater & Gordon Lawyers on 11 December 2018, at 6 (adopted by Mr Samy on 26 February 2020).
In the alternative, the applicant submits that what he suffered is an injury (as opposed to a disease) that occurred at work in the nature of an aggravation of the pre-existing conditions. It is therefore compensable irrespective of the extent to which the applicant’s employment caused the sudden onset of nerve entrapment and pain.[99]
[99] Ibid.
Further, in the alternative, the applicant submits he suffers from a disease in the nature of an aggravation of the pre-existing conditions which was significantly contributed to by the nature and conditions of his employment.[100]
[100] Ibid.
Conclusions
The first critical question is, did the applicant actually suffer an acute event at work on 18 August 2015? As explained at the outset, I am not satisfied that he did.
The early notes concerning the genesis of the applicant’s condition do not suggest that the medical practitioners took a history of an acute injury event. The applicant only started giving a clear description of such an event to health care professionals from January 2016.
While I am sure that the applicant now believes that this is what occurred, it is not consistent with the initial reports of the how his pain developed. The GP’s notes suggest a steady building of pain until it was unbearable starting two weeks prior to the date on which he attended the GP. I am satisfied that is how the pain developed.[101]
[101] For completeness I note that the applicant’s supervisor gave evidence that the applicant reported to him on 18 August 2015 saying that he hurt his shoulder walking the dog. For a number of reasons it is unlikely that the supervisor is accurately recalling events. The respondent confirmed that it did not wish to submit that that is what caused Mr Samy’s injury.
I am not satisfied that there was a significant identifiable event which constituted an injury in the course of employment, or an injury arising out of his employment.
This rules out theories such as the bursting of calcific tendonitis as the cause of the applicant’s pain.
Turning then to whether the applicant suffered an ailment or an aggravation of an ailment significantly contributed to by the applicant’s employment, I am not satisfied that he did.
The applicant suffers from a condition which originates in his neck and a condition which originates in his shoulder. The neck condition the applicant suffers from is cervical spondylosis of a degenerative nature with some nerve root entrapment most likely in the region of C6 and C7. The applicant is also suffering from rotator cuff impingement and fluctuating levels of rotator cuff tendinosis. It is these conditions which cause him the left arm pain and paraesthesia from which he suffers.
In relation to these conditions I rely on the views of Dr Stokes[102] supported by Dr Fitzgerald, that the applicant’s condition is constitutional. The underlying conditions are constitutional and it is unlikely the applicant’s employment contributed to any aggravation of those conditions. I am conscious that there are doctors with other views.
Dr Eaton was not called as a witness and was not cross-examined. He offers a number of theories about what may be causing the applicant’s symptoms. Given that I am not satisfied that there was a major incident at work on 18 August 2015, I could not be satisfied that there was a major tear of a ligament as Dr Eaton theorises in one of his reports. Dr Eaton accepts that cervical spondylosis is a constitutional condition but suggests that the applicant’s workstation may have contributed to his shoulder symptoms’ onset. That opinion is based on speculation that it is quite possible that [the applicant’s] shoulder was held in flexion or abduction more than 60 degrees for extended periods.[103]
[103] Second Set of Tribunal Documents, T21B, folio 268.
Dr Vrancic offers the same theory. Dr Vrancic was not called as a witness at the hearing and so was not cross-examined. In the absence of more elaboration of the foundation for her views, and in light of the lack of acceptance of those theories by a number of other doctors, I do not accept Dr Vrancic’s assessment. The development of symptoms against a background of a height issue with the applicant’s workstation is weak evidence of a causal link. Dr Vrancic’s view (even with the inconsistent support provided by Dr Eaton) does not satisfy me on the balance of probabilities that the applicant has a shoulder and spine problem significantly contributed to by his employment.
Given that there are a variety of theories about the cause of the applicant’s symptoms it is clear that the cause of them is not well understood. Constitutional changes are sufficient to explain the development of the symptoms. Given that removing the applicant from the workplace did not relieve symptoms and, if anything, his condition worsened over the course of his absence from work, makes it difficult to prefer a theory attributing a significant contribution from work. The applicant remains dependent on strong analgesics for the treatment of his symptoms despite having been absent from work or working reduced hours for an extended period. In my assessment, the conclusion of Dr Stokes that the applicant suffers from a constitutional condition is at least as probable as the alternative proposed by Dr Vrancic.
I am not satisfied that the applicant’s work significantly contributed to even a temporary aggravation of the applicant’s cervical spine and shoulder conditions prior to his return to full time work in January 2017.
THE ELEVATOR INCIDENT
On 7 April 2017, following a return to full time work in January 2017, the applicant was involved in an incident with an elevator which resulted in further time off work and additional medical treatment.
The severity of this incident was the subject of some contest at the hearing but as noted at [‎16] above, I am satisfied that the best evidence about what occurred was provided by two witnesses called by the respondent, Mr Anthony Gibson and Ms Phyllis Hurst.
Based on their account I am satisfied that the following occurred. After a morning meeting the applicant attempted to enter a full lift at the last possible moment before the doors closed. The doors made contact with the applicant’s left shoulder before retracting. The contact was quite light. The applicant did however experience elevated symptoms as a consequence and sought medical treatment.
I am satisfied that the elevator incident prompted a temporary aggravation of the applicant’s neck and shoulder conditions. I accept the opinion of Dr Vrancic in this regard.
‘Mr Samy had an acute inflammatory reaction to a lift door injury, which has now [as at 26 June 2017] settled back to his pre-lift injury level of pain.’[104]
[104] Exhibit R11.
The incident aggravated the applicant’s shoulder symptoms.
By 26 June 2017 the injury settled back to its pre-injury level of pain. There was no alteration of the underlying pathology.
In these circumstances, the applicant suffered a symptomatic aggravation of his underlying neck and shoulder diseases. This aggravation was significantly contributed to by his employment in the sense that the strike by the elevator door was the sole cause of the aggravation of symptoms.
That aggravation, however, resolved by 26 June 2017 and consequently any compensation payable is for a closed period.
PSYCHOLOGICAL DISEASE
The applicant’s psychological illness has its origin in events related to his return to work in early 2017. Prior to that the applicant was off work from 18 August 2015 to 25 September 2015. He resumed working part time hours. From 25 September 2015 to 29 February 2016, the applicant worked 3 hours per day 4 days per week. In March 2016 a return to work program was initiated. The goal for the applicant was to increase his hours with a view to performing pre-injury hours and pre-injury duties over a three to four-month period. However, the initial program was short lived as on 16 March 2016 the applicant was certified unfit for work.
He returned to work on 18 July 2016 working three hours per day three days per week and made no progress on increasing his hours.[105] During this period attempts were made to teach the applicant how to use Dragon dictation software so that he could avoid typing. From 13 October 2016 the applicant’s supervisor and the applicant agreed that his duties should be reallocated to allow him to focus solely on training/learning to use the software. This continued until December 2016. For reasons which included the applicant’s strong Sri Lankan accent, this software did not prove to be a viable alternative to typing and the applicant’s difficulties with it seem never to have been overcome.[106]
[105] Exhibit R14, at [6].
[106] Transcript of Proceedings, 4 March 2020, at 267: Mr Samy’s supervisor accepted that he received reports from Mr Samy that Dragon did not work for him and helped him to escalate the issues to IT, but there is no evidence that the issues were ever resolved.
On 25 November 2016, the applicant was assessed by Dr Brett Oppermann, consultant occupational physician. At the time of assessment, the applicant was certified by his GP, Dr Jayasekera, as fit to attend work for no more than three hours per day three days per week. Dr Jayasekera had also advised a further restriction – that the applicant had to avoid all typing.[107] That certification ran through to 30 January 2017.
[107] Third Set of Tribunal Documents, T6.1, folio 75.
Dr Oppermann’s opinion of Dr Jayasekera’s assessment was that this was ‘unnecessarily overly restrictive’. He reported that: [108]
it is entirely unclear to me as to why he cannot type using a standard computer and keyboard when at work, albeit at a slower than usual pace…there is no plausible risk of material aggravation of his left shoulder or cervical spine complaint with gentle typing.
[108] Ibid, folio 78.
His ultimate conclusion was:[109]
…it is my opinion that Mr Samy presently has capacity to work full-time hours. I would accept that some reasonable adjustment is required in relation to the daily volume and pace of typing able to be undertaken by Mr Samy, his present capacity for such being much reduced. Mr Samy reported having trialled use of Dragon voice recognition dictation software but such he stated was inefficient and inaccurate in its recognition of his speech. In that regard, consideration could be given to him using a Dictaphone, with typing of the transcript then performed by a typist with final proof-reading and correction performed by Mr Samy prior to release of any document in exactly the same way that this report was generated by me.
[Emphasis added]
[109] Ibid, folio 79.
The Department accepted the report of Dr Oppermann dated 8 December 2016.[110]
[110] Respondent’s Statement of Facts, Issues and Contentions dated 11 February 2019, at [5.4].
On 13 December 2016, the Department sent a letter and email to the applicant which stated: [111]
If you disagree with Dr Oppermann’s report, you are entitled to submit written comments to the delegate, Ms Vivianne Brown, Director, People Division, within 14 days of the date of receipt of the report.
If you dispute Dr Oppermannn’s opinion in regard to your fitness for duty, you must provide new medical evidence from your nominated treating medical practitioner to support your view. Any evidence you provide will be referred to Dr Oppermann for his consideration.
[Emphasis added]
[111] Exhibit R14, Attachment A.
On 16 December 2016, the applicant submitted a letter from his treating GP, Dr Jayasekera, in response to Dr Oppermann’s report. The applicant requested that Dr Oppermann discuss his situation with his GP before finalising his report. The applicant included a letter from his GP seeking a case conference to discuss the applicant’s return to work including the use of a Dictaphone at all times with no typing and a gradual return to full time duties. On any reasonable view this report disputed Dr Oppermann’s view and suggested a method for managing the disagreement. The applicant indicated that his GP would be available for a conference when she returned from leave on 17 January 2017.
On 20 December 2016, notwithstanding the fact that the views of the applicant’s GP had not been referred to Dr Oppermann and that the 14-day period for comment had not yet expired, the applicant was directed to return to work in the following terms:[112]
I am advised that…a report was provided to the department setting out that you were found fit for full time duty, without restriction.
I now direct you to return to work by no later than 9am on Tuesday 10 January 2017. On that day you will be provided with a full range of tasks at the EL2 level, on a full time basis. If you fail to comply with this direction to return to work by that date, I will refer the matter to Employee Relations for consideration of terminating your employment on the grounds of non-performance of duty, and your absence will be recorded as unauthorised.
[112] Third Set of Tribunal Documents, T6.2, folio 81.
This direction was given in circumstances where Dr Oppermann had not found the applicant fit for full time duty without restriction. Dr Oppermann had specifically said:[113]
I would accept that some reasonable adjustment is required in relation to the daily volume and pace of typing able to be undertaken by Mr Samy, his present capacity for such being much reduced.
[113] Third Set of Tribunal Documents, T6.1, folio 79.
Dr Oppermann had noted the problems the applicant had faced with Dragon dictation software (which the Department knew had not been resolved at that time[114]) and recommended use of a Dictaphone. There was no intention at this point in time to provide the applicant with a Dictaphone notwithstanding that both the Department’s doctor and the respondent’s GP had identified it as a reasonable adjustment that would assist for the applicant to perform his duties efficiently.[115]
[114] Exhibit A8, at 54.
[115] In noting this I am not suggesting that the Department was obliged to provide a Dictaphone – I am merely noting that if it was not possible to do so as the issues identified by the doctors needed to be examined.

The Department accepts that the applicant was not fully fit for his return to work and that reasonable adjustments needed to be made. In essence the assertion is that notwithstanding that the direction said that the applicant was to return to work without restriction, it was always the intention of those returning him to work to make accommodations for his restricted ability to type (and indeed they had already done so).[116] If that was the intention it is not clearly reflected in the correspondence from the Department to the applicant.
[116] See Exhibit R14 (Statement of Susan West).
The applicant responded to the direction on 20 December 2016 referring to his GP’s letter and seeking to arrange a conference to discuss the provision of a Dictaphone. He indicated that he could not attend on 10 January 2017 as he had a physiotherapy appointment booked.
On 21 December 2016, Matthew Walters, who was acting as the applicant’s supervisor wrote to the applicant stating:[117]
…the Department is required to act in accordance with the specialist advice provided by Dr Oppermann following his assessment of you on 25 November 2016 stating that you are currently fit for full time duty without restriction.
Accordingly my direction that you return to the workplace by 9.00am on Tuesday, 10 January 2017, and that you undertake your EL2 role on a full time basis, remains in effect.
[117] Exhibit A8, at 67.
Mr Walters also noted that if the applicant intended to take personal leave on 10 January 2017 to attend a physiotherapy appointment, documentary evidence would be required.
The applicant responded by pointing out that he had a medical certificate until 31 January 2017. Mr Walter responded saying that the Department was entitled to rely on the evidence of Dr Oppermann and, accordingly, the direction given to the applicant to return to work at 9am on 10 January 2017 was valid and he was required to present for duty that day.
On 4 January 2017, the applicant responded advising that he would return to work as directed. He also indicated that he was taking Endone and Lyrica. In relation to Endone he indicated that there were significant side-effects including:[118]
(a)directly after consuming Endone I do not recall any actions from 30 minutes to up to two hours;
(b)I always lie down and rest as I experience drowsiness and am unstable to stand or sit; and
(c)the drowsiness can last between 4-5 hours so I ensure I do not undertake any risky activities like driving.
[118] Ibid, at 70.
He noted:[119]
Even though I have been directed to return to work full time I need to continue to take Endone and Lyrica as required. I have some concerns that the medication will have an impact on me at work and wanted to address this with you prior to my return.
[119] Ibid.
This was not the first time that an effect from medication had been noted by the applicant. The previous year he had also described its effect to Dr Andrews.[120]
[120] First Set of Tribunal Documents, T29B, folio 120.
On 10 January 2017, the applicant met with his supervisor, Mr Denley, and other representatives of the Department, including Ms West.
The email recording the terms of this meeting included the following:[121]
It was noted that [the applicant] had not provided a formal response within stated time-frame to the formal work determination provided by DIBP, and that his Doctors were not available for consultation/response until Monday 16^th and Tuesday 17^th January.
[121] Exhibit A8, at 77.
This statement is at the very least misleading. The applicant had responded with a short report from his GP within the timeframe imposed. It was the Department which at this point was not complying with the process it had promised the applicant. In particular, the response from the applicant’s GP had never been shown to Dr Oppermann for his comment.
The email also records an agreement that was reached into how the difficulty caused by the applicant’s GP being on leave and unable to meet to resolve the basis on which he could safely return to work should be dealt with. The email records: [122]
…we agreed that the best temporary course of action is for [the applicant] to request Annual leave for afternoons, until his Doctor visits have been completed…We are all in agreement that the medical determination for [the applicant] to return to full-time hours currently stands and is effective today Tuesday 10 Jan. The above period from 10-17Jan using annual leave is strictly a temporary arrangement until [the applicant] has actioned a review of the report with his two medical practitioners. To re-iterate for total clarity, I will not consider a similar arrangement beyond 17Jan.
[122] Ibid.
There are a few things to note at this point. The Department did not have a report that the applicant was fit to return to full time duties without restriction to support their direction. The report of Dr Oppermann noted the need for a Dictaphone for the applicant to complete full duties and the Department had no intention of providing one. Dragon had not been successful (which the Department knew) and was not an alternative to typing. The Department had failed to comply with its promised process before insisting the applicant return to work. The applicant had a valid certificate to remain on restricted hours until the end of January 2017. Despite this, rather than allowing the applicant to take personal leave to which he was entitled, the Department forced him to use his own recreation leave to avoid the risks to the applicant which the Department’s precipitous directions had caused.
For the purposes of considering the reasonableness of the action taken by the Department, I note that paid personal leave is a right provided for by section 97 of the Fair Work Act 2009 (Cth). At this point in time the applicant had provided evidence (consistent with Dr Oppermann’s report) that he was not fit for full time work on unrestricted duties. In these circumstances, for the Department to insist that the applicant would use his own recreation leave rather than approve further personal leave was, in my assessment, unreasonable.
On 11 January 2017, the applicant inquired whether Dr Oppermann would be advised that the Department was not proposing to provide him with a Dictaphone. He also explained (unconvincingly in my assessment) why he could use a touch keyboard at home using his right hand, but could not use a standard keyboard at work. The applicant claimed that it was the occasional use of the ‘shift’ ‘crtrl’ and ‘alt’ keys using his left hand that made this impossible.
The Department responded the same day confirming that in relation to the Dictaphone option ‘this is not considered reasonable adjustment, however intensive training will be provided for Dragon. That decision does not need to be communicated to Dr Oppermann’.[123] The applicant responded:[124]
My understanding is that then I am ‘found fit for full time duty, with restriction’.
I still feel that it might be good to let Dr Oppermann know that the Dictaphone is out of scope. Please note I am not pushing for a Dictaphone. I agree with your policy.
[123] Ibid, at 79.
[124] Ibid.
It is clear from this comment that the applicant understands that the Dictaphone will not be provided. However it is also clear that, given Dr Oppermann accepted that the applicant’s ‘present capacity for [typing] being much reduced’ and that Dragon had not been successful, the doctor was clearly factoring in the Dictaphone as an option informing his view that the applicant was fit for full time duties without restriction. It would have been prudent to check with Dr Oppermann that the arrangement the Department was proposing was appropriate notwithstanding that the Department had no ability to accommodate a significant restriction on the applicant’s ability to type and in particular:
(a)no Dictaphone would be offered; and
(b)despite significant effort, Dragon had never operated effectively.
The Department did, however, approach Dr Oppermann for a further report to deal with the issue of the applicant’s medication having side-effects which interfered with his work.
Dr Oppermann spoke to Susan West on 13 January 2017. He advised that:
(a)The applicant had not mentioned any adverse effects of his medication at the assessment despite having many opportunities to do so.
(b)His opinion is that the applicant is avoiding returning to work full-time or working at all. He displayed avoidance behaviours during the assessment.
(c)The applicant pestered him repeatedly during the assessment to recommend in his report that the Department should place/find him an intelligence role at the same level, same salary and working hours that suited him.
(d)He was happy to speak to the applicant’s GP and had tried to contact her but he considered that there was only so much he could do in regard to talking to Dr Jayasekera.
(e)His opinion would not change, the applicant could return to work full time.
(f)He noted that the applicant had typed his email regarding his medications and had not indicated that anyone else had typed it for him.
On 13 January 2017, Dr Oppermann provided a second report. He was clearly sceptical about the applicant’s claims about the side-effects of medication describing them as ‘manifestly different to that reported by him at the time of his assessment with me, and manifestly excess of that which would ordinarily be expected from use of such medication’.[125] He recommended the applicant cease use of Endone altogether.
[125] Third Set of Tribunal Documents, T21I, folio 314.
Dr Oppermann was also concerned by the apparent inconsistency between the applicant saying that he suffered severe side-effects from medication while claiming to have capacity to undertake an intelligence role elsewhere in the Department on a full-time basis. Dr Oppermann confirmed that he remained of the opinion that the applicant was fit for full time hours.
The respondent contends that based on this report, the Department was entitled to treat the applicant’s reports of restriction with the greatest scepticism. Further, the respondent submits that the restrictions, as claimed by the applicant, were made up based on the absence of report to Dr Jayasekera, who was prescribing the medications, and his failure to raise the issue with Dr Oppermann, either, initially or in the first response to the proposal to return him to work.
I reject both submissions. Dealing with the submission that the applicant made up his restrictions arising from his medication first. There is evidence that the applicant was reporting to doctors the use of Endone[126] and its adverse effects on him[127] the previous year. Accordingly, I do not accept the submission that the side effects the applicant claimed were a recent invention.
[126] See Report of Dr Low at First Set of Tribunal Documents, T26, folio 105.
[127] See Report of Dr Andrews at First Set of Tribunal Documents, T29B, folio 120.
In relation to the submission that the Department was entitled to treat the applicant’s claims of side effects with the greatest of scepticism, I do not disagree that Dr Opperman’s report did provide a foundation for querying whether the side effects described by the applicant were as severe as he claimed. However, to proceed on the basis that they were totally made up without further inquiry of the treating doctors was not appropriate.
The Department was entitled to test the applicant’s claims, but not to dismiss them entirely on the basis of the assessment of a single non-treating doctor.
On 13 January 2017, the applicant’s supervisor met with him about performance issues. It was noted that the applicant was absent from his desk from 8.45-9.30 notwithstanding that he was only working a 3.5-hour shift. The applicant advised that he was getting a coffee from his preferred coffee shop in Belconnen Mall. At the meeting it was also noted that Dragon was experiencing an 80% failure rate for recognising spoken words.
On Monday 16 January 2017, Dragon crashed and the applicant reported this to his supervisor.
On 16 January 2017, orthopaedic surgeon, Dr Vrancic, provided a short report stating that the applicant is only medically fit to work three days at threehours per week due to the medication he is currently taking. She explained her view in a report dated 16 January 2017 which unfortunately was not provided to the Department until later. While for the purposes of determining whether the applicant is entitled to compensation in relation to his shoulder condition, I have not accepted Dr Vrancic’s view on the cause of the applicant’s pain, she does describe well the impact of it on his capacity to work full time. The relevant parts of her report are as follows:[128]
… any rehabilitation back towards pre-injury hours needs to be accompanied by significant changes in his workplace activities including offloading his left shoulder. Surgical intervention for his left shoulder may eliminate some of his discomfort but I am concerned as his symptoms have been present for a long period of time and are quite severe in nature that there may be a central component to his pain that may not settle with surgical intervention.
The medication that Mr Samy is currently on, including the anti-neuropathic pain medication, reportedly a significant side effect of lethargy, memory loss and poor concentration and as such while he is on this medication he believes that he needs to be restricted with regards to his workplace activities. Obviously it would be in his best interests to address the pain surgically so that he can wean from this medication.
He has tried Dragon voice activated software, but due to his speech patterns and accent he reports that it was an unsuccessful trial. The use of a Dictaphone however would be a reasonable option for him.
I note that there is a recommendation that Mr Samy does not use his left hand at all for typing, however given his external rotation range with his arm by his side, I believe with a keyboard close to his body he is able to perform limited typing activities utilising his left hand. As such I feel it is an unreasonable medical restriction to not have him use his left hand at all. Appropriate ergonomic arrangements will make some keyboard activities appropriate for him….I agree with his independent medical review that limited typing with the left hand is appropriate and should be undertaken with the appropriate ergonomics…He feels at this point that he is unable to do pre-injury hours and I am unable to comment on this as I have only seen him briefly on 2 occasions and am not the appropriate medical practitioner to assess the side effects associated with the medication. To note at the appointment today, there did not appear to be any such side effects of lethargy or drowsiness as a result of his medication.
[128] Exhibit A8, at 89.
The applicant provided the first of Dr Vrancic’s reports to his supervisor on 17 January 2017. It appears that he did not have access to her more comprehensive report until later. He provided the short report and requested that he be allowed to work reduced hours in accordance with the report. His supervisor rejected that course and confirmed that the applicant had to ‘return to full-time duties tomorrow morning’[129] and that Dr Vrancic’s report would be considered as part of the process for appealing that direction. The applicant then emailed Dr Vrancic’s rooms seeking a more comprehensive report.
[129] Ibid, at 92.
The applicant resumed full time hours. The applicant was directed to work core hours – 8.30am to 5.00pm with 1 hour for lunch.
On Friday 20 January 2017, the applicant reported to his supervisor that he was leaving work due to pain from 9.15am.
On Monday 23 January 2017, he sought medical leave from 12 noon to attend a 2.45pm GP appointment. The extra time was sought so that he could return home, take medication and then attend the doctor. Only 2 hours personal leave was approved.[130]
[130] Ibid, at 103 – 104.
The applicant also queried whether he could work as flexibly as other employees at his level, rather than fixed hours. The applicant’s supervisor responded that he could not start work at 8.15am ‘due to operational requirements and your required availability to work with stakeholders during core hours’.[131]
[131] Ibid, at 105.
On 25 January 2017, the applicant wrote to his supervisor in the following terms:[132]
Just wanted to let know that I am experiencing increased pain on my left upper body (neck and shoulder), this is above what I manage day to day.
I understand that I cannot take sick leave for this however at times it does affect my ability to concentrate.
I will proceed as normal however I wanted to be honest about how I feel.
I have made a reservation with my GP 31/1/2017 at 3:45 PM to discuss the new dose of my medication.
[132] Ibid, at 112.
On the same day his supervisor rejected his application for sick leave on 20 January 2017. The reasons given were as follows:[133]
I have rejected this sick leave request covering 9:15am-5pm Friday 20 January 2017, for the following reasons:-
‘severe left shoulder pain’ referenced in medical certificate specifically relates to your stated health condition which was reviewed in recent independent medical assessment. As per DIBP independent assessment, you have been assessed as fit for duties for full-time standard hours, and – the medical certificate dated 23/1/17 covering Friday 20Jan has been provided retrospectively by your GP. Your approved appointment time of 2:45 pm Monday afternoon with GP occurred approx. 77 hrs after you left office at 9:15am Friday). The GP cannot accurately diagnose the exact severity of your shoulder pain retrospectively. This 6hrs and 45min of unscheduled leave will be processed as unpaid leave. I have reviewed the DIAC EA and consulted with HR, and confirmed that other types of leave (such as Annual Leave) are not appropriate in this specific circumstance…
[133] Ibid, at 114.
It is difficult to understand why the applicant’s supervisor is so sceptical about his reporting of pain. Dr Oppermann in his earlier report reported on the applicant’s presentation to him in the following way:[134]
Mr Samy’s ongoing symptom report and physical examination findings I would accept as remaining consistent with the nature of his underlying degenerative condition of the cervical spine. As per my responses above, his presentation was suggestive clinically of possible adhesive capsulitis of the left shoulder.
[134] Third Set of Tribunal Documents, T6.1, folio 79.
There is no suggestion that the applicant’s pain is feigned or that he does not suffer from a serious condition in his cervical spine. Indeed, Dr Oppermann suggested that additional pain medication be trialled.
On 23 January 2017, Dr Vrancic emailed the applicant saying:[135]
I have many patients with bursitis who are able to work normal hours of suitable duties, and as such I am not able to update the report for you.
I am happy to list Endone and Lyrica for you on a new letter, but again I have many patients on these medications who are able to do normal hours.
[135] Second Set of Tribunal Documents, T21B, folio 144.
On 25 January 2017, Dr Vrancic prepared a further report for the applicant’s GP. She noted the applicant’s report to her of the effect of Endone.
She also recommended a graduated return to work given that the applicant had been working restricted hours for 18 months and that work conditioning was difficult when there was a chronically painful shoulder issue.[136]
[136] Exhibit A8, at 117.
On 30 January 2017, the applicant queried why he was not allowed to have the personal leave taken on 20 January 2017 approved without evidence given that five days were usually approved without evidence for other employees of the Department.[137] He also outlined his attempts to get a GP appointment on the day.
[137] Ibid, at 119 -120.
The applicant’s supervisor responded saying:[138]
You clearly stated that your pain was in your shoulder, which relates directly to the current DIBP independent medical determination that you are fit-for-duties. We have discussed on multiple occasions that the only ‘sick leave’ that will be granted regarding this issue is to attend GP/other specialists. That is why your sick leave request for Monday 23 Jan was approved.
This reference to your ongoing shoulder issues is the reason why ‘sick leave without medical certificate’ is not a valid (sic) in this specific instance, as this would go against the DIPBP independent medical determination.
[138] Ibid, at 118.

On 7 November 2017 Dr Gunapu, consultant psychiatrist, reported on the applicant’s psychological condition.
This history given to Dr Gunapu was in the following terms:[160]
Mr Samy made a return to work after 1 ½ years of break. This was following a review by Dr Oppermann where he was “cleared” for work and the contentious issue was whether Mr Samy was fully cleared without any restrictions or whether he was meant to have restrictions. Mr Samy believes that Dr Oppermann’s report although had cleared him for full hours that reasonable adjustments need to be made (Mr Samy is of the opinion that if one reads the report properly the adjustments are mentioned in the report).
Mr Samy said that prior to his commencement of work on 10 January 2017 he requested a GP conference which was apparently ignored. He said at that meeting of 10 January 2017 he had asked his employers to consider not to return him to full-time work or consider part-time work as he thought he will not be able to cope with the full-time load. He believed that they completely ignored his request and took him as “a fully fit worker”….He was “overloaded” with increasing levels of typing. He said he felt that he was given much lesser time-frames to prepare project reports, for example, he said others would get time-frames of a month, three to four weeks and he would get time-frames of a few days, seven to ten days. He said “they were managing him out”. He said looking back he felt that irrespective of whatever he did they would have managed him out.
…He said they were simply managing him out and that essentially there had been no major changes in his performance. Mr Samy said he was given warnings because once he slept at work which was in March and another time was when he looked at his phone in April and Mr Samy acknowledged that these were errors in judgment on his part but felt that his manager used that as an excuse to bully him and make it difficult for him.
[160] Third Set of Tribunal Documents, T24, folio 467 – 468.
The applicant reported a gradually deteriorating mood with peak symptoms in May/June 2017.
Dr Gunapu concluded:[161]
A man with no previous history of psychological symptoms who appears to have an adjustment disorder in the context of what he perceives as an unfair amount of workload and inappropriate management of his injury. He felt he was burdened with work. In my view, he has developed an adjustment disorder. It appeared the adjustment disorder has progressed to a major depressive disorder. The symptoms can best be described as adjustment disorder in the timeframe of January to March/April after which he appears to have progressed to clinical depression where he lost interest and became withdrawn, and his mood became progressively low; developed a loss of hedonic drives. This progressive worsening was in the context of receiving warnings and his condition worsened to a depression once he was put on a performance management plan.
…The factors responsible initially for the adjustment disorder were his perceptions that he was being overloaded with typing jobs and he also felt that the employer was “managing him out”. However after he received warnings and was put on a performance plan, his condition escalated into a major depressive disorder…It is difficult to ascertain the level of contribution of each factor, however generally most of the factors are related to employment. The ongoing pain levels would be the less likely cause of the adjustment problem.
[Emphasis added]
[161] Ibid, folio 470 and 472.
Dr Ash Takyar
The applicant saw another consultant psychiatrist, Dr Takyar, at the instigation of his then lawyers. He saw Dr Takyar on 4 November 2019. Dr Takyar reported on the applicant on 18 November 2019.
Dr Takyar reports on what prompted the change in the applicant’s mental state:[162]
I asked him when his mental state changed and he provided an answer in relation to pain and the effect of pain medication but did not clearly seem to be able to answer the question. I asked him again and he reported that he started to feel “sweaty and depressed and anxious when I started to work around 10 January when I knew I couldn’t take medical leave, 2017”.
[Emphasis added]
Dr Takyar concluded:[163]
The history of the injury is detailed above with respect to the development of psychological changes in the context of physical pain and physical injuries occurring in the course of his duties…He presents with a DSM-5 adjustment disorder with mixed anxiety and depressed mood (chronic).
[162] Exhibit A1, at 4.
[163] Ibid, at 8.
It is also clear from the report of the applicant’s psychologist that he was distressed by the fact that ‘his workplace did not accommodate his pain problem and he felt forced to work despite his physical symptoms and limitations’ [emphasis added].[164]
[164] Exhibit A2, at 3.
Submissions
There was a lack of precision in the way in which the applicant put his case in relation to his psychological condition. It was, however, always clear that he was not simply asserting that he developed a psychological illness as a result of prolonged pain from a compensable condition. Consequently, notwithstanding that I am satisfied that his main physical condition is not compensable, it is possible that the psychological condition may be separately compensable as arising from workplace events in late 2016 and early 2017.
The applicant has always put his claim on that broader basis.
The applicant’s Statement of Facts, Issues and Contentions (SOFIC) filed on 11 December 2018 stated as follows:[165]
13.18 On 7 November 2017, Dr Gunapu diagnosed the Applicant with major depressive disorder of mild intensity. Dr Gunapu opined the ‘factors responsible initially for the adjustment disorder were his perception that he was being overloaded with typing jobs and he also felt that the employer was ‘managing him out’. However, after he received warnings and was put on a performance plan, his condition escalated to a major depressive disorder’….
…
15.3 The claimed condition was contributed to, to a significant degree, by the Applicant’s employment with the Department.
15.4 The Applicant was forced to continue to work with ongoing pain. The Applicant’s request to return to work on a reduced or part time basis, or at a graduated return to work which was supported by Dr Vrancic and Dr Jayasekera, was ignored by DIPB….
15.6 DIBP ignored reasonable medical advice with respect to implementing a graduated return to work plan for the Applicant.
15.7 DIBP treated the Applicant with no regard to his ongoing injuries and resultant pain, requiring the Applicant to complete tasks that his employer knew, or ought to have known, were not within the Applicant’s capabilities as a result of his injuries.
15.8 DIBP did not acknowledge the Applicant’s medical certificate or the Applicant’s subsequent requests for sick leave. DIBP did not permit the Applicant to take time off work in relation to his claimed conditions. DIBP did not make a Dictaphone available to the Applicant, when it was asserted that Dragon dictation was not a viable option due to the Applicant’s accented speech.
15.9 The Return to Work plan implemented by DIBP was unreasonable and contributed to the development of the Applicant’s claimed condition to a significant degree.
[165] SOFIC filed by Slater and Gordon Lawyers on 11 December 2018.
After the evidence had closed, and by way of a closing written submission, the applicant filed a further document on 31 May 2020.
In it, the applicant contended that the determination made to return him to work was made on an incorrect assumption – that the applicant was fit to return to work without restrictions. Since the assumption was wrong the determination was invalid.
He also contended that the Department took medical reports out of context and picked and chose selected information. It also consistently ignored and disregarded the advice of the applicant’s medical practitioners. It considered a fitness for duty report from a particular date to be valid for months after the date of the report and took an irrational view that the applicant would never be entitled to sick leave for his left shoulder and left neck pain after the report. As a result, the applicant was forced to work with pain or under the influence of medication that made the applicant drowsy. The applicant was subject to humiliation by his manager and performance managed in the presence of contractors, other employees and junior colleagues despite having an injury and the Department not complying with recommended work restrictions. The Department ignored reasonable medical advice with respect to implementing a gradual return to work plan for the applicant. The Department did not permit the applicant to take time off work in relation to his claimed conditions. The Department did not make a Dictaphone available to the applicant when it was determined that Dragon dictation software was not a viable option due to the Applicant’s accented speech.
The respondent contends that:
(a)Whilst there is evidence which is capable of establishing the applicant has suffered a psychological condition, the evidence reveals that the potential causes of that condition and exactly when it arose are simply not clear.
(b)In the event that the Tribunal were to identify any employment factors as being safely established by the evidence as causative of any psychological condition, then those factors can be fairly characterised as ‘reasonable administrative action’. In making that assessment the respondent urges the Tribunal to take into account the employer’s management of the applicant’s physical condition which began as early as August 2015.
(c)The Department’s decision to secure the assessment from Dr Oppermann, the result of that assessment and the decision to implement that assessment can be fairly characterised as the ‘event without which the employee’s ailment or aggravation would not have been a disease’ (reflecting the relevant test laid down by the High Court in Comcare v Martin [2016] HCA 43).
(d)The administrative action was reasonable in its conception and its execution for the following reasons:
(i)In the period from August 2015 until December 2016 the applicant had been the recipient of great latitude from the Department in respect of the flexible approach adopted to allow him to dictate the course of his own rehabilitation.
(ii)A further advantage which accrued to the applicant was that performance concerns previously raised were put on hold in this period. Further, he was given work at a ‘lower level’, commensurate with his physical ailment.
(iii)Return to work plans in 2016 were met by the applicant taking immediate leave (16 March 2016) and then later, there was no expected increase in the applicant’s work hours.
(iv)The contents of Dr Oppermann’s report were unambiguous in dispelling any questions about the applicant’s work capacity and also raised questions about the applicant’s motivation in respect of work.
(v)Dr Oppermann’s independence was unimpeachable and there was simply no reason for the Department to disregard his recommendations.
(vi)The applicant was given ample opportunity to gather and produce evidence to challenge Dr Oppermann’s assessment.
(vii)The Department would have been reasonably suspicious of any representations raised by the applicant in light of what ensued with his claims in respect of the effect of the medications.
(viii)The directions of 6 February 2017 (which directed the applicant to work full time and effectively ruled out the taking of sick leave in relation to his shoulder and neck) were reasonable in respect of the observed behaviour of the applicant in the workplace. The direction in regard to personal leave involved an application of clause 7.81 of the Enterprise Agreement as the applicant was seeking leave in respect of a medical condition for which he had been certified as fit for work by Dr Oppermann.
(ix)The applicant submits his appeal on 16 February 2017. By 20 of March the appeal was rejected. The contradictory material from Dr Vrancic – now highlighted by disclosure of the email of 23 January 2017 was a sufficient basis for the rejection of the applicant’s appeal. In addition, Dr Vrancic said there was no new evidence.
(x)The weight of the evidence indicates that the applicant was deliberately non-compliant with all of the efforts made from October 2016 onwards to facilitate the use of the Dragon dictation software.
(xi)These events set the scene for the implementation of the first stage of the performance management process in late March. The Tribunal has already been directed to the well-documented evidence set out in the T documents in respect of the steps taken which led to the implementation of that decision. In all respects that step can be characterised as reasonable management action, falling outside the exclusionary proviso in section 5A of the SRC Act.[166]
[166] Commonwealth Bank of Australia v Reeve and another (2012) 199 FCR 463.
Analysis
There is clear medical evidence that the applicant is suffering from a psychological disease – an adjustment disorder which at least at one point in time developed into major depression. Dr Oppermann raised concerns about the applicant’s psychological state when he saw him in July 2017. Dr Gunapu and Dr Takyar have confirmed that what Dr Oppermann observed was a psychological illness.
The applicant’s adjustment disorder and major depression is best understood as an ailment and accordingly needs to be dealt with as a disease under the SRC Act. For the respondent to be liable to pay compensation, the applicant must establish that his ailment was contributed to, to a significant degree by his employment.
The medical evidence supports the conclusion that this is the case.
Dr Gunapu described the cause of the condition in the following terms:[167]
…The factors responsible initially for the adjustment disorder were his perceptions that he was being overloaded with typing jobs and he also felt that the employer was “managing him out”. However after he received warnings and was put on a performance plan, his condition escalated into a major depressive disorder…It is difficult to ascertain the level of contribution of each factor, however generally most of the factors are related to employment. The ongoing pain levels would be the less likely cause of the adjustment problem.
[167] Third Set of Tribunal Documents, T24, at 472.
Dr Takyar’s report on what contributed to the applicant’s condition is more ambiguous as a consequence of not being asked to specifically address the question of whether the applicant’s employment significantly contributed to his psychological disorder. However, when the report is examined as a whole it is reasonable to proceed on the basis that the cause of the applicant’s psychological problems lie not in the pain he suffered from as a result of his injury, but how his employer treated him in the course of the return to work process.
As stated earlier in my decision, Dr Takyar’s report on what prompted the change in the applicant’s mental state is in the following terms:[168]
I asked him when his mental state changed and he provided an answer in relation to pain and the effect of pain medication but did not clearly seem to be able to answer the question. I asked him again and he reported that he started to feel “sweaty and depressed and anxious when I started to work around 10 January when I knew I couldn’t take medical leave, 2017”.
[168] Exhibit A1, at 8.
It is also clear from the report of the applicant’s psychologist, Victoria Coghlan, that he was distressed by the fact that ‘his workplace did not accommodate his pain problem and he felt forced to work despite his physical symptoms and limitations’ [emphasis added].[169]
[169] Exhibit A2, at 3.
In light of these reports, I am satisfied that the treatment of the applicant by his employer following the delivery of the first report by Dr Oppermann, including:
(a)the giving of the direction that he return to work full time and the associated administrative processes;[170]
(b)the refusal of sick leave in relation to pain in his shoulder and neck;[171] and
(c)the commencement of the performance management process,[172]
significantly contributed to him developing the adjustment disorder and major depression which developed in 2017.
[170] See Exhibit A1, at 8 (where the applicant reports his mental state changing when he started to work around 10 January when he knew he couldn’t take medical leave).
[171] See Exhibit A8, at 148 and Exhibit A2, at 3 (where the applicant reports that his workplace did not accommodate his pain problem and he felt forced to work despite his physical symptoms and limitations).
[172] See Third Set of Tribunal Documents, T24, folio 467 – 468 (where the applicant reports, to Dr Gunapu, his perceptions that he was being overloaded with typing jobs and he also felt that the employer was “managing him out”).
I am also satisfied that without this course of conduct, the applicant would not have suffered the ailment at all, nor is there any other workplace contribution which would account for the applicant suffering his psychological ailment.
Further, I accept that this conduct is appropriately characterised as administrative action given that it is action taken in respect of the administration of the relationship of employer and employee, as between the particular employee making the claim and the employer in its capacity as employer.[173]
[173] Commonwealth Bank of Australia v Reeve and another (2012) 199 FCR 463.
Consequently, if this course of conduct can be characterised as reasonable administrative action taken in a reasonable manner, then the exclusionary words of section 5A of the SRC Act operate and the applicant’s condition would not be compensable.
The respondent submits that the condition is not compensable because it was suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.
I do not accept that submission.
The administrative action taken to return the applicant to work and commence performance management of him was unreasonable. Whether the component parts of the conduct are assessed individually or the course of conduct assessed overall, the conclusion is the same. The key findings on which these conclusions are based are as follows.
First, it was unreasonable to give a direction to an employee, who has been on reduced hours for over 15 months, that he must report for full time work without restriction in circumstances where:
(a)he had only had a limited opportunity to consider the report on which the direction was based (less than 7 days);
(b)the direction was given immediately prior to Christmas in circumstances where the employee had explained that he could not get evidence from his treating doctors for his employer to consider until his treating doctors returned from Christmas leave which was 17 January 2017; and
(c)he had been told he had 14 days to respond to the report and only 7 of those days had passed.
Second, it was unreasonable to treat Dr Oppermann’s report as effectively prohibiting the grant of personal leave for anything to do with the applicant’s ongoing accepted injury for an indefinite period. Dr Oppermann’s report made clear that the applicant was carrying an injury. His disagreement with the applicant’s doctors was about the extent to which the injury prevented the applicant from undertaking full time work. Dr Oppermann accepted that the applicant suffered from pain as a result of this injury and it needed to be treated. Dr Oppermann accepted that the applicant’s ability to type was significantly restricted. Nothing in Dr Oppermann’s report suggested the applicant was making up his injury or malingering. Nothing in the report addressed the question of whether the applicant might need days off work if his pain was aggravated by the work he was asked to do. Nothing in his report indicated that the applicant did not need ongoing treatment in relation to his well-established injury. To treat that report as effectively prohibiting the applicant from taking any personal leave at all in relation to his injury from 10 January 2017 was, on any view, unreasonable. It was an approach which was not supported by any policy of the Department to which my attention has been drawn.

Third, it was unreasonable not to put the views of the applicant’s doctors to Dr Oppermann. The Department had, at the outset, outlined an approach to decision making which involved giving the applicant an opportunity to provide evidence to persuade Dr Oppermann that he may not have reached the correct conclusions on the single occasion on which he had examined the applicant. Having foreshadowed that process, to resile from it was unreasonable. Had the Department honoured the process it originally outlined, it would have allowed Dr Oppermann to view medical reports which included quite moderate common sense recommendations from the applicant’s treating doctors like allowing the applicant an opportunity to undertake a graduated return to work in light of his extended period of reduced hours.[174]
[174] Second Set of Tribunal Documents, T7, at folio 38.
Fourth, it was unreasonable to use the fact that the applicant fell asleep at work as grounds for performance management. It was known that the applicant was taking Endone and one of the consequences of Endone was that it made the applicant drowsy. Having insisted that the applicant return to work full time, and knowing that the applicant was using Endone with his treating doctor’s approval and having been warned about the side effect of drowsiness, it was unreasonable to include sleeping at work as a basis for triggering performance management.
There is nothing in the respondent’s submissions on the reasonableness of the Department’s conduct which alters my conclusions. Set out below are the respondent’s submissions and my response to them italicised.
(i)In the period from August 2015 until December 2016 the applicant had been the recipient of great latitude from the Department in respect of the flexible approach adopted to allow him to dictate the course of his own rehabilitation – The applicant had a significant amount of accrued personal leave which subject to the provision of proper evidence he had a legal right to take.[175] It is inaccurate to describe this as affording latitude. Further, if the Department did not consider that it could obtain useful work from the applicant on restricted hours, it was entitled to direct him to take personal leave until such time as he could perform all of his duties. Even if that were not the case, the fact that the Department had been reasonable, or even accommodating in the past does not make their subsequent unreasonable actions any more reasonable.
(ii)A further advantage which accrued to the applicant was that performance concerns previously raised were put on hold in this period. Further, he was given work at a ‘lower level’, commensurate with his physical ailment - Again, reasonable or even beneficial treatment accorded to the applicant prior to the unreasonable action which resulted in the employee developing a disease is irrelevant.
(iii)Return to work plans in 2016 were met by the applicant taking immediate leave (16 March 2016) and then later, there was no expected increase in the applicant’s work hours – The applicant being a difficult employee to manage does not create a licence for his employer to act unreasonably in its dealings with him at a later point in time.
(iv)The contents of Dr Oppermann’s report were unambiguous in dispelling any questions about the applicant’s work capacity and also raised questions about the applicant’s motivation in respect of work – Dr Oppermann’s report required careful reading as to what decisions it could support. Dr Opperman accepted the applicant had an injury and was restricted in his ability to type. The fact that the report was clear that the applicant had capacity to work full time rendered it reasonable, subject to a proper process, to return the applicant to full time work, but not to disregard entirely the limitations his injury imposed and the need for it to be treated on an ongoing basis.
(v)Dr Oppermann’s independence was unimpeachable and there was simply no reason for the Department to disregard his recommendations – Dr Oppermann’s report provided the foundation for the beginning of the process of returning the applicant to full time work. It did not entitle the Department to treat the applicant as if he was not suffering from an injury or to pretend that it had in place means of managing that restriction when, due to the failure of Dragon, it did not.
(vi)The applicant was given ample opportunity to gather and produce evidence to challenge Dr Oppermann’s assessment – I cannot accept this submission. The applicant was required to return to work full time prior to his treating doctors returning from their Christmas holidays. When the applicant assembled that evidence the Department refused to put the new reports before Dr Oppermann on the basis that they were not ‘new evidence’.
(vii)The Department would have been reasonably suspicious of any representations raised by the applicant in light of what ensued with his claims in respect of the effect of the medications - I do not understand this submission. There is no doubt the applicant was taking Endone. The applicant was clearly drowsy at work. There was a medical report from the previous year which noted his use of Endone. In addition to the applicant’s own evidence on the subject, he was drug tested and returned a positive result for opiates in March 2017. Further he had reported the effect on 2 June 2016 to Dr Andrews, in circumstances where there was no obvious secondary gain in doing so. While Dr Oppermann was clearly suspicious about the effect of Endone for reasons which he sensibly explained at the time, if he had had an opportunity to discuss the issue with the applicant’s treating doctors those suspicions may have been allayed.
(viii)The directions of 6 February 2017 (which directed the applicant to work full time and effectively ruled out the taking of sick leave in relation to his shoulder and neck) were reasonable in respect of the observed behaviour of the applicant in the workplace. The direction in regard to personal leave involved an application of clause 7.81 of the Enterprise Agreement as the applicant was seeking leave in respect of a medical condition for which he had been certified as fit for work by Dr Oppermann – I cannot accept this submission. Dr Oppermann’s report confirmed that the applicant had an injury which significantly restricted his ability to type. Dr Oppermann did not rule out the applicant needing treatment in relation to that condition or the possibility that the condition might be temporarily aggravated thus requiring time off. The applicant had accrued personal leave and was entitled to take it if his symptoms worsened. Clause 7.81 is irrelevant. It relates to ‘unpaid personal leave’ which the applicant never attempted to take.
(ix)The applicant submitted his appeal on 16 February 2017. By 20 March the appeal was rejected. The contradictory material from Dr Vrancic – now highlighted by disclosure of the email of 23 January 2017 was a sufficient basis for the rejection of the applicant’s appeal. In addition, Dr Vrancic said there was no new evidence – As noted above, the reasons for refusing to go back to Dr Oppermann with the views of the applicant’s treating doctors were flimsy. The Department should have honoured the substance of the process which it had promised in December 2016. It was unreasonable for them not to.
(x)The weight of the evidence indicates that the applicant was deliberately non-compliant with all of the efforts made from October 2016 onwards to facilitate the use of the Dragon software – There is no evidence for this conclusion. The applicant has provided numerous documents which indicate that the problems which he claims were occurring were real.[176] It was frustrating to his supervisors that Dragon was not working effectively and perhaps their suspicion of self-sabotage were understandable. However, there was no systematic examination of the issue which established that the problems the applicant was reporting in his use of Dragon were manufactured rather than real. I note that this submission was not supported by reference to any material in the evidence.
[175] Fair Work Act2009 (Cth) s 97.
[176] See for example Exhibit A8, at 54 – 62 and 86.
I do not doubt that the applicant was a difficult employee to manage and hard to obtain useful output from. However, the frustration that his supervisors undoubtedly felt with his subpar effort and performance appears to have led them to over-reach once they had in their possession the report of Dr Oppermann.
From December 2016 until the applicant ceased work, the applicant was managed in an unreasonable fashion by the Department and that caused him to develop a psychological condition. As a consequence, that condition is compensable under the SRC Act.
I am satisfied that the respondent is liable to pay compensation in relation to the applicant’s adjustment disorder with major depression pursuant to section 14 of the SRC Act. The extent of compensation payable is for the respondent to determine.
DECISION
In relation to Tribunal application 2016/4373, the reviewable decision dated 12 July 2016 which denied liability for compensation under section 14 of the SRC Act in respect of ‘subacromial bursitis (left)’ alleged to have been sustained on 18 August 2015, is affirmed.
In relation to Tribunal application 2018/3189, the reviewable decision made on 18 July 2018 which denied liability for compensation under section 14 of the SRC Act in respect of ‘subacromial bursitis (left), impingement of left C6 nerve root and sustained on 18 August 2015 and the effects of the medication related to the related pain’, is affirmed.
In relation to Tribunal applications 2017/4897, the reviewable decision dated 28 July 2017, which denied liability for compensation under section 14 of the SRC Act in respect of ‘left shoulder injury’, is set aside. In substitution, the Tribunal decides that the respondent is, pursuant to section 14 of the SRC Act, liable to pay compensation to the applicant for a temporary aggravation, sustained on 7 April 2017, of his underlying shoulder condition.
In relation to Tribunal application 2018/4005, the reviewable decision made on 18 July 2018 which denied liability for compensation under section 14 of the SRC Act in respect of ‘neck injury sustained on 7 April 2017 and the effects of the medication related to the related pain,’ is affirmed.
In relation to Tribunal application 2018/0565, the reviewable decision made on 15 December 2017, which denied liability for compensation under section 14 of the SRC Act in respect of ‘depression and post-traumatic stress disorder’, is set aside. In substitution, the Tribunal decides that the Respondent is liable to pay compensation to the applicant for adjustment disorder and major depression, pursuant to section 14 of the SRC Act.
The parties have not been heard in relation to orders for costs. Written submissions in respect of costs may be made within 14 days of this decision. Should no such submissions be received during this time, the Tribunal will order the respondent to pay the applicant’s reasonable costs and disbursements of Tribunal applications 2017/4897 and 2018/0565 (or relating to the incident of 7 April 2017 and the psychological claim).

I certify that the preceding 233 (two hundred and thirty three) paragraphs are a true copy of the reasons for the decision herein of Senior Member D O’Donovan.

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Associate
Dated: 2 October 2020

Date(s) of hearing: 2 – 4 March 2020 and 4 – 5 June 2020

Applicant: In person

Solicitor for the Respondent: Mr Luke Woolley, Sparke Helmore Lawyers
Counsel for the Respondent Mr Charles Clark

[2020] AATA 3850

2 October 2020

Key Legal Topics

Areas of Law

Employment Law

Statutory Interpretation

Legal Concepts

Causation

Remedies

Date(s) of hearing:	2 – 4 March 2020 and 4 – 5 June 2020
Applicant:	In person
Solicitor for the Respondent:	Mr Luke Woolley, Sparke Helmore Lawyers